Juries

The Dual Face of the American Jury: New Law Review Comment

Stacey P. Eilbaum, The Dual Face of the American Jury: The Antiauthoritarian and Antimajoritarian Hero and Villain in American Law and Legal Scholarship, 98 Cornell L. Rev. 711 (2013).

Introduction: Over the past fifty years, the Supreme Court has extended and elucidated the right to trial by jury. A handful of commentators have argued that modern Supreme Court decisions signal a shift in the Court’s jurisprudence on the jury toward a more functionalist approach that is sensitive to the competencies of juries and their historic role as protectors of liberty in American democracy. Consequently, some commentators have argued that circuit courts should follow the Supreme Court’s lead by leaving behind the formalist distinction between the judge’s law-finding and jury’s fact-finding authority that courts have made since the late nineteenth century. This shift, some commentators argue, would give the jury more authority to decide questions of law and may even pave the way for the jury’s right to nullify the law as instructed by the judge.

Prosecutors and the Socially Networked Jury: New Law Review Article

Andrew E. Taslitz, Information Overload, Multi-tasking and the Socially Networked Jury: Why Prosecutors Should Approach the Media Gingerly, 37 J. Legal Prof 89 (2012)

Abstract: 
The rise of computer technology, the Internet, rapid news dissemination, multi-tasking, and social networking have wrought changes in human psychology that alter how we process news media. More specifically, news coverage of high-profile trials necessarily focuses on emotionally-overwrought, attention-grabbing information disseminated to a public having little ability to process that information critically. The public’s capacity for empathy is likewise reduced, making it harder for trial processes to overcome the unfair prejudice created by the high-profile trial. Market forces magnify these changes. Free speech concerns limit the ability of the law to alter media coverage directly, and the tools available to trial judges to minimize harm to trial fairness are toothless. The usual solution has been lawyers’ ethics rules designed to channel their communications with the press, particularly rules focusing on prosecutors.

This piece addresses these concerns, using a recent proposed revision to the American Bar Association Criminal Justice Standards for the Prosecution Function as a jumping off point for the discussion. Those Standards, like most state ethics rules, prohibit prosecutors from making “public statements that the prosecutor reasonably should know will have a substantial likelihood of materially prejudicing a criminal
proceeding.” Drawing on cognitive science, behavioral economics, rumor-transmission studies, and jury research, this article argues that a
substantial likelihood of mate-rial prejudice to criminal proceedings from prosecutor statements to the press will always be present in high profile cases. Accordingly, the rules generally governing prosecutor dealings with the press, including the latest version of those rules embodied in the proposed Standards, are unrealistic. Better rules are theoretically possible. Nevertheless, this article concludes,such rules are probably not politically realistic. Accordingly, this piece recommends modest changes to the proposed standards’ commentary to alert prosecutors to the true nature of the risks arising from their contact with the media and recommending prosecutor training and internal and external accountability mechanisms to improve prosecutor performance in this area.

Korean Jury System: New Law Review Article

Sangjoon Kim et al., Judge-Jury Agreement in Criminal Cases: the First Three Years on the Korean Jury System, 10 J. Empirical Legal Studies 35 (2013)

Abstract: This study examined jury trials conducted during the first three years since the introduction of a new  jury system in South Korea. Case information from all jury trials held during the time was collected and empirically analyzed with a focus on judge‐jury agreement. The statistical analyses were guided by previous studies (Eisenberg et al. ; Spencer ). Results indicated that judges and juries agreed on the verdict 91.4 percent of the time (70.3 percent for conviction and 21.1 percent for acquittal). When they disagreed, juries had a greater tendency to acquit than did judges (7.4 percent and 1.2 percent, respectively). Neither evidentiary strength nor complexity had any systematic impact on agreement rates. Judges were more likely than juries to convict across all levels of evidentiary strength. The accuracy and error rates of jury verdicts were assessed by estimates of conditional probability.

