The Australian state of Victoria has, over the past thirty years, introduced and made numerous reforms to a set of jury directions which purport to address concerns that rape trials do not adequately respond to the reality of sexual offending in the community. In this article we argue that the theatrical nature of the trial process, in combination with a set of problematic assumptions which preclude the capacity for women to “consent” or “refuse consent”, result in the reassertion of traditional rape narratives that the jury directions alone are not adequate to shift.
The Constitution protects us from criminal conviction unless the state can prove guilt beyond a reasonable doubt. However, many of our nation’s trial courts will conclude their burden of proof instructions by telling jurors not to evaluate the evidence for doubt, but instead “to search for the truth” of what they think really happened.
In our previously published study, we empirically demonstrated that such truth-related language lowers the state’s burden of proof below the constitutionally-guaranteed reasonable doubt standard. In this article, we discuss the results of our new empirical study — a conceptual replication and extension of our previous work.
In our new study, we again found a statistically significant difference in conviction rates between mock jurors who were properly instructed on reasonable doubt, and mock jurors who were instead instructed “to search for the truth.” Additionally, we identified a cognitive link between the truth-related jury instruction and the increased conviction rate.
More specifically, mock jurors who were instructed “to search for the truth” were nearly twice as likely to mistakenly believe they could convict the defendant even if they had a reasonable doubt about his guilt. Further, mock jurors who held this mistaken belief actually voted to convict the defendant at a rate 2.5 times higher than those who correctly understood the burden of proof.
Our original study, our successful replication, and our newly discovered cognitive explanation for juror behavior combine to provide powerful evidence that truth-related language diminishes the constitutionally-mandated burden of proof. Therefore, in order to protect our Due Process rights, courts should immediately remove such truth-related language from their burden of proof jury instructions
The criminal justice system has long held the view that judges are more capable than jurors of disregarding inadmissible prejudicial material. One consequence of this is the differential treatment of judges and jurors in respect of actual or potential exposure, via conventional or social media, to publicity which is prejudicial to a defendant. This article examines psycho-legal research findings which undermine the assumption upon which this differential treatment of judge and jury is based. It then identifies a number of questions which merit further attention in light of these findings.
The practice of judicial comment on the evidence has traditionally been the main form of jury control. Previous scholarly work has focused on the loss of the power in state courts, and has attributed the decline of judicial comment to a strict separation of functions between judge and jury and to regional differences in legal culture. This article examines two jurisdictions in which the power of comment long remained strong, at least in theory: the High Court of England, with its predecessors, and the federal courts in the United States. In both jurisdictions, judicial power to comment has been limited and in practice reduced, in the federal courts severely. The article reveals that this limitation developed with the advent of courts of appeal with separate personnel and especially of appeals in criminal cases.
Lack of appeal, or limited appeal, has been a distinctive trait of common law systems, particularly in criminal cases. There was no appeal as of right in criminal cases until 1907 in England, and 1889 in the federal courts. In the federal system, the early movements to allow appeals in criminal cases and to limit judicial comment on evidence focused on controlling a particular judge: Isaac Parker, U.S. District Judge for the Western District of Arkansas, who presided over more than 100 trials for capital crimes occurring in the Indian Territory from 1875 to 1896.
Almost thirty years ago, in Batson v. Kentucky, the United States Supreme Court held that prosecutors could not strike prospective jurors on account of the jurors’ race. In the most technical sense, striking a juror because of an arrest record could be considered “race neutral.” In practice, however, prosecutors use this reason to strike jurors to achieve the very end that Batson sought to prevent — a deliberately whiter jury. This Article explores whether, because of the racially disproportionate arrest rates of African Americans and Latinos compared to Whites, using a peremptory strike on a juror who is a person of color because of his arrest record or that of his loved ones, is contrary to the Supreme Court’s holding in Batson.
Despite Batson, discrimination by prosecutors in jury selection persists. Because this type of discrimination can easily be masked with an excuse that on its face is race neutral, examining whether an excuse like a juror’s arrest records is one that is truly race neutral is imperative. This Article will explore whether, because of the racially disproportionate arrest rates of African Americans and Latinos compared to Whites, using a peremptory strike on a juror who is a person of color because of his arrest record or that of his loved ones, is contrary to the Supreme Court’s holding in Batson. Part I examines how race affects the likelihood that a person will have an arrest record. Part II provides background regarding jury selection and Part III examines Batson and its progeny. Part IV discusses the constitutionality of strikes based on arrest records. This Article concludes with the common sense suggestion that questions about arrests during voir dire should be precluded, as should the practice of using a person’s arrest record as the sole basis for the exercise of peremptory strikes.
This Article proposes that patent litigation could be greatly improved by trying complex patent cases before specialized juries, composed of individuals who are skilled in the art that the asserted patent pertains to. After explaining why such specialized patent juries would be both beneficial and constitutional, this Article sets forth a concrete proposal for impaneling such specialized juries. Specifically, this Article proposes that the Federal government offer one-year jury commissions to technically-skilled individuals, for a competitive salary. The cost of their salaries would be offset by modest surcharges on patent litigants — yet specialized juries would streamline and simplify patent trials, thus bringing cost savings to litigants that would largely or entirely offset the cost of the surcharges. To test the feasibility of this Article’s proposal, 389 undergraduate and graduate students at sixteen U.S. colleges and universities were surveyed. Each survey respondent was pursuing a degree in one of the two broad areas that spawn much complex patent litigation: computer science/electrical engineering or the life sciences. Over 73% of respondents indicated that they would “seriously consider” a one-year post-graduation term of patent jury service under the terms of this Article’s proposal. These data suggest that it would be feasible for the Federal government to recruit a large cadre of specialized jurors to hear complex patent cases, in accordance with this Article’s proposal.
