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.
For nearly eighty years, courts have offered stirring rhetoric about how prosecutors must not strike foul blows in pursuit of convictions. Yet while appellate courts are often quick to condemn prosecutorial trial misconduct, they rarely provide any meaningful remedy. Instead, courts routinely affirm convictions, relying on defense counsel's failure to object or concluding that the misconduct was merely harmless error. Jerome Frank summed up the consequences of this dichotomy best when he noted that the courts' attitude of helpless piety in prosecutorial misconduct cases breeds a deplorably cynical attitude toward the judiciary.
Cognitive bias research illuminates the reasons for, and solutions to, the gap between rhetoric and reality in prosecutorial misconduct cases. This article is the first to explore theories of cognition that help explain the frequency of prosecutorial misconduct and the ways that it likely affects jurors and reviewing judges more than they realize. As a result, the article advocates for sweeping changes to the doctrine of harmless error and modest changes to the doctrine of plain error as applied in prosecutorial misconduct cases. These solutions will help courts abandon their attitude of helpless piety, clarify the currently ambiguous law on what behavior constitutes prosecutorial misconduct, encourage defense counsel to raise timely objections to misconduct, and reverse convictions when misconduct may well have affected the outcome of the case but affirm when the misconduct was trivial.
Few doctrines in patent law are perceived to be as important as the presumption of validity. Despite its perceived importance, the impact of informing the jury of the presumption has not been examined empirically, but rather has remained the province of assumptions and speculation.
Because the presumption is, at bottom, a procedural device that assigns the burden of proof, the Federal Circuit has held that it need not be included in the jury instructions so long as the jury is informed of the clear and convincing standard for proving invalidity. Underlying this holding is the assumption that the presence or absence of the presumption instruction would not materially affect the jury’s decision-making on invalidity issues. But litigants often view the presumption not simply as a procedural device, but also as a mechanism for influencing the jury with potentially outcome-determinative effects. This mismatch in perception between the Federal Circuit and litigants regarding the impact of the presumption instruction has gone largely unnoticed and unexamined.
This Article reports the first experimental study on the impact of instructing the jury on the presumption of validity. The data reveal statistically significant differences in the rate of invalidation depending on whether the mock jurors were informed of the presumption. Based on this finding, the Article analyzes the selection of a validity baseline in light of both procedural considerations and error costs.
This paper argues there is little reason for a hearsay ban in the absence of jury trial. (1) The ban can’t be supported on the ground, dubious in the first place, that jurors are incompetent to give hearsay proper weight. (2) Excluding hearsay has little effect when the screener and the fact-finder are the same person. (3) Because of the greater influence of judges on the proof process, there is less danger that lawyers will use hearsay evidence strategically to deprive the trier of more valuable evidence. (4) Because judges can be required to explain decisions, assessing output is an alternative to trying to control input. (5) The value of complicated, detailed exceptions as a check on discretion is reduced or eliminated. Overall, there is a great weakening of the arguments that, in a jury system, are advanced as outweighing the principle that it is best for the trier to have access to all evidence that has probative value.
This paper was prepared for presentation at a conference on evidence law reform in developing countries that is to be held in Chicago on Nov. 21-22, 2014. It contains other comments about procedural features of the American judicial system that influence the hearsay ban. It also contains comments on the hearsay provisions of a proposed codification (the Tanzania Evidence Act) that was distributed to participants by Professor Ron Allen, one of the organizers of the conference.
The finality of jury verdicts reflects an implicit societal acceptance of the soundness of the jury's decision. Regardless, jurors are not infallible, and the questions they are often tasked with deciding are unfortunately neither obvious nor clear. The length of trial, complexity of subject matter, volume of factual background, and opaqueness of law can converge in a perfect storm that may confound even the most capable juror. Although the Federal Rules of Civil Procedure provide decision rules to resolve inconsistent verdicts, the current remedies authorized by Rule 49—notably, the resubmission of the verdict to the jury and the ordering of a new trial—impose time and money costs on the jury, litigants, and judicial system. The increasing complexity of civil litigation raises the stakes by increasing the likelihood of juror error and the costs of relitigating the case.
This Note proposes the creation of flowchart verdict sheets as a prophylactic against juror confusion. The flowchart verdict sheet builds upon current legal reform proposals to increase juror understanding while decreasing juror confusion and incorporates principles of effective visual design. By mitigating the confusion that can result in inconsistencies before the verdict is rendered, the flowchart verdict sheet enables the judicial system to avoid the costs associated with remedying inconsistent verdicts.
Abstract (to read the entire law review article go here):
The following article on the Trayvon Martin trial suggests that, together, doctrinal and critical analysis can often be more powerful than either alone. Written for a symposium issue on Critical Latino ("Lat-Crit") scholarship, the article posits that jury nullification can operate to reduce the impact of a defense in which the jury does not really believe, such as self defense or stand-your-ground. And in the Martin case, felony murder coupled with felony stalking was an avenue that the Florida prosecutor left unexplored.
Citizens directly participate in the civil justice system in three ways. They can be sued, they can sue another, and they can serve on a jury. Beyond that involvement, the court system is peopled by professionals: judges, lawyers, clerks, and administrators. This Essay considers the reasons our society might want citizens to directly participate as adjudicators in the third branch
Revisiting Bill Whitford’s work on the role of the jury in contract interpretation and his work on consumer form contracting inspired us to take a careful look at a doctrine of contract interpretation that is usually thought to help consumers in interpretive battles with those who draft their contracts unilaterally. But we found that contra proferentem -- the canon that requires construing or interpreting a contract against the drafter when ambiguities arise -- is more confusing than we expected. What we have done here is lay out some of the complexities of the doctrine, focusing on its broader application outside insurance law, its exceptions and limitations, the difficulty of knowing whether it is a rule for the judge or the jury to apply, the various forms the rule can take, and the difficulty of knowing whether it is a default or mandatory rule. We hope laying out these complexities here helps courts and commentators in the future achieve more consistency and nuance in their applications and discussions of this commonly known but little understood principle of contract interpretation.
This Note examines the prevalence of Internet-related juror misconduct in the New Hampshire Superior Court and the efforts of Superior Court judges to detect and prevent such misconduct. I conducted a survey of New Hampshire Superior Court judges regarding their experience with juror Internet misconduct and solicited their feedback about a sample jury instruction. I have incorporated their feedback into a proposed set of jury instructions specifically targeted at reducing juror Internet misconduct.