The presumption of innocence explicitly forbids jurors from using official suspicion or indictment as evidence of guilt in a criminal trial. A behavioral experiment tested whether jurors follow this prescription. It revealed that, compared to when an individual had been merely named, jurors thought the individual was significantly more likely to be guilty after a detective referred the case to the district attorney, and when the individual was formally charged and thus a criminal defendant. A judicial instruction to presume innocence reduced jurors’ beliefs about the defendant’s guilt. Regression analyses indicated that jurors’ priors predicted their posteriors, and further that their priors were predictive of verdicts even after accounting for their posteriors. The findings suggest that jurors make different assumptions about the guilt of a criminal defendant prior to the introduction of evidence, and that these assumptions influence their overall evaluation of the case as well as their verdict.
Consistent, accurate and understandable jury instructions are critical to the determination of damages in patent cases. In January 2016 the Federal Circuit Bar Association (“FCBA”) amended its popular model jury instructions. Among other things, the 2016 amendments substantially reframed the instructions regarding the calculation of reasonable royalty damages in patent cases, replacing the fifteen “Georgia-Pacific” factors with a streamlined set of three factors emphasizing the value contribution of the patented technology to the overall product and comparable license agreements. This Essay discusses the history and implications of the FCBA instruction change for reasonable royalty damages. It assesses the adherence of the reformulated damages analysis to the Federal Circuit’s rulings regarding damages calculations in Ericsson v. D-Link and other recent case law, and compares the FCBA instruction with corresponding instructions developed by the American Intellectual Property Law Association (“AIPLA”) and the Northern District of California. We also present new empirical data regarding the use and adoption of model jury instructions in cases in which reasonable royalty damages are adjudicated. We find that a wide variety of instructions are used, partially defeating the goals of consistency and efficiency that model instructions seek to achieve. We conclude by recommending that the Federal Circuit endorse a single set of model jury instructions for patent cases, and that it consider the new FCBA instructions for this purpose. We also urge the FCBA and other organizations developing model jury instructions to continue to emphasize the traditional incremental value approach to patent valuation, and to develop additional jury instructions addressing issues raised by standards-essential patents.
In Apprendi v. New Jersey the United States Supreme Court established that any finding that increases the maximum sentence to which a defendant may be sentenced is an element of the offense that must be found by a jury beyond a reasonable doubt. Applying that concept in Hurst v. Florida, the United States Supreme Court found that Florida’s death-sentencing scheme, which required a judge rather than the jury to make the ultimate factual findings for imposition of a death sentence, unconstitutional holding that “[t]he Sixth Amendment requires a jury, not a judge to find each fact necessary to impose a sentence of death.”
Hurst left no indication as to whether its holding applies retroactively to death-sentenced individuals seeking post-conviction relief. In federal-habeas review and in some states’ post-conviction review processes, this inquiry centers on applying the federal-retroactivity analysis announced in Teague v. Lane. In Schriro v. Summerlin, the Supreme Court, applying Teague, found that Ring v. Arizona, often considered Hurst’s predecessor case, was not retroactive on collateral review. Summerlin, however, does not settle the matter of Hurst’s retroactivity. First, Hurst’s holding included a proof-beyond-a-reasonable-doubt issue that was not present in Summerlin, and the Supreme Court has traditionally given retroactive application to pre-Teague proof-beyond-a-reasonable-doubt cases. Second, state courts, even those that look to Teague for their retroactivity analyses, are not bound by the federal Teague decisions and are therefore not bound by the jury-trial retroactivity portion of Summerlin. Third, the Court’s application of Teague to Miller v. Alabama in Montgomery v. Louisiana indicates that the United States Supreme Court’s reluctance to hold cases retroactive under Teague may be eroding or that the Court is considering retroactivity under a contextual approach.
This article argues that Hurst is retroactive under Teague to all death-sentenced inmates seeking post-conviction relief. In the first section, this article examines Hurst’s predecessor cases of Apprendi and Ring. In the second section, this article examines Florida’s death-sentencing scheme and the United States Supreme Court’s decision in Hurst. In the third section, this article applies the Teague analysis to Hurst. In sum, Hurst is retroactive on collateral review under a traditional Teague analysis. Recent Supreme Court precedent, however, indicates that the Court’s reluctance to hold new rules retroactive under Teague is eroding or the Court is recognizing “constitutional difference” in its analysis.
Shortly after John Wilkes Booth killed Abraham Lincoln, President Andrew Johnson directed that Booth’s alleged coconspirators be tried in a makeshift military tribunal, rather than in the Article III court that was open for business just a few blocks from Ford’s Theater. Johnson’s decision implicated a fundamental constitutional question that had been a source of heated debate throughout the Civil War: When, if ever, may the federal government circumvent Article III’s requirements of a criminal trial by jury, with an independent, tenure-protected judge presiding, by trying individuals other than members of the armed forces in a military tribunal?