Many Americans insisted on their traditional rights as Englishmen in the conflict with Britain before and after declaring independence. Magna Carta — particularly the provisions concerning the “law of the land” and “judgment of his peers” — embodied fundamental rights of Englishmen that American revolutionaries were willing to fight to protect. As Edward Coke had found more than a century before, American revolutionaries understood that invoking such an ancient document inspired resistance to authority.
Americans cherished Magna Carta most because of its association with jury trial. Juries had proved useful to Americans in their conflict with Britain. Colonial American juries had nullified the law of seditious libel, customs taxes, and debts to British merchants. It was no wonder Americans held the jury in high esteem, at least until they had to run their own governments. Americans filled their constitutions, both federal and state, with rights to jury trial. Several American states even included translations of provisions from Magna Carta in their constitutions, enshrining the “judgment of his peers.” Once Americans had achieved independence and formed the new republics, judges faced the task of interpreting these thirteenth-century provisions as eighteenth- and nineteenth-century law. American judges quoted Blackstone and historical treatises. Through the nineteenth century, however, American enthusiasm for juries waned. The much-repeated phrases from Magna Carta became a flimsy screen, masking the steady decline of jury power.
The Supreme Court’s inquiry into the constitutionality of the death penalty has overlooked a critical “objective indicator” of society’s “evolving standards of decency”: the rate at which citizens are excluded from capital jury service under Witherspoon v. Illinois due to their conscientious objections to the death penalty. While the Supreme Court considers the prevalence of death verdicts as a gauge of the nation’s moral climate, it has ignored how the process of death qualification shapes those verdicts. This blind spot biases the Court’s estimation of community norms and distorts its Eighth Amendment analysis.
This paper presents the first quantitative study of Witherspoon strikes in real capital cases, measuring the strike rate in eleven Louisiana trials resulting in death verdicts from 2009 to 2013. Of the 1,445 potential jurors questioned, 325 individuals (22.5%) were excluded from service on the basis of their opposition to the death penalty. These exclusions had a considerable impact on the racial composition of the jury pool: In the trials for which individualized data on race was available, one-third of black venire members were struck under Witherspoon, and nearly 60% of those struck on this basis were black. These findings underscore the profound impact of death qualification upon the composition of capital juries and the outcomes of capital trials. Particularly in the wake of Justice Breyer’s recent call for reconsideration of the death penalty’s constitutionality, there is an urgent need for (a) systematized, ongoing data collection on Witherspoon strikes, and (b) formal consideration of the effect of death qualification in future Eighth Amendment analysis.
English Abstract: The introduction to the special issue describes the goals of the conference on Juries and Mixed Tribunals across the Globe, and identifies themes that emerged as jury scholars from all over the world examined different forms of lay participation in legal decision-making. The introduction focuses on common challenges that different systems of lay participation face, including the selection of impartial fact finders and the presentation of complex cases to lay citizens. The introduction and special issue articles also highlight new developments and innovative practices to address these challenges, including some tools, like decision trees, that remain highly controversial. The introduction closes by emphasizing the enduring political importance of citizen participation in law.
Spanish Abstract: La introducción a este número especial describe los objetivos de la conferencia sobre jurados y tribunales mixtos en el mundo, e identifica los temas que surgieron cuando académicos de todo el mundo especializados en jurados analizaron diferentes formas de participación de legos en la toma de decisiones jurídicas. La introducción se centra en los desafíos comunes a los que se enfrentan los diferentes sistemas de participación de legos, incluyendo la selección de jurados imparciales y la presentación de casos complejos a ciudadanos profanos en la materia. La introducción y el número especial también destacan nuevos desarrollos y prácticas innovadoras para afrontar estos retos, incluyendo algunas herramientas, como los árboles de decisiones, que todavía son muy controvertidas. La introducción finaliza, haciendo hincapié en la importancia política duradera de la participación ciudadana en el derecho.
Over time, the criminal, civil, and grand juries have declined in power. Cost, incompetence, inaccuracy, and inefficiency are often cited as the reasons for this fall. Recognizing that authority that formerly resided in the jury has shifted to the traditional constitutional actors of the executive, the legislature, the judiciary, and the states, this article explores a new theory for the decline of the jury. In the past, the Supreme Court has used the doctrines of the separation of powers and federalism to protect the power of the traditional actors including the branches, while it has not used any similar doctrine to preserve jury authority. At the same time, the power of the jury has eroded. This article argues that the jury is effectively a “branch” of government—similar to the executive, the legislature, and the judiciary—that has not been recognized and protected. In many instances the Court originally found authority in the jury to later take the same authority and give it to a traditional actor. A novel study helps explain why the status of the jury has changed. It shows that legal elites and corporations appear to have influenced this shift against jury authority.