 

 

Circumstantial Evidence and Jury Instructions: New Law Review Note

Eugenee M. Heeter. Note. Chance of Rain: Rethinking Circumstantial Evidence Jury Instructions, 64 Hastings L. J. 527 (2013)

ABSTRACT:

The treatment of circumstantial evidence has undergone a dramatic change over time, from a high level of scrutiny to widespread acceptance. Similarly, our understanding of direct evidence has evolved, as wrongful convictions have exposed the potential unreliability of eyewitnesses and confessions. In accordance with the changing views of each type of evidence, this Note identifies two distinct policy goals of circumstantial and direct evidence jury instructions. The first is to establish an equality of import between the two types of evidence, to combat juror bias that leads to the under or overvaluing of one type over the other. The second, which seems to be in conflict with the first, is to promote a higher level of care during jury deliberations, so that jurors do not casually make incorrect or unfounded factual inferences. However, these goals can be reconciled if we acknowledge that all kinds of evidence are highly probative, and subject to similar dangers from inference. By evaluating three different states’ circumstantial and direct evidence jury instructions for comprehensibility and effective advocacy of policy goals, this Note identifies what is done well and what diminishes the efficacy of the instruction, and then offers various solutions in the form of altered instructions. Ultimately, this Note concludes that the most effective solution is to create a new instruction that combats the dangers of inference, appeals to jurors’ appreciation of a reasonable alternative narrative, and eliminates the unnecessary distinction between direct and
circumstantial evidence.

Right to Civil Jury Trial for Creditors: New Law Review Comment

Grant M. Borgen, Note, The Civil Right to a Jury Trial and What it Means for Minnesota Creditors in Light of United Prairie Bank Mountain Lake v. Haugen Nutrition and Equipment LLC, 813 N.W. 2d 49, 2012, 39 Wm. Mitchell L. Rev. 245 (2012).

Overview: This article begins by analyzing the history of the civil right to a jury trial.  It then turns to an examination of United Prairie Bank in relation to its historical backdrop.  It critiques the Minnesota Supreme Court's analysis and concludes with a discussion about the lessons to be learned as a result of United Prairie Bank. The lesson is that until there is evidence indicating how juries award fees, Minnesota creditors are advised to include provisions in loan agreements stating that contractual attorney fee disputes shall be decided by the court and not by a jury.

 

 

Jury's Role in Res Judicata Disputes: New Law Review Comment

Steven Madrid. Note. Annexation of the Jury's Role in Res Judicata Disputes: The Silent Migration from Question of Fact to Question of Law, 98 Cornell L. Rev. 463 (2013).

Abstract: Steven Madrid begins his paper by discussing the doctrine of res judicata and its place in our legal system. Madrid notes that although the questions pertaining to the application of res judicata inquiry seem inherently factual, such as whether the party had a  full and fair opportunity to litigate the issue in the first action, federal and state courts treat these inquiries as questions of law for the judge. However,
after an examination of nineteenth-century case law, Madrid shows that it was typically the jury’s role to determine whether or not res judicata applied to a given case as a question of fact. Moreover, Madrid argues that there was no  legal justification for the silent migration of res judicata from a question of fact to a question of law in the twentieth century. Even considering the judicial screening doctrine and modern Seventh Amendment jurisprudence, Madrid contends that there is no justification for treating res judicata as a question of law. Madrid concludes that litigants have a right to have a jury hear their res judicata claim and that the denial of this right is unconstitutional.

 

 

Jury Trial and the Jones Act: New Law Review Article

Shane O. Balloun, The Defendant's Right to Jury Trial in Jones Act Claims: Washington State's Endicott Opinion Invites Much Needed Supreme Court Review, 9 Seton Hall Cir. Rev. 1-34 (2012)

Introduction:

The Jones Act seaman has de facto power over whether a jury will hear his claim through his ability, under Panama Railroad v. Johnson, to elect that his claim proceed at law or in admiralty. A significant conflict of laws exists between the federal circuits and several state courts regarding whether this election power means the seaman may divest the defendant of the right to a jury trial by later amending his complaint from law to admiralty. The Fifth Circuit has held that a plaintiff whose at-law Jones Act claim rests on non-diversity jurisdiction may amend his complaint to elect admiralty jurisdiction, even if the defendant previously demanded a jury trial. Several federal circuits that have opined on the issue, including the Seventh and Ninth Circuits, have adopted similar views.

 

Right to Jury Trial and the WARN Act: New Law Review Comment

Noah Yavitz, The Right to Trial by Jury and the WARN Act, 79 U. Chi. L. Rev. 1629 (2012)

Introduction: Outsourcing. Downsizing. Eliminating redundancy. The mass layoff is a phenomenon susceptible to endless labeling and relabeling, be it by epithet or euphemism, but under any name it represents a massive trauma for workers. Legislators are by no means insensitive to the economic - and political - dimensions of this trauma. In 1988, back when the bogeyman was not China but Japan, Congress tackled the issue with the Worker Adjustment and Retraining Notification Act (WARN Act), which requires firms above a certain size to provide notice before either a plant closing or a mass layoff.  To encourage compliance, the Act allows for civil actions against employers who fail to give notice, with liability of up to sixty days' backpay and lost benefits.

Unfortunately, when Congress passed the WARN Act, it neglected to specify the appropriate finder of fact for these lawsuits. In the absence of any express direction, the federal courts have been forced to grapple with whether a plaintiff bringing a civil action under the WARN Act has a Seventh Amendment right to demand a trial by jury.  A convincing answer has yet to rise from the scrum - at present litigants are faced with a division of authority. This Comment seeks to resolve that division by using existing interpretations of the Act's remedies to inform the Seventh Amendment analysis.

Race and Capital Jurors: New Law Review Article

Pamela A. Wilkins, Confronting the Invisible Witness: The Use of Narrative to Neutralize Capital Juror's Implicit Racial Biases,  115 W. Va. L. Rev. 305 (2012).

 INTRODUCTION: The past ten to fifteen years have seen an explosion in legal scholarship concerning potential applications of cognitive science   --particularly of psychological research concerning stereotyping and implicit biases--to legal  doctrines, structures, and theories.   The questions raised by the scholarship are fascinating: Should the legal system reconceive its employment discrimination doctrines?   Should jury selection be rethought?   Is national school reform legislation doomed to fail due to its failure to account for parents' implicit biases?   Underlying all of these questions is a sometimes tacit and sometimes open challenge to the primacy of rational choice theory,  which has long driven much judicial decision-making. 

Recent years have also seen renewed scholarly interest in the use of both narrative and metaphor in law.  All lawyers--litigators most obviously--are  storytellers, but the legal academy all too often has treated narrative and metaphor as the "darker brother[s] . . . [sent] to eat in the kitchen/When company comes."   The light-skinned brother, considered smarter, more effective, more respectable, is, of course, logical, syllogistic reasoning.  Recently, however, legal scholarship has invited narrative and metaphor to the table, and this invitation has yielded stimulating discourse on a variety of topics, such as the role of narrative in legal education,  the implications of using certain metaphors in custody disputes, and the use of myth in constitutional litigation.

 

 

Jurors and the Media: New Law Review Article

Charles Nesson, What You Have Said in the Dark: The Evolution of Media in the Courtroom and the New Challenges of Containing the Jury's Information Space, 24 St. Thomas L. Rev. 383 (2012)

Excerpt:
The trial system is in a form of crisis.  Recently, the United States Supreme Court effectively recognized that we no longer have a jury system.  Instead, we have a plea bargaining system with the remote possibility of a jury trial at the very tail end of that system.  Given the  pervasiveness of sensational news stories, the option of settlement may appear more attractive to a litigant because it avoids the public display that often accompanies high-profile trials.  This also serves a benefit to nervous judges who, without the stress of a trial, may avoid the onslaught of media pressure for court documents, comments regarding the case, or permission to observe certain proceedings.  Finally, settling outside of trial also places bargaining chips in the hands of defendants who might face weak odds for trial.

Litigants' desire to avoid trial is likely bolstered by the prevalence of media that now spreads mass amounts of information and misinformation to consumers and jurors at an alarming rate through use of smart phones, laptops, and tablets. Provocative images and half-truths of high-profile trials reach out of television screens and into the bedrooms of incensed  viewers. Bias in the media's focus of civil trial coverage, which arguably favors plaintiffs' civil judgments as opposed to defense's victories, may also scare litigants from the prospect of going to trial.  As a consequence of increased media coverage, the idea of a contained and secure jury information space is increasingly threatened.