The literature on the American jury rarely considers the experience of other nations as relevant case studies. This Article describes how the now over 200-year debate in the United States over the proper role and form of American jury practice can be advanced by looking at the jury practice in the small Mediterranean island nation of Malta. Malta – like the United States – has a British-based jury system of roughly 200 years vintage. But it methods of selecting jurors, empowering jurors, and forming verdicts vary dramatically from the United States. The experience of Malta suggests the United States should reconsider the value of voir dire, should allow jurors to be active and interactive participants during trial, and should reform the standard criminal verdict form.
This study compares two Missouri capital cases where evidence of the defendants' personality disorder and childhood abuse history were predominant themes at trial, in order to assess the jurors' receptivity to mental mitigating evidence. The cases confirm theories suggested by Capital Jury Project scholars that jurors engage in arbitrary decision making and premature and automatic death-penalty decisions, that they speculate about parole, and that they are guided by the racial composition of the jury. This study goes one step further to suggest that these errors in decision making can skew death decisions by distracting holdout jurors from considering and giving effect to the mitigation evidence. Some jurors may be more inclined than others to be distracted by arbitrary factors because they focus more on the retributive aspects of the case or the severity of the injury than on defendant's culpability. Juror errors like premature and automatic death-penalty decision making and extralegal considerations about parole and race may drive the majority of jurors to persuade the holdouts to join in a death verdict. These errors may stifle moral considerations of mitigating evidence at deliberations, and they serve as a “counterweight” to the proper weighing of the evidence. The parts of a capital trial, therefore, are linked together and act as weights and counterweights against each other.
Numerous studies have shown that anchoring can have a strong effect on juries. For scholars and policymakers, this evidence is worrisome for the legitimacy and accuracy of jury decisions, especially in the domain of non-economic damages (e.g., pain and suffering). For litigators, this evidence had led to the maxim “the more you ask for, the more you get.” Still, less scholarly attention has been paid to whether an outrageously high request might undermine the plaintiff’s credibility, adversely affect his or her chances of winning at all. This “credibility effect” may be larger than the anchoring effect.
Likewise, little scholarly attention has considered whether a defendant can effectively respond to the plaintiff’s high anchor. One obvious strategy would be a “counter-anchor” – the defendant suggesting a much lower damages award. However, defense attorneys worry that juries may interpret such a strategy as an admission of liability. Thus, in fact, defendants often allow the plaintiff’s anchor to go unrebutted, but this strategy has also not been rigorously tested.
To answer these questions, we conducted a randomized controlled experiment in which we exposed mock jurors to the same shortened medical malpractice trial, manipulated with six different sets of damages arguments in factorial design. Plaintiff demanded either $250,000 or $5,000,000 non-economic damages. The defendant responded in one of three ways: (1) offering the counter-anchor that, if any damages are awarded, they should only be $50,000; (2 ignoring the plaintiff’s damage demand; or (3) attacking plaintiff’s demand as outrageous and using this characterization to argue that plaintiff’s entire case was not credible. Mock jurors were then asked to render a decision on both liability and damages. We then ran these individuals decisions through a computer simulation to create mock jury decisions.
Our study confirmed that anchoring has a powerful effect on the amount of damages mock juries award. However, a large damages demand also had a small negative effect on liability determinations. When looking at the expected value of the case – the average award when both liability and damage award are considered – these “credibility effects” were overwhelmed by anchoring effects. Different defendant’s responses also resulted in different outcomes when plaintiff anchored low, but none of these defense strategies are an effective antidote to the plaintiffs’ high anchor. We discuss implications for litigation strategy and policy.
Civil jury service should be a potent form of deliberative democracy, creating greater civic engagement. However, a 2010 seven-state study of jury service and voting records found no overall boost in civic engagement following service on civil juries, whereas jurors who served on criminal cases did show increased civic engagement following their jury service. This article reports a project that augments the civil jury dataset with information about jury decision rule, jury size, defendant identity, and case type and examines whether specific types of civil jury service influence post-service voting. Taking into account pre-service voting records, jurors who serve on a civil jury that is required to reach unanimity or a civil jury of size twelve are significantly more likely to vote after their service. Jurors who decide cases with organizational as opposed to individual defendants likewise show a boost in voting behavior, as do jurors deciding contract or non-automotive torts cases compared to automotive torts. Limitations and implications for deliberative democracy theory and jury practice are discussed with these findings.
Abstract: Laurence Tribe’s “testimonial triangle” has been a staple of evidence law casebooks for several decades and has been cited frequently in support of the rule against admitting hearsay into evidence. Yet in the 40 years since Professor Tribe published his article on the testimonial triangle, no one has examined whether the central tenets of it, as they relate to hearsay, pose an actual problem for legal fact finders. This Article is the first to evaluate that proposition empirically.
The central idea behind Tribe’s Triangle is that (1) several infirmities lurk behind all testimony provided in court, and (2) testimony based on hearsay is subject to two sets of infirmities — those of the in-court witness and those of the original declarant. With respect to hearsay evidence, policymakers fear that fact finders are blind to the infirmities of the original declarant — who is not subject to in-court cross-examination — and will give hearsay evidence undue weight. Two original experiments reported in this Article, which rely on tenets of social and cognitive psychology, challenge that assumption and suggest that this fear is largely unsupported.