This Article III question has been debated in several of the nation’s major wars, yet remains unresolved, particularly with respect to the trial of domestic-law offenses. Moreover, that question is especially significant in the United States’ current armed conflicts against nonstate terrorist organizations, such as al Qaeda, both because members of such enemy forces, who lack international law “combatant immunity,” often violate U.S. criminal laws, and because Congress has recently authorized military commissions to try such enemy forces for certain domestic-law, war-related offenses. In attempting to justify the constitutionality of such military trials, the government has, perhaps surprisingly, turned to the Lincoln assassination commission as a leading precedent, one that arguably helps to establish a longstanding political branch practice that should inform constitutional understandings. Such reliance on the Lincoln trial as legal authority is understandable, because that proceeding was, in Judge Kavanaugh’s words, “the highest-profile and most important U.S. military commission precedent in American history,” and thus it would be striking — indeed, a significant constitutional embarrassment — to conclude that the trial and convictions of the Lincoln conspirators were unlawful.
As I demonstrate in this article, however, such respect for the Lincoln assassination trial as a canonical constitutional precedent would itself be historically anomalous. For almost 150 years it was virtually unthinkable for anyone to rely upon that proceeding as venerated legal authority: as one knowledgeable observer wrote, the Lincoln trial was a case of military jurisdiction that “no self-respecting military lawyer [would] look straight in the eye.”
This article offers the first comprehensive account of the ways in which the Article III question was contested during and immediately after the Civil War, with particular attention to the Lincoln assassination trial. The article also carefully examines the place of the Lincoln trial in the national constitutional discourse after 1868 — the ways in which that proceeding, and other Civil War military trials, have been accorded authority, or dismissed as nonauthoritative, by later generations. This broader historical narrative thus can help inform current academic and judicial debates about whether and under what circumstances political branch practice, especially high-profile precedents, ought to inform, or “liquidate,” the meaning or proper application of the Constitution.
For the past 25 years, Victoria has engaged in a process of almost constant creation and revision of a set of jury directions to be used in sexual offence trials. These directions, given by the judge at the conclusion of the trial, are specifically aimed at disrupting existing patriarchal social narratives that have a strong tendency to render women’s claims of rape null. Research findings suggest that the directions have not been effective and that social narratives about the existence of “real rapes” (and thus, not-real rapes) continue to resonate strongly in the trial. This article analyses the use of the jury directions in two Melbourne County Court rape trials held in 2010-11. Although the trials are factually similar, in one trial the judge appears to have taken a different approach to the use of the jury directions, and this article hypothesises that this approach might be causally related to the conviction in that case (where in the other trial a conventional approach was matched by an unsurprising acquittal). This article proposes that jury directions given at the conclusion of the trial come too late in the piece to disrupt problematic narratives, and that it is possible that utilising the intent behind the jury directions in early decision-making, at the pre-trial hearings and evidentiary rulings stages, may lead to more just outcomes.
Parties are increasingly using high-low agreements to limit the risks of litigation. High-low agreements are contracts in which defendants agree to pay plaintiffs a minimum recovery in return for plaintiffs’ agreement not to execute on a jury award above a maximum amount. Currently no jurisdiction requires high-low agreements to be disclosed to the jury. This Note argues that disclosure should be required. It contends that non-disclosed high-low agreements are a type of procedu- ral contract modifying the jury’s core adjudicative function. Drawing on theories of procedural justice, it suggests that by usurping the jury’s role these agreements un- dermine the legitimacy of the judicial system. It contends that requiring disclosure would remedy these negative effects and that any unintended consequences attend- ant to disclosure could be mitigated by the court or by the parties.
In the 2015 Term, the United States Supreme Court decided that the prosecutors in Foster v. Chatman exercised race-based peremptory challenges in violation of Batson v. Kentucky. The Court reached the right result, but missed an important opportunity. The Court should have acknowledged that after thirty years of the Batson experiment, it is clear that Batson is unable to stop discriminatory peremptory challenges. Batson is easy to evade, so discriminatory peremptory challenges persist and the harms from them are significant. The Court could try to strengthen Batson in an effort to make it more effective, but in the end the only way to eliminate discriminatory peremptory challenges is to eliminate the peremptory challenge.
In this capital case from Georgia, petitioner Timothy Tyrone Foster, an African-American man, claimed that the prosecutors violated Batson by exercising race-based peremptories and striking four African-American prospective jurors. Foster was tried, convicted, and sentenced to death by an all-white jury. What made this case so unusual was that Foster, through the Georgia Open Records Act, was able to obtain the prosecutors’ notes. In the notes, the prosecution had highlighted the names of African-American prospective jurors on the venire list, circled their race on their questionnaires and noted it on their juror cards, and put them on a “definite NO’s” list. As the notes make clear, the prosecutors focused on the African-American prospective jurors’ race, even though they gave seemingly race-neutral reasons to explain why they removed them.
The Court in Foster undertook a close reading of the prosecutors’ reasons and found race to be the basis for the prosecutors’ peremptory challenges. This Article identifies the strengths and weaknesses of the Court’s opinion in Foster. However, Foster’s case was unusual because the prosecutors’ notes were in effect a “smoking gun.” Without such notes, the prosecutors’ seemingly race-neutral explanations would have sufficed under Batson. The Court needs to recognize the ineffectiveness of Batson. It could tweak the Batson test in different ways, such as by giving more weight to discriminatory effects or practices or by devising a stronger remedy. In the end, however, the only remedy that is adequate to the task is the one that Justice Marshall proposed in his Batson concurrence thirty years ago: eliminate peremptory challenges.
Criminal justice debt has aggressively metastasized throughout the criminal system. A bewildering array of fees, fines, court costs, non-payment penalties, and high interest rates have turned criminal process into a booming revenue center for state courts and corrections. As criminal justice administrative costs have skyrocketed, the burden to fund the system has fallen largely on the system’s users, primarily poor or indigent, who often cannot pay their burden. Unpaid criminal justice debt often leads to actual incarceration or substantial punitive fines, which turns rapidly into “punishment.” Such punishment at the hands of a court, bureaucracy, or private entity compromises the Sixth Amendment right to have all punishment imposed by a jury. This Article explores the netherworld of criminal justice debt and analyzes implications for the Sixth Amendment jury trial right, offering a new way to attack the problem. The specter of “cash-register justice,” which overwhelmingly affects the poor and dispossessed, perpetuates hidden inequities within the criminal justice system. I offer solutions rooted in Sixth Amendment jurisprudence.
The Supreme Court’s May 2016 decision in Foster v. Chatman involved smoking-gun evidence that the State of Georgia discriminated against African-Americans in jury selection during Foster’s 1987 capital trial. Foster was decided on the thirtieth anniversary of Batson v. Kentucky, the first in the line of cases to prohibit striking prospective jurors on the basis of their race or gender. But the evidence of discrimination for Batson challenges is rarely so obvious and available as it was in Foster.
Where litigants have struggled to produce evidence of discrimination in individual cases, empirical studies have been able to assess jury selection practices through a broader lens. This Article uses original data gathered from trial transcripts to examine race- and gender-related exclusion of potential jurors during several stages of jury selection in a set of 35 South Carolina cases that resulted in death sentences from 1997 to 2012. It includes observations for over 3,000 venire members for gender and observations for over 1,000 venire members for race. This is one of few studies to examine the use of peremptory strikes in actual trials; no previous studies of this magnitude have examined this topic in South Carolina.
Consistent with comparable studies, this study’s results revealed that white and black potential jurors had substantially different experiences on their path to the jury box, while gender played a subtler role. Findings included that prosecutors used peremptory strikes against 35% of eligible African-American venire members, compared to 12% of eligible white venire members, and that the death-qualification process impeded a substantial number of African-Americans from serving. These disparities contributed to overrepresentation of whites on the juries. The study’s findings implicate the fairness of some of South Carolina’s current death row inmates, in addition to further buttressing the argument that capital conviction and sentencing procedures are incompatible with the need for representative and impartial juries.
Abstract: Early in this nation’s history, the civil jury was the most important institutional check on biased and corrupt judges. Recently, concerns about judicial bias, especially in elected state judiciaries, have intensified as new studies demonstrate the extent of that bias. But the jury of Hamilton, Madison, and Jefferson is nowhere to be found. In fact, the civil jury is virtually dead. It is used in less than 1% of all civil cases, and even when it makes a rare appearance, the jury’s powers have been significantly curtailed.
This article argues that we must reimagine the civil jury to match the framework of modern civil litigation and modern civil procedure. Civil litigation in the 21st century revolves around pre-trial practice, including the motion to dismiss and the motion for summary judgment. Today, judges alone decide those dispositive motions. And when the judges deciding these motions are biased, the jury is conspicuously absent. I propose that jurors serve alongside judges to decide fact-intensive dispositive motions on what I call Hybrid Judicial Panels. This proposal restores the jury’s historical power to control biased judges, and offers the people themselves a renewed role in modern civil litigation.