The literature considering various possible procedural reforms to American jury trial practice suffers from a high dose of American Exceptionalism. The experience of other nations rarely is acknowledged, much less considered as possibly informative. This Article argues that as a British-derived system of roughly identical vintage as the United States, the jury practices of Malta can inform American practice in three respects: (1) the desirability of increased juror interaction – in particular allowing oral juror questions to witnesses and allowing deliberation during the trial, (2) the utility of eliminating voir dire in jury selection, and (3) the possibility of procedural reform such as modifying the verdict form to insulate jurors from external pressures on the verdict.
After two grand juries failed to indict the police officers that killed Michael Brown and Eric Garner in 2014, our nation has engaged in polarizing discussions about how juries reach their decision. The very legitimacy of our justice system has come into question. Increasingly, deep concerns have been raised concerning the role of race and gender in jury decision-making in such controversial cases. Tracing the roots of juror decision-making is especially complicated when jurors’ race and gender are factored in as considerations. This Article relies on social science research to explore the many cross-sectional challenges involved in the jurors’ decision making in the George Zimmerman case. To analyze how the Zimmerman jurors’ race and gender may have affected their decision-making in the case, we present empirical studies evaluating the effect of race and gender on juror decision-making in criminal cases. Our aim in this Article is to create dialogue about an important challenge for our justice system: How can we fulfill the constitutional mandate that juries be diverse? How can we overcome the barriers to fulfilling this ideal? We conclude by demanding stronger measures to ensure that juries represent a fair cross-section of the communities that they represent. Our suggestions also include focusing on the prosecutor’s special obligations to serve justice by selecting a jury that adequately represents the community from which it is drawn. These and other changes are crucial to ensuring that communities accept even the most controversial jury decisions as legitimate.
This research presents aspects of juror receptivity to mitigating factors of mental, cognitive/intellectual and situational impairments in capital sentencing decisions. The study examined types of mental factors, as well as the gender of defendants, the aggravating nature of the crime and victim vulnerability. An exploratory cross-tabulation analysis evaluated the percentages and relationships between juror closed-ended CJP survey responses to mental sentencing factors and mental evidence presented at trial for 38 cases. While the sample size was too small in some cells for significance testing, the percentages demonstrated patterns. A detailed qualitative analysis of 12 cases with strong evidence of mental defenses compared juror open ended responses to trial evidence. The results were organized into five salient themes: personality disorders, intellectual disability, drug addiction, female defendants, and child victims.
The intensive qualitative analysis corroborated the findings of the exploratory cross-tabulation. Jurors were more receptive to intellectual disability and “organic” impairments than to temporal personality disorders. Jurors were not responsive to learning disabilities. Jurors found evidence of drug addiction to be more aggravating than mitigating. Where antisocial disorders and very aggravated crimes and victimizations were presented, more jurors found mental disturbance as a sentencing factor. The intensive analysis explained that jurors found defendant’s mental illness factors as aggravating, emphasizing the “brutality” of the crimes. Jurors were dubious of contested psychological testimony, focusing on family background and lay explanations. Arbitrariness was found in flawed judicial guidance and prosecutorial rhetoric, urging that intoxication, youth and abuse were not mitigating. Jurors with premature first-vote pro-death views were more distracted by arbitrary factors. They viewed defendant’s early admissions to determine capital guilt and used voir dire oath as a rationale to embarrass holdout jurors.
Jurors failed to respond to mental evidence because of difficulty evaluating contested evidence and because of distractions owing to extra-legal factors unrelated to the evidence; premature automatic death-penalty decisions, parole speculation and racial considerations among jurors. This suggests that threshold errors can skew death decisions by distracting holdout jurors from urging consideration of mitigation and chilling dissent. These errors stifle moral considerations and serve as a “counterweight” to the proper weighing of evidence.
How should trial experts approach cases of racial profiling? As a British philosopher, albeit one who has lived and worked in the States, all I can offer are some suggestions and some questions to help readers make the most of their expertise. These are motivated by two concerns. First, from a British perspective, American jury selection is alien to our understanding of the ideal that people are tried by ‘a jury of their peers’. In particular, the American practice of selective strikes raises the worry that you cannot consistently ask jurors to evaluate the use of race-based expectations by police when the jury selection process, itself, is shaped by the idea that race is a good predictor of people’s beliefs and behaviour. The second concern is an extension and generalisation of the first, and exemplifies the problems posed by racial profiling: what does it mean to treat people as equals in a world where people are disadvantaged because of their race? I will take these concerns in reverse order, briefly say something about them, and then suggest some approaches to racial profiling that, I hope, will be of practical, as well as theoretical, use.