The studies reported in this Article suggest that, consistent with empirical work on implicit goal activation and psychological distance, jurors are critically attuned to the testimonial infirmities that lurk beneath hearsay evidence and discount the evidence accordingly. These findings have far-reaching implications for the hearsay doctrine, for the contentious debate over juror competency, and for practicing attorneys who make decisions about hearsay evidence at trial. They also provide a theoretical framework for further empirical hearsay research and suggest that a dominant rationale for the hearsay ban — that jurors are incompetent to evaluate it — is empirically suspect
In 2004, the Province of Córdoba implemented lay participation in criminal decisions by means of Law 9182. The law was passed within a context of national debate concerning efficient measures to fight against insecurity and crime. These debates were brought about by a social movement led by Juan Carlos Blumberg, which demanded harsher penalties and judicial reform as means to improve urban safety.
Data obtained in two public opinion studies, conducted in 1993 and 2011, are used to analyze trends in attitudes towards criminal punishment, including issues such as the image of criminals or opinion on capital punishment. The revision also includes the influence of the fear of crime on attitudes towards punishment.
The analysis of citizen views on punishment extends past public opinion data to the judicial field, reviewing how these views are expressed during jury service. Using a set of 213 sentences decided between 2005 and 2012, juror and judge decisions on the same cases are compared.
This essay offers a menu of procedural alternatives for coping with the potential, some would say inevitable, abandonment of the prior conviction exception to the rule in Apprendi v. New Jersey. It compiles options states have used for years to manage jury prejudice when proof of prior conviction status is required, including partial guilty pleas, partial jury waivers, bifurcation of the trial proceeding, stipulations, and rules limiting what information about the prior conviction may be admitted. These options belie the claim that the exception must be preserved to prevent jury prejudice against defendants. For courts and legislatures interested in anticipating this development in Apprendi law, or interested in joining the states that already recognize that a prior conviction must be proven like any other element whenever it increases the penalty range beyond the range allowed without the conviction, this essay provides a handy reference to existing rules and statutes that could serve as blueprints for reform.
Abstract:What was the role played by jurors in civil and criminal trials from the late eighteenth to the late nineteenth century? This article establishes that during this period, juries in Ireland played a relatively active role. It examines individual reports of civil and criminal trials and considers the nature of juror participation during this period, establishing that jurors frequently questioned witnesses, berated counsel, interrupted judges, demanded better treatment and added their own observations to the proceedings. This article compares the nature and level interaction from different categories of jury – civil and criminal, common and special. It asks why Irish jurors continued to be active participants until late in the nineteenth century, and how the bench and bar received their input. It also suggests that English jurors may also have played a more active role during this period than previously thought. Finally, the article considers some possible reasons for the silencing of Irish jurors by the late nineteenth century.
A fundamental tenet of the American justice system is that an impartial jury is an essential component of a fair trial. In addition to a litigant's right to have his or her case decided by jurors free of bias or prejudice, individual citizens enjoy a separate right to be considered for jury service without the taint of improper discrimination. Scholars have called for the elimination of peremptory challenges in jury selection, arguing they lack utility and are exercised in an unconstitutionally discriminatory manner.
No one, however, has proposed that prosecutors should voluntarily waive peremptory challenges even if the general practice is retained. A prosecutor's ethical duty goes beyond advocacy; unlike other lawyers, the prosecutor is uniquely duty-bound to "seek justice." Prosecutors' use of peremptory challenges is an exercise of discretion to be evaluated against this distinct ethical standard. A prosecutor cannot deny that peremptory challenges may be exercised in violation of the Equal Protection Clause at least some of the time by some of the lawyers in her office. In addition, prosecutors cannot always elicit adequate information about prospective jurors to form rationally-based reasons for excusing jurors peremptorily, which raises a separate concern about a prosecutor's exercise of peremptory challenges as an irrational, arbitrary, and capricious governmental act.
Japan’s efforts over the past decade to integrate citizens into its criminal justice system represent one of the most fascinating modern experiments in judicial reform. In 2009, when Japan formally reintroduced lay participation into criminal trials after a six decade hiatus through its or “saiban-in seido” or lay judge system, the domestic stakeholders affected by this change greeted the new quasi-jury system with mixed messages. Political reformers, bureaucrats, many attorneys, the Japan Federation of Bar Associations (“JFBA”), and scholars were excited and encouraged about the potential of the new system. Conversely, the majority of Japanese citizens, the courts, the media, and others were much more critical. These skeptics contended that Japan’s reforms and sizeable investment in citizen participation would be futile based on cultural traditions and institutional impediments. At the same time, there was much interest in the judicial reforms and new lay judge system outside of Japan. Countries across Asia and around the world watched the move towards greater democratic participation in the judicial system with much anticipation. Going forward, the world will continue to study the country’s involvement of average citizens in the judicial decision-making process.
As the lay judge system has reached its fifth anniversary of operation, now is an excellent time to scrutinize its accomplishments and shortfalls. This paper will explain how Japan has accomplished, at least in part, the original goals underlying the lay judge system, including making the justice system “easier to use, easier to understand, and more reliable.” It will also examine how Japan’s new lay judge system has increased citizen interest in the judicial process and largely enhanced citizens’ trust in the legal system. Additionally, this paper will explore the challenges facing the system and discuss whether additional steps might be taken to more fully advance these goals, including the expansion of citizen participation into the civil justice realm.