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.
Richard Gabriel takes a close look at the new television show 'Bull' and muses about how the show does and does not represent reality as well as how it may effect perceptions of the justice system by potential jurors (who do watch TV).
Rebecca Valez, Tess M.S. Neal, and Margaret Bull Kovera team up to offer a primer on persuasion. What modes of persuasion will work best in the testimony of your expert witness? Then we have trial consultant responses from Jennifer Cox and Stan Brodsky, John Gilleland, and Elaine Lewis and a final reply from the authors.
Andrew Luttrell offers this intriguing strategy (based on his research) to make attitudes stronger and more influential. Trial consultants Sonia Chopra and Charli Morris react to his work with commentary on how they would use this research in day-to-day litigation advocacy.
They are always present and always silent. But what is going on in the minds of those dutiful court reporters as they type everything said in cases ranging from the mundane to the traumatizing? Claire E. Moore, Stanley L. Brodsky, and David Sams talk to court reporters and share their perspectives and coping strategies.
Mykol Hamilton and Kate Zephyrhawke share how to uncover bias in change of venue surveys in criminal cases by using alternate wording for time-honored questions that result in very different answers (and higher bias).
We have been tweaking the website ("we" means Brian Patterson in this instance) to streamline publishing and continue to bring you The Jury Expert. And we are back! Lots of content in this issue as you can see above. Settle in, relax, and sharpen your litigation advocacy skills!
MILWAUKEE — A juror's posts on Facebook during a federal civil rights trial he was hearing could jeopardize a nearly $2 million verdict awarded to a man who claimed he was illegally strip searched by a former Milwaukee police officer....
The article below provides interesting insight on the reason Oregon and Louisiana allow non-unanimous jury verdicts. According to the article, the original intent behind permitting non-unanimous verdicts was to increase the likelihood of convictions and limit the impact of minorities serving on juries.
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.
The Seventh Amendment to the US Constitution and provisions of most state constitutions guarantee citizens the right of trial by jury in common-law civil cases. But it is beyond dispute that the civil jury trial is a vanishing feature of the American legal landscape. In 1962, juries resolved 5.5 percent of federal civil cases; since 2005, the rate has been below 1 percent. In 1997, there were 3,369 civil jury trials in Texas state courts; in 2012, even as the number of lawsuits had risen substantially, there were fewer than 1,200. Similar trends are evident in states across the nation.
What are the causes of the civil jury trial’s near extinction? What are the consequences—for the legal system and society more broadly? And for those who advocate preserving and revