Does it matter that almost all juries in England and Wales are all-White? Does it matter, even if this result is the unintended and undesired result of otherwise acceptable ways of choosing juries? Finally, does it matter that almost all juries are all-White if this has no adverse effect on the treatment of non-White defendants and victims of crime? According to Cheryl Thomas, there is no injustice in a system of jury selection, which predictably results in juries with no minority members, so long as this result is not deliberate and does not adversely affect the treatment of minority defendants and victims of crime. My view is different. In and of itself, I believe, something is wrong with a system of jury selection that predictably results in all-White juries in a diverse society, such as our own. Absent reason to believe that we lack a better alternative to current modes of jury selection, a commitment to democratic government and to the equality of citizens – or so I will argue – condemns existing arrangements as unjust, whether or not they have adverse effects on jury decisions, or on the ways in which our society approaches issues of race and crime.
An Iowa Supreme Court justice, federal district judge, and an Iowa lawyer take a fresh look at the emerging jury trial innovation of jurors asking questions of witnesses (the “practice”). The authors start with the first combined comprehensive analysis of Eighth Circuit and Iowa appellate case law on the practice. This analysis reveals some interesting twists and turns, including substantial differences between the two jurisdictions’ case law and the fact that the Iowa Supreme Court first mentioned the practice more than 130 years ago in 1884. The authors incorporate and discuss prior surveys on the subject but, more importantly, conduct their own extensive and probing empirical study. This study is based on data collected from five online surveys, one each for Iowa trial court judges, federal district judges in the Eighth Circuit, and magistrate judges in the Eighth Circuit, and for two cohorts of Iowa lawyers, all conducted in the fall of 2015. The authors found a dramatic difference in virtually all of the components of the study between lawyers and judges who have experienced the practice (the clear minority) and those that haven’t (the clear majority). The authors conclude that the positive benefits of allowing jurors to question witnesses far outweigh the few negatives and provide a suggested written protocol to encourage judges who have been reluctant to try the practice to take the small leap.
The decisions of St. Louis County Prosecuting Attorney Robert McCulloch during the grand jury investigation of the shooting of Michael Brown by Officer Darren Wilson in Ferguson, Missouri, have been criticized on a variety of grounds. In an article written for a Missouri Law Review symposium on the shooting and its aftermath, and titled "No, You Stand Up": Why Prosecutors Should Stop Hiding Behind Grand Juries," my good friend Professor Ben Trachtenberg takes Mr. McCulloch to task for allowing the grand jury to deliberate without making a recommendation about whether charges should be filed. Professor Trachtenberg asserts that, at the close of the evidentiary presentation to the grand jury, Mr. McCulloch did not believe there to be probable cause and that, accordingly, McCulloch should either not have allowed the grand jury to deliberate at all or should at the least have recommended against indictment due to lack of probable cause. Professor Trachtenberg strongly intimates that Mr. McCulloch behaved unethically, and asserts forthrightly that McCulloch acted out of political self-interest and failed to properly fulfill the functions of his office.
Whatever the merits of other criticisms of Mr. McCulloch, Professor Trachtenberg's particular criticisms seem misconceived. This Article makes the case that, so far as appears from the public record, Mr. McCulloch conducted the Brown-Wilson investigation in compliance with Missouri law, violated no ethical rule, and, at least in his office's relations with the grand jury, proceeded professionally and in a manner calculated to promote the public interest
Despite the early American jury’s near-mythical role as a check on overreaching government agents, the contemporary jury’s role in constitutional adjudication remains opaque. Should the jury have the right to nullify criminal statutes on constitutional grounds? Should the jury apply constitutional doctrine in civil rights suits against government officers? Should courts of appeals defer to the jury’s application of constitutional law, or review it de novo?
This Article offers the first holistic analysis of the jury’s role in constitutional adjudication. It argues that the Constitution’s text, history, and structure strongly support the jury’s authority to apply constitutional law to the facts of a case and offer solid, though mixed, support for the longstanding doctrine against the jury’s right to nullify statutes on the basis of its own constitutional view.
The Article furthermore makes a case for the jury’s unique “constitutional competence.” Composed of a diverse group of lay people, the jury brings popular values to bear on the application of constitutional law. By deferring to the jury’s reasonable constitutional judgments, courts make room for popular constitutional norms on a case-by-case basis without forgoing the responsibility to “say what the law is.” The resulting constitutional construction is a middle ground between judicial supremacy and judicial abnegation that promises a more symbolically and substantively democratic constitutional law.
Multidistrict litigation encompasses today a wide variety of litigations from mass torts to human rights violations. The increasing number of cases in multidistrict litigation has necessitated new mechanisms to save time and money. Bellwether trials or test trials offer federal judges the possibility to determine the outcome of future cases by subjecting sample representative case to jury trial. The result of the bellwether trial can be extrapolated and used in other proceedings. However, binding bellwether trials have been held to be unconstitutional as violating the Seventh Amendment to the US Constitution. Since the Cimino case in 1998, courts have been reluctant to make use of binding bellwether trials.
This paper analyses the validity and constitutionality of binding bellwether trials by arguing that binding bellwether trials do not violate the right to jury trial under the Seventh Amendment, because complex civil litigation did not exist in 1791. Also, it analyzes the accurate methodology of sampling and extrapolation in order to achieve the most accurate sample trial. Lastly, the doctrine of collateral estoppel provides some guidance for validity of binding bellwether trials.
This article takes a look back at two of the major opinions of the criminal procedure revolution - Duncan v. Louisiana and Baldwin v. New York - and contends that, in retrospect, extending the right to jury trial to all felonies and misdemeanors was a mistake. Instead of protecting defendants from the power of the state, these decisions have had the opposite effect: criminal trials are increasingly rare and those defendants who dare to insist on their rights pay a substantial and sometimes brutal price if convicted.
The article makes its case comparatively by taking a look at two other common law countries - England and Canada. Each has two trial courts and two trial models for most felonies and all misdemeanors. The two models are distinguished in such a way that it is usually to the strong advantage of both prosecutors and defendants to opt for the simpler nonjury trial model if possible. Prosecutors get a much shorter trial and defendants are assured a rather lenient sentence if they are convicted. This contrasts sharply with the United States where only one trial model is available and it is strongly to the prosecutor’s advantage to charge as high as ethically possible for plea-bargaining leverage.
We often lament “the vanishing trial” in the United States. But Canada and England show there are options we could take to make more trials available for defendants without requiring additional resources. But, first, we must begin by reconsidering the wisdom of what the Court did in Duncan and Baldwin.
Whatever the lawyer fears, whether it is an issue of race in the case or unconscious biases in jurors that may affect how they decide the case, the lawyer must address the fears during jury selection. If the lawyer does not explore what the lawyer fears about the case during jury selection, the lawyer has failed to increase the odds that the jury will consider the client’s case fairly. If the defense lawyer does not mention race during jury selection when race matters in a case, racial bias can be a corrosive factor eating away at any chance of fairness for the client.
When race matters in a case, it plays a role in the outcome, just like the state’s burden of proof, the credibility of witnesses, the identification of the defendant-client, how the jury views the police involved in the case, or, if the client testifies, how believable the jury thinks the client is. Race matters to this degree because race affects the way jurors view each of these issues.
This Essay addresses the importance of a trial lawyer discussing the lawyer’s fears about a case, including issues of race, in jury selection. Part I explains why race matters and how important race-salient jury selection is, especially when race is not an obvious issue in the case. Part II argues that discussing topical issues that may affect how jurors approach a case, especially those issues in the community in which a trial is taking place, is a necessary subject for juryselection. Finally, Part III uses events in Ferguson, Missouri, in 2014, to suggest how an attorney could approach discussing a topical matter, such as Ferguson, with the panel of prospective jurors.
The right of an accused to trial by jury has traditionally been seen as a fundamental protection for the citizen against the Crown, and, in the words of Lord Devlin, it is “the lamp that shows that freedom lives”. As such, it should be remembered that trial by jury is a right of the accused, rather than the right of the community. This paper does not seek to consider all issues concerning the defendants’ rights in criminal jury trials in New Zealand. Rather, the parameters of this paper are constrained to exploration of several key issues pertaining to the defendant’s interest in peer representation. The Law Commission has revisited the issue of peer representation several times in the past few decades. Although acknowledging present jury representation issues, the Law Commission continues to emphasize the community’s interests over the defendant’s fair trial rights affirmed in the New Zealand Bill of Rights Act 1990. This paper therefore analyses the failures of present jury representation from the defendant’s point of view and contemplates how peer representation may best be achieved, with a focus on the source of one’s peers, but also with due consideration of the impact of in-court jury selection procedures.
The investigations of local police officers for causing the deaths of unarmed civilians in Ferguson, Missouri and Staten Island, New York have generated significant national discourse about the fairness and transparency of grand jury proceedings. This article addresses one crucial aspect of this ongoing debate; that is, whether witnesses before the grand jury should be allowed to talk to each other and to the media about the contents of their testimony.
In the federal system and in the majority of states that still employ the grand jury as an investigative and charging tool, obligations of grand jury secrecy do not extend to the witnesses themselves. Only persons performing an “official function” before the grand jury are typically covered by the oath of secrecy. Absent a contract or court order, grand jury witnesses are free to talk with each other and to the media. Nevertheless, prosecutors often seek to handcuff grand jurywitnesses in talking to others about their testimony by drafting one-sided cooperation agreements that impose obligations of confidentiality on grand jurywitnesses in exchange for charging or sentencing concessions. Courts on occasion also impose gag orders on grand jury witnesses as part of formal immunity orders. In this article, the author argues that such efforts by prosecutors and courts to impose secrecy obligations on grand jury witnesses violate attorney discipline rules and the First Amendment. As importantly, they impede the target’s access to information essential to enable him to marshal a defense, thus undermining the grand jury’s historic function as a shield against unfounded prosecutions.
The goals of this paper are twofold. First, it describes and tests a basic organizing framework for when a plaintiff’s race, ethnicity, and gender are most likely to impact civil jury awards. The framework takes into account psychological and structural sources of bias, and the ways in which they can be expected to interact systematically with instructions that provide jurors with more or less discretion. Second, the paper introduces a methodological innovation to overcome one of the primary barriers to empirical field research on race bias in civil legal decisions: the absence of party demographic information. The data set is comprised of jury verdicts in tort cases combined with information from the U.S. Census Bureau regarding race and ethnicity. Statistical tests measure the relationships between race, ethnicity, gender and awards for economic damages and pain and suffering. Overall, the results were consistent with the psycho-structural framework. Where jurors had discretion (i.e., pain and suffering damages) they awarded less to Black plaintiffs than to White plaintiffs. Where jurors had less discretion (i.e., lost income) they awarded less to female plaintiffs and more to Asian plaintiffs than to male and White plaintiffs, respectively, a reflection of structural income disparities. This paper thus presents a novel and useful framework and method for understanding how structural and psychological factors lead to differential jury awards.