In E (CA799/2012) v R  NZCA 678 the Court of Appeal directly confronted the issue of whether demeanour warnings should be required in all criminal jury trials. Such a warning would alert a juryto the risks of using demeanour to assess credibility. While science has shown that demeanour is an unreliable tool for assessing credibility, the Court decided that a demeanour warning was not always required. As such, the law appears to be out of step with contemporary science. This article contrasts the traditional approach to the usefulness of demeanour evidence in criminal jury trials with a more modern understanding of its actual usefulness. Drawing on both social science and case authorities, this paper will critically evaluate the Court’s approach to this issue. The conclusion is reached that a demeanour warning actually should be mandatory in all criminal jury trials.
Presumed Fair? Voir Dire on the Fundamentals of Our Criminal Justice System
The American criminal justice system is built on three bedrock principles: the presumption of innocence, the burden of proof, and the standard of proof beyond a reasonable doubt. These ideals, however, are frequently ignored by jurors. Social science research has shown that jurors routinely believe that a defendant must prove his innocence, and that the mere fact that the defendant is standing trial is proof of guilt. Jurors persist in these beliefs despite proper instructions on the law.
Despite the acknowledged centrality of these legal ideals, trial courts in many jurisdictions, routinely prevent defense attorneys from questioning prospective jurors on these fundamental legal issues based on a mistaken view that jurors will follow the given instructions. Unlike instructions, voir dire regarding prospective jurors’ ability or willingness to apply the presumption of innocence and hold the government to its burden of proof beyond a reasonable doubt is not granted uniformly across jurisdictions. While the Supreme Court has sanctioned voir dire in capital cases on whether jurors can impose the death penalty, it has thus far remained silent on whether there is a right under the Due Process Clause to question prospective jurors on the presumption of innocence and the government’s burden of proof of beyond a reasonable doubt. The states and federal circuits are split on the question.
This Article explores whether, in order to ensure fundamental principles of fairness, voir dire questions about the presumption of innocence and the burden of proof should be required in all criminal jury trials.
Section 745 of the Criminal Code is currently the only area of Canadian sentencing law that contemplates a role for juries. It grants juries the ability to recommend periods of parole ineligibility immediately following a guilty verdict in second-degree murder cases. This power is a remnant of a 1961 amendment to the Criminal Code that empowered juries to recommend clemency in capital murder cases. Although capital punishment has long since been repealed, jury involvement in sentencing persists — at least on paper. This article demonstrates that despite the codification of juryrecommendations, Canadian courts have shown remarkable reluctance to give them meaningful weight in sentencing. A survey of the jurisprudence reveals that courts have several concerns related to jury recommendations, including the jury’s limited understanding of the legal principles of sentencing and the undue burden that the additional responsibility places on the already exhausted jurors. Although some courts pay lip service to juryrecommendations, it is evident from the jurisprudence that the courts consider the power to be irrelevant. After weighing the potential benefits of retaining jury recommendations, this article argues that they have been judicially repealed for sound reasons of principle and policy, and accordingly should be formally removed from the Criminal Code.
This article analyzes the current state of jury questioning, including the extent to which it is required or discretionary; how it has -- or has not -- been used, and of significant importance, why or why not; the degree of correlation between concerns, advantages and disadvantages as predicted on the one hand, and as actually found in statistical research on the other; the body of appellate case law relevant to the particulars of jury questioning and the issues they have raised; and, a new survey on how it is both used and working in criminal and civil cases. Following this introduction, Part I discusses the extent to which jury questioning is now authorized. Part II focuses on major surveys and pilot projects which evidence jury questioning's benefits and problems. Part III presents a 2013 survey, performed by the author, of judges, prosecutors and public defenders of the Ninth Judicial Circuit in Florida with the goal of discovering how those with the best vantage point believe jury questioning is (or is not) working, and why. Part IV discusses the case law of jury questioning, focusing on problems stemming from its use at trial in varying jurisdictions. After the article’s conclusion, Appendix I provides a compendium of how the separate states, as well as the United States Supreme Court and the Circuit Courts, treat jury questioning. Appendices II, III, and IV detail the results of the Ninth Judicial Circuit survey.
This is the third of a trilogy of articles based on a 204-question survey of jurors. The first focused on whether jurors in criminal cases were upholding the presumption of innocence and the right of a defendant not to testify. The second examined jurors' evaluations of their advocates' performance. This article focuses on the relationship between pertinent variables in the survey and the verdicts returned. After the Introduction in Part I, Part II provides the methodology and organization of the survey, including how the statistical analyses were performed. The results of these analyses are reported beginning in Part III with how jurors' demographics bear on their verdicts, and Part IV analyzes the attorneys’ demographics.
Part V examines the effects of the jurors' trial attorneys' understanding (or misunderstanding) of the strengths and weaknesses of their cases; their honesty or lack thereof; their asking questions that were important in deciding the case; their strength of personality; and their being perceived by the jurors to be either public defenders or private counsel. Part VI examines the effect of how jurors rated the likeability and ability of their trial attorneys. In Part VII, the article looks at how the trial lawyers' use of exhibits may have played a role in the verdicts they received. In Part VIII, the analyses turn to demographics of the parties. Part IX examines credibility of the parties-specifically whether the jurors liked them or felt sympathy for them, and, in civil cases, whether blaming someone else for what had transpired produced an effect on the verdicts.
Part X is exclusively devoted to criminal cases, particularly the effect of the credibility of a defendant who testified, whether jurors presumed the defendant innocent, and whether it would have been better if he or she had not testified. Part XI examines the length of deliberations. Part XII is also devoted to criminal cases, and includes a logistic regression to determine predictors of guilt or innocence using multiple variables. The article concludes with Part XIII, and is followed by a statistical appendix.
This essay, originally written for a Swiss volume, and revised with added material for publication in the Chicago Kent Law Review, is intended to provide in brief compass a review of much that is known about the American jury system, including the jury's historical origins, its political role, controversies over its role and structure, its performance, both absolutely and in comparison to judges and mixed tribunals, and proposals for improving the jury system. The essay is informed throughout by 50 years of research on the jury system, beginning with the 1965 publication of Kalven and Zeisel's seminal book, The American Jury. The political importance of the jury is seen to lie more in the jury's status as a one shot decision maker largely independent of trial court bureaucracies than in its ability to nullify the law. Despite flaws in the jury process and room for improvement, the message that emerges from the literature is that juries take their job seriously and for the most part perform well. There is little reason to believe that replacing jury trials with bench trials or mixed tribunals would improve the quality of American justice, and some reason to think it might harm it.
The institution of the jury underwent radical change in the United States during the nineteenth century. At the beginning of the century, the jury trial was a form of popular amusement, rivaling the theater and often likened to it.The jury’s ability to find law, as well as facts, was widely if inconsistently defended. The trial’s role as a source of entertainment, and the jury’s ability to nullify, were consistent with a view of forensic oratory that emphasized histrionics, declamation, and emotionally charged rhetoric as means of legal persuasion. By the end of the century, judges had gained more control of the law-finding power, and various questions of fact had been transformed into questions of law. Many of the details that would have aided the lawyers’ dramatic efforts were screened out by a host of new exclusionary rules. The overall effect was to afford less scope for lawyers' emotional excesses — and to make those performances seem disreputable and outmoded. As an institution, the trial continued to figure significantly in American culture through the first three decades of the twentieth century. Numerous factors conspired to weaken the trial’s prominence after that time. Although these changes in forensic style have not usually been considered as a part of that narrative, they may have helped to facilitate the decline of the trial, by reorienting its function away from a broadly representative one, and towards one that emphasized dispassionate analysis in the service of objectivity and technical exactitude, appealing to a rather different community, made up of professional lawyers and those laypersons who could appreciate their values.
The jury’s history is interestingly schizophrenic, even paradoxical. On one side is the history of the jury as palladium of liberty, often along with other such palladia, notably habeas corpus. On the other is the history of the jury as instrument of oppression. On one side is the jury as English, local, indigenous, democratic; on the other is the jury as French, central, foreign, autocratic. This paper reflects on this paradox, regarding it as neither sui generis nor in need of resolution. Instead, it critically analyzes the jury’s schizophrenic history from the perspective of New Historical Jurisprudence, as an illustration of the fundamental tension between two modes of governance, law and police, which ultimately are rooted in the distinction between autonomy and heteronomy that has shaped the conception and practice of government since classical Athens.
Despite the hurdles required to overcome selection effects in analyzing trial results, scholars have studied the effect of judicial ideology and juror race on verdicts. But these variables have never been interacted. Using a two-part selection model and a new dataset of federal civil jury verdicts, this article finds selection effects driven by contingent-fee plaintiff’s attorneys, no effect on verdicts for judicial ideology, and a curvilinear effect of the size of the black population on verdicts.
Civil jury trials are disappearing. In all courts, both state and federal, there is a decline in both the percentage of cases that go to trial and the absolute number of trials — all while the number of claims is greater than ever before. The civil jury trial is losing its place in America’s justice system, with unfortunate consequences: “The decline in jury trials has meant fewer cases that have the benefit of citizen input, fewer case precedents, fewer jurors who understand the system, fewer judges and lawyers who can try jury cases — and overall, a smudge on the Constitutional promise of access to civil . . . jury trials.” However, despite the many factors contributing to the decline, there may be a way to invigorate the civil jury trial and restore its vital place in America’s justice system. This Comment proposes the adoption of short, summary, and expedited (SSE) civil jury trial programs in response to the decline of the civil jury trial. These trial programs are a faster and cheaper alternative to the traditional jury trial that still retains many of a traditional trial’s key attributes and benefits. An SSE trial program encourages the use of a jury, shortens the time between initiating the lawsuit and a trial, reduces the overall cost of litigation to all parties, and allows attorneys and judges to gain needed experience — without burdening the already existing civil justice system or violating the constitutional promise of jury trials. Unfortunately, few jurisdictions have implemented these programs, and fewer still have done so in a way that supports the traditional jury trial instead of adding yet another way of avoiding it. Scholarship to date on the topic has yet to provide a complete model of an SSE trial program that has the possibility of reviving the jury trial. This Comment remedies this by proposing a model SSE trial program that incorporates the attributes necessary to help revive the civil jury trial.