In every criminal trial, the defendant possesses the right to testify. Deciding whether to exercise that right, however, is rarely easy. Declining to testify shields defendants from questioning by the prosecutor and normally precludes the introduction of a defendant’s prior crimes. But silence comes at a price. Jurors penalize defendants who fail to testify by inferring guilt from silence.
This Article explores this complex dynamic, focusing on empirical evidence from mock juror experiments – including the results of a new 400-person mock juror simulation conducted for this Article – and data from real trials. It concludes that the penalty defendants suffer when they refuse to testify is substantial, rivaling the more widely-recognized damage done to a defendant’s trial prospects by the introduction of a criminal record. Moreover, these two penalties work in tandem, creating a “parallel penalty” effect that systemically diminishes the prospects of acquittal and incentivizes guilty pleas.
The empirical evidence surveyed, including the new juror simulation, will be of obvious interest to participants in the criminal justice system. But, as the Article explains, the data also present a powerful indictment of the system itself.
Bad actors in patent litigation can face serious consequences. Infringers who are found to “willfully” infringe may be subject to trebled damages. Patentees who assert weak claims in bad faith can be ordered to pay the defendant’s attorneys’ fees. These remedies are of such importance to the patent system today that the Supreme Court reinvigorated both of the respective doctrines in back-to-back landmark decisions in 2014 (Octane Fitness) and 2016 (Halo Electronics).
Those decisions have helped district courts more effectively punish and deter misconduct. But the Supreme Court neglected to address a critical part of these remedies — whether and to what extent they should be tried to a jury. Under current law, willfulness can be tried to a jury but bad-faith enforcement cannot. This means that plaintiffs alone can legitimately cast aspersions at defendants that profoundly color the case and the jury’s views of it.
It has long been held that willfulness is an issue triable by jury, but courts have reached that conclusion without conducting the proper analysis, which requires delving into the historical treatment of the issue. This article performs that analysis, finding that the Seventh Amendment does not guarantee a right to try willfulness to a jury. Nor does the Seventh Amendment require that questions of bad-faith enforcement be tried to juries. Both issues lack clear historical antecedents or analogues that would suggest juries decided the issues when the Seventh Amendment was ratified.
Whether such issues should be tried to juries likely comes out in the negative as well. Juries are ill-equipped to appreciate the proper significance and context of evidence touching on willfulness and bad-faith enforcement, which typically includes matters of claim construction, discovery, legal interpretation, or settlement discussions. And evidence about a party’s culpability can easily bleed into the threshold liability and damages determinations, resulting in unsupportable compromise verdicts on those issues.
The best practice would be to try neither issue, but as it is, with willfulness being submitted to juries, a separate question is whether that alone justifies trying bad-faith enforcement to juries as well. This article demonstrates that basic fairness, as well as evidentiary practicalities for how such issues are proven, compels that both issues be tried together, and to the same jury, to ensure that juries hear both sides of the story before they assign moral blame.
This Article argues that criminal convictions in state courts should be subject to the same unanimity requirements that the Sixth Amendment imposes on federal criminal convictions. Part I of this Article provides an overview of the U.S. Supreme Court’s jurisprudence on jury size and nonunanimity. Part I includes a discussion of Apodaca v. Oregon and Johnson v. Louisiana, the Court’s 1972 decisions holding that the Sixth and Fourteenth Amendments did not require jury unanimity in state court criminal jury trials even though federal law requires that federal juries must reach criminal verdicts unanimously. This is followed by a summary of many of the recently denied certiorari petitions that have pressed the Court to reconsider the jury unanimity issue in light of changing Sixth Amendment jurisprudence and social science evidence. Part II explains how the Court’s recent jurisprudence contradicts its 1972 Apodaca and Johnson rulings under the doctrine of incorporation. Specifically, applying the Court’s 2010 McDonald v. City of Chicago incorporation approach to Oregon’s and Louisiana’s nonunanimous jury law signifies that overturning Apodaca should be easy, and in fact indicates that the Court should incorporate the few unincorporated provisions of the Bill of Rights. In addition to the incorporation doctrine, Part III argues that nonunanimous verdicts undermine the reasonable doubt requirement of the right to a jury trial and that the Court’s own case law prior to and since Apodaca and Johnson confirms this right to unanimity, which ensures that the burden of proof beyond a reasonable doubt as a component has been met. Part IV sets forth the current research that shows that unanimity is essential to the purposes of the fair cross section and complete deliberation requirements of the Sixth Amendment. Part V addresses how nonunanimous verdicts contribute to convicting innocent defendants, and Part VI discusses how nonunanimous verdicts disproportionally affect both minority jurors and minority defendants in Oregon. Finally, this Article concludes by recommending that the Supreme Court overturn Apodaca v. Oregon, as the law and current research supports that unanimous juries should be required in all criminal cases. Moreover, even if the Supreme Court does not act, Oregon’s citizenry and Legislature should support amending the state constitution to abolish majority verdicts in all criminal cases. Such an amendment would serve to protect innocent defendants and end a rule that was founded to silence minority viewpoints.