This article examines the practice of restricting jury service to citizens. While some jurisdictions, such as the United Kingdom and New Zealand, base jury eligibility on permanent residency status, others, such as Ireland and the United States limit it to citizens. This article examines sets out two principal arguments in favour of abolishing citizenship requirements. First, the need to ensure that juries are broadly representative of the community from which they are drawn. Secondly, the need to promote integration more generally, particularly as Western societies become increasingly multicultural. The article also considers specifically Irish constitutional and historical reasons why this citizenship requirement is difficult to justify.
This article addresses the disruptive impact of big data technologies on jury selection.
Jury selection requires personal information about potential jurors. Current selection practices, however, collect very little information about citizens, and litigants picking jury panels know even less. This data gap results in a jury selection system that: (1) fails to create a representative cross-section of the community; (2) encourages the discriminatory use of peremptory challenges; (3) results in an unacceptably high juror “no show” rate; and (4) disproportionately advantages those litigants who can afford to hire expensive jury consultants.
Big data has the potential to remedy these existing limitations and inequities. Big data technologies offer a highly personalized, current, and targeted mechanism for locating citizens in a particular jurisdiction. Big data companies have been collecting public and quasi-public information about most American’s consumer, financial, health, political, and personal interests for years. For courts, the availability of real-time, personally targeted data provides the potential for algorithmically-precise representative jury venires and more efficient jury summonsing practices. This collected personal data also can be quite revealing about attitudes, inclinations, and interests. For litigants, the available information could provide a wealth of insights once only available from expensive jury consultants. Big data has the potential to democratize information about jurors leading to less discriminatory jury selection practices. Big data information, thus, has the potential to revolutionize how jury pools are selected and jury panels are picked.
Yet, adoption of big data technology carries real risks. Traditional jury roles and values, including the continued legitimacy of the jury system, itself, are at stake. Increased big data collection of personal information involves an invasion of privacy that could result in significant backlash against jury service. Affirmative targeting of jurors also presents thorny constitutional issues, as considerations of race, gender, or ethnicity could run into equal protection problems. Equalizing the availability of big data information about jurors, and making it a part of the jury selection system, raises practical, theoretical, and constitutional dilemmas all of which are addressed in this article.
Tanneika Minott (to access the entire article go here)
Advancements in technology have now made it possible for scientists to provide assessments of an individual’s mental state. Through neuroimaging, scientists can create visual images of the brain that depict whether an individual has a mental disorder or other brain defect. The importance of these advancements is particularly evident in the context of criminal law, where defendants are able to dispute their culpability for crimes committed where they lack the capacity to form criminal intent. Thus, in theory, a neuroimage depicting defective brain functioning could demonstrate a defendant’s inability to form the requisite criminal intent. Due to early successes in high-profile cases where advanced neuroimaging was used in this way, many researchers believe that the use of neuroimages to substantiate claims of diminished capacity and insanity is a viable option for criminal defendants. This Issue Brief argues, however, that though the use of neuroimages may have a positive effect on outcomes in theory, in actuality, the use of neuroimages will only have a negligible impact on sentencing outcomes.
This article explores the role of emotion in the capital penalty-phase jury deliberations process. It is based on the qualitative analysis of data from ninety video-recorded four to seven person simulated jury deliberations that examined the influence of race on death sentencing outcomes. The analysis explores when and how emotions are expressed, integrated into the jury’s sentencing process, and deployed in penalty-phase decision making. The findings offer critical new insights into the role that emotion plays in influencing these legal judgments by revealing how jurors strategically and explicitly employ emotion in the course of deliberation, both to support their own positions and neutralize or rebut the opposing positions of others. The findings also shed light on the various ways that white male capital jurors utilize a panoply of powerful emotion-based tactics to sway others to their position in a manner that often contributes to racially biased outcomes.
The history of the Grand Jury in the Anglo-American legal system is briefly sketched in the context of its role as an arbiter of control of police violence and illegal behavior. The nature of charging of police with crimes associated with shooting civilians, especially minorities and the ethnic and gender makeup of Grand Juries is considered as a factor. The cost of liability to cities from police shoots is addressed in the context of the benefits of professional police services versus alternatives.
Abstract: The thesis explores decisions from the European Court of Human Rights and the Norwegian Supreme Court from 2009 to 2013 regarding what is considered as sufficient reasoning in jury cases. The study illustrates how, in a specific case, the national court is influenced by the ECHR, and how in turn the ECHR is influenced by reasoning in decisions by national courts.