Descriptive and normative discussions of whether the jury trial is or should be a political institution are complicated by the systematic ambiguity of the most important terms in this discussion. One influential perspective understands a political actor as "he would decide on the exception." This seems to fit the jury insofar as it may nullify the written law in its decisions. It turns out, however, that the jury's actual practices demonstrate that the usual notion of sovereignty is far too narrow.
This Article replies briefly to the robust response that Professor Frank O. Bowman III submitted in answer to my earlier contribution to the Missouri Law Review’s symposium issue concerning events in Ferguson, Missouri. Without denying the technical accuracy of a point Professor Bowman raises concerning grand jury procedures (distinguishing between a “true bill” and a valid indictment), I dispute whether the distinction can support all of the weight placed upon it. I also dispute an empirical claim made by Professor Bowman concerning whether grand jury deliberations in sensational cases boost public confidence in the justice system and whether dispensing with the ritual — only in cases where the prosecutor believes at the close of evidence that no indictment should be brought — would create risks to public safety. Finally, I take a moment to clarify what I did — and what I did not — argue in my earlier Article.
Public fear has driven legislation designed to identify and exclude sexual offenders from society, culminating in sexually violent predator (SVP) statutes, in which a sex offender who has served his prison sentence is hospitalized indefinitely if a jury determines he is likely to reoffend as a result of a mental disorder. Jurors rarely vote not to commit a previously-convicted sex offender as an SVP. This study tests whether the mere label of “sexually violent predator” affects these legal decisions. Venire jurors (n=161) were asked to decide whether an individual who had been incarcerated for 16 years should be released on parole. The individual was either labeled as a.) a sexually violent predator or b.) a convicted felon, and all other information was identical between the conditions. Jurors were over twice as likely to deny parole to the SVP compared to the felon, even though they did not consider him any more dangerous or any more likely to reoffend. Demographic variables did not moderate this finding. However, jurors’ desire to ‘get revenge’ and to ‘make the offender pay’, as measured by Gerber and Jackson’s (2013) Just Deserts Scale, did significantly relate to decisions to deny parole. These findings suggest that jurors’ decisions in SVP hearings are driven by legally impermissible considerations, and that the mere label of “sexually violent predator” induces bias into the decision making process.
The Constitution protects us from criminal conviction unless the government can prove guilt beyond a reasonable doubt. However, after defining reasonable doubt, many trial courts will then instruct jurors that “you are not to search for doubt. You are to search for the truth.”
Defendants have repeatedly challenged such truth-related language, arguing that it lowers the government’s burden of proof to a mere preponderance of the evidence. That is, if the government’s version of events is only slightly more credible than the defendant’s, it follows that, in a search for the truth, jurors would be obligated to convict.
Appellate courts concede that instructing jurors to search for the truth is not proper and may lower the government’s burden. However, these same courts refuse to reverse defendants’ convictions because, the courts claim, in the context of the instruction as a whole, jurors are probably not influenced by the truth-related language.
In this Article we empirically test this judicial claim. We recruited 300 participants to serve as mock jurors. Every juror read the same case summary of a hypothetical criminal trial. Jurors were then randomly assigned to one of three groups, with each group receiving a different jury instruction on the government’s burden of proof.
One of the groups was instructed on reasonable doubt, but then told “you are not to search for doubt. You are to search for the truth.” This group’s conviction rate was nearly double that of the group that received a standard reasonable doubt instruction, and was statistically identical to the group that received no reasonable doubt instruction at all.
This finding contradicts the courts’ conclusion that truth-related language has no impact on juror decision-making, and is strong evidence that such language not only lowers, but actually eviscerates, the government’s burden of proof in criminal cases.
One question that attorneys in racially charged cases face is whether to attempt to conduct voir dire into racial bias. Voir dire is the process of questioning prospective jurors to ensure that those chosen to sit on the jury will be impartial and unbiased. Whether it is a good idea from a trial strategy perspective to voir dire prospective jurors when an attorney believes racial bias may have played a role in the events underlying the case is a question over which reasonable minds can disagree. Perhaps the most common view is that reflected by Albert Alschuler who suggested twenty-five years ago that any voir dire into racial bias would be "minimally useful."
In this article, I challenge Alschuler's belief that voir dire into racial bias is of minimal benefit. I argue that calling attention to the possibility of racial bias in either the actions of the individuals involved in the case or the jurors themselves can raise the salience of race and encourage jurors to view the evidence in a less biased way than if they were not paying attention to the possibility of racial bias. While I agree with Alschuler that a simple, close-ended question like "Are you going to be biased against the defendant because of his race?" is unlikely to be helpful, I believe a series of open-ended questions, asking jurors to reflect upon how racial bias, both explicit and implicit, might affect their ability to impartially consider the evidence, can be beneficial.
My article proceeds in three parts. In Part I, I review the Supreme Court's jurisprudence on voir dire into racial bias. In Part II, I examine recent social science research that may help answer the question whether calling attention to race during voir dire helps or hurts. On the one hand is a wealth of empirical research conducted over the last decade that strongly suggests calling attention to race motivates jurors to treat Black and White defendants equally. These studies indicate that when race is not highlighted, jurors tend to be more punitive and less empathetic toward Black defendants than White defendants. On the other hand are a few recent studies suggesting that when individuals are made aware of extreme racial differences in the prison population, i.e. when they are given information that suggests there are many more Blacks and Latinos than Whites in prison, Whites are more likely to support punitive criminal justice policies. I conclude in Part III that as a matter of trial strategy, it is best for an attorney concerned about racial bias to confront the issue of race head on. I argue that it is best to do so early and often, rather than waiting until just before the jurydeliberates, as it may be too late by then to change jurors' minds.
U.S. Federal District Court Judge William Alsup has rejected a jointly submitted jury questionnaire in the copyright infringement case of Oracle v. Google. It appears that the parties wanted the questionnaire to facilitate online investigations of jurors. According to Judge Alsup,
“Assuming arguendo that such Internet searches are permissible, the court has no duty to facilitate it by dragging out the voir dire procedure...In short, no questionnaire will be used. We will use the court’s usual voir dire procedure [and] we will use traditional safeguards to root out any bias.”
Judge Alsup has also indicated that he is considering an outright ban against any online investigations of jurors. If this were to occur, it would be contrary to what most judges do. I think the judge would be making a mistake here if he prohibited online research of prospective jurors.
The conjunction paradox arises when there are multiple elements to be proven and the likelihood of each element is at least partially independent of the likelihood of the others. A fact-finder might believe that each of several elements is more likely to be true than false, but also believe that each of these elements is only somewhat more likely than its negation. In that situation, probability theory may dictate that the conjunction of the elements is less probable than their disjunction, suggesting that there should be a finding of no liability. Nonetheless, the typical jury instructions given by American judges reject this result, and many scholars of proof have sought to construct normative theories that justify that rejection.
Unfortunately, the problem of conjunctive likelihood cannot be dissolved through re-description of the task that fact-finders engage in; it is, instead, inherent in any system of multi-element proof. The problem does not go away just because a theorist chooses to model proof comparatively and without quantifying likelihoods, as jurors must still decide whether conjunctive explanations are equally, more or less convincing than disjunctive explanations, all other things being equal. Furthermore, those who have responded to the paradox by articulating alternative mathematical rules for handling conjunctive proof have failed to make a convincing case for the desirability of such approaches. Given present knowledge regarding the psychological dynamics of fact-finding and the risks of error at trial, the best resolution of the paradox is to reject the common law’s position and instruct juries that they should deny liability in all situations where the plaintiff has failed to demonstrate that the conjunction of all predicate elements is more likely than their disjunctive negation.
The criminal justice system is built around the jury trial, but almost all defendants plead guilty. This essay suggests that defense lawyers should employ the mechanism that killed jury trials – bargaining – to revitalize the jury trial. Specifically, lawyers ought to negotiate limited trial waivers in exchange for limited leniency. Trial bargaining offers a tool that will mitigate the harms of plea bargaining and generate more, and sometimes better, options for clients. Why would a prosecutor want to bargain for a trial? What trial rights may defense counsel agree to waive? The essay offers three examples of trial bargains as well as a sample agreement the parties can present to the court.
This article focuses on the relationship between two troubling features of the American criminal justice system over the last forty years: the steep rise in our incarceration rate and the sharp decline in the number of criminal trials. The article contends that the lack of a strong trial system for routine cases pushes the incarceration rate higher.
To provide perspective on our problems, the article looks at the criminal trial systems in Canada and England and shows how the availability of a nonjury trial model for misdemeanors and most felonies encourages prosecutors to keep charges low by offering advantages to both prosecutors and defendants if they opt for the nonjury trial model. There is thus not the need for the extreme pressures one sees exerted on defendants in the United States to force them to plead guilty.
This article argues that it was a mistake for the Supreme Court to insist that trials for misdemeanors and most felonies must be jury trials. The result is a worse world for defendants as plea bargaining has come to dominate so completely that trials no longer serve their function as a check on the quality and quantity of cases being filed.
The article concludes that we will struggle to lower our incarceration rate significantly until we face up to the problems inherent in identifying fair trials with jurytrials. It is a mistake other common law countries have not made and they are better for it.
Children are often the primary source of evidence in maltreatment cases, particularly cases of child sexual abuse, and may be asked to testify in court. Although best-practice protocols for interviewing children suggest that interviewers ask open-ended questions to elicit detailed responses from children, during in-court testimony, attorneys tend to rely on closed-ended questions that elicit simple (often “yes” or “no”) responses (e.g., Andrews, Lamb, & Lyon, 2015; Klemfuss, Quas, & Lyon, 2014). How then are jurors making decisions about children’s credibility and ultimately the case outcome? The present study examined the effect of two attorney-specific factors (e.g., temporal structure and questioning phase) on mock jurors’ perceptions of attorney performance, child witness credibility, storyline clarity, and defendant guilt. Participants were randomly assigned to read a trial excerpt from one of eight conditions and were then asked to evaluate the attorney, child witness, and the case. Selected excerpts were from criminal court case transcripts and contained either high attorney temporal structure (e.g., use of temporal markers) or low temporal structure (e.g., frequent topic switching), involved direct or cross examination, and represented cases resulting in a conviction or acquittal. Child responses were kept consistent across all excerpts. Results showed that participants perceived the attorney’s performance and child’s credibility more favorably and thought the storyline was clearer when attorneys provided high rather than low temporal structure and when the excerpt contained direct rather than cross examination. Participants who read a direct rather than cross examination excerpt were also more likely to think the defendant was guilty. The study highlights the impact of attorney questioning style on mock jurors’ perceptions.