The right to trial in civil cases is enshrined in the United States Constitution* and most state constitutions. Most people, laypersons and legal professionals alike, consider trials an essential component of American democracy. But real life civil trials are disappearing from the American legal landscape. Films, like books designed for consumption by the general public, are cultural documents that embody a society’s attitudes about and views of the law and the legal system. Courtroom films are the most easily recognizable and popular subset of films about law because they provide the stage for an examination of some aspect of a trial — juries, lawyers, litigants, laws or the legal process itself. Some legal commentators contend that legal films have the capacity to teach and encourage film audiences to think more critically about the legal system. But most trial films involve criminal cases. Thus this essay asks whether the distinction between criminal and civil films trials is important when determining the impact of the decline in real-life civil trials on American popular culture and courtroom films in particular.
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” U.S. CONST. amend. VII.
This paper presents a detailed study of jury awards for compensatory damages to victims of crime. Such awards typically result when victims sue third parties who are responsible for some form of negligence such as inadequate security or alcohol over-service. We obtained nationwide data on jury awards to crime victims and examined the relationship between physical losses, medical costs, offender and victim characteristics, and the ultimate compensatory jury award. Despite the large variability in jury awards, we were able to explain 45%-50% of the variation in the natural log of jury awards for physical assault. The awards systematically vary with the severity of physical injuries sustained by the victim. Considerably more variation is found in the case of sexual assault. We use our regressions to construct estimates of noneconomic damages – the pain, suffering and reduced quality of life endured by the average victim of violent crime in the U.S.
This paper reports the results of a study investigating how jurors interpret and digest scientific evidence when it is presented to them in a trial setting and how differences in juror attitudes and education influence interpretation of scientific evidence. The study involved a sample of mock jurors recruited from Amazon Mechanical Turk (n=91). Study subjects each viewed a transcript of a mock legal case involving DNA evidence. Results suggest that when presented with conflicting expert testimony, jurors will interpret evidence in a way that is consistent with pre-existing attitudes or beliefs (such as political predispositions). Importantly, results suggest that a juror’s ability to do this and therefore the polarization between jurors of different political pre-dispositions increases as level of education increases. For jurors classified as Conservative, as education levels increased, the prosecution expert was rated as more credible and the defendant was found guilty more often. For jurors classified as Liberal, as education levels increased, the prosecution expert was rated as less credible and the defendant was found guilty less often. Theoretical and practical implications of these findings are discussed.
The judicial practice of pattern jury instructions causes disingenuous application of the law and continues to be a problem across the United States. The average American adult has an eighth-grade reading comprehension, but pattern jury instructions are written on average at a level of complexity requiring a twelfth-grade reading comprehension or greater. This discrepancy in the average jury’s reading comprehension and the average pattern jury instruction’s readability causes juries to miscomprehend the law. When juries miscomprehend the law they disingenuously apply it to their determinations of fact, either by unknowingly misapplying it, or by relying on sociological and behavioral mechanisms to make up for their lack of comprehension. Thus, proper jury process – the process of a jury comprehending the law and genuinely applying it – is hindered by pattern jury instructions.
Jury instruction reform is not a new idea among legal scholars. The Plain English reform movement seeks to revise all pattern jury instructions to one standard, Plain English. But this reform has major flaws. Jury instructions written at a Plain English standard may be under-revised: if a specific jury has a comprehension lower than the Plain English standard, then the instructions have failed to adequately instruct the jury. They may also be over-revised: if a specific jury has a comprehension greater than the Plain English standard, then the instructions have unnecessarily redacted the legal precision of its language. Further, Plain English revision uses two major linguistic components, semantics and syntax. By significantly revising semantics in pattern jury instructions, appellate courts are more likely to find reversible error. Thus, Plain English reform fails to adequately ensure each jury has instructions optimal for its specific comprehension, and it fails to adequately ensure that the instructions will avoid appellate reversal.
This article is the first to provide a jury instruction reform method that ensures a specific jury will comprehend a specific set of jury instructions. This article argues that by using syntactic measurements of both a specific jury’s comprehension and a specific set of pattern jury instructions’ readability, an attorney can then tailor the jury instructions to correlate that specific jury’s comprehension to the jury instructions’ readability. This article contends that by limiting revision to syntactic components of linguistics, the instructions retain legal precision and avoid risk of reversible error. By optimizing the ability of a specific jury to comprehend its instructions, that jury now has a greater ability to genuinely apply the law. Thus, tailored instructions, rather than pattern instructions or Plain English instructions, is the appropriate method to encourage proper jury process.
Jurors receive little guidance in determining awards for pain and suffering and punitive damages. Consequently, these awards are notoriously unpredictable, undermining the law’s objectives and causing a wide range of harms. Among the methods that have been proposed for addressing the unpredictability of such awards is the use of information regarding awards in comparable cases (“prior-award information”) as guidance for award determinations. This paper reports and interprets the results of a factorial experiment designed to test the effects of prior-award information at different levels of bias, variability, and form of presentation on the magnitude, spread, and accuracy of awards for pain and suffering and punitive damages. The paper examines juror behavior in response to prior-award information, and interprets whether such information can be expected to improve awards under a robust set of conditions. In summary, the data provide strong evidence that prior-award information improves the accuracy of awards (as defined) and that its beneficial effect on the dispersion of awards generally dominates any distortion, or bias, caused by the information. Furthermore, the data provide evidence that triers of fact respond to prior-award information as predicted in recent literature, and in line with the “optimal” use of such information.
Modern jury selection is pulled in two directions. Equal protection prohibits racial discrimination, but the traditional peremptory strike permits exclusion of a juror without explanation. To reconcile this tension, the Court developed the Batson framework, requiring lawyers to articulate ex post race-neutral justifications for suspicious strikes. But many doubt Batson’s efficacy at uncovering latent discrimination. Last term, while recognizing a Batson violation in Foster v. Chatman, the Supreme Court counter-intuitively reinforced this concern. Foster is the rare case in which prosecutors documented in writing their reliance on race. A framework that depends on such transparency is weak and ineffective. And the systemic persistence of discrimination, three decades after Batson was decided, has convinced many that the only solution is to eliminate peremptory strikes in their entirety.
In this article, I offer an alternative strategy. I introduce a new mechanism to reform – but not entirely eliminate – the system of peremptory challenges: the “hybrid jury strike.” Hybrid strikes would fall in between traditional peremptory challenges, which may be exercised at the party’s discretion, and challenges for cause, which may be granted only upon an adequate showing of the juror’s bias or other basis for disqualification. Hybrid strikes would require ex ante justification but not a conclusive showing of bias; they could be used to exclude a set number of jurors who survived non-pretextual and meaningful cause challenges. Hybrid strikes could replace traditional peremptories wholesale or could be leveraged asymmetrically – such as by preserving traditional peremptories for the defense while permitting only hybrid strikes for the prosecution.
Hybrid strikes offer an intermediate approach between the status quo and complete abolition of peremptory challenges. They would meaningfully curtail discrimination while preserving the most legitimate function of peremptory challenges: to foster jury impartiality by providing a buffer zone for cause challenges when evidence of bias is credible but insufficient or when judges erroneously reject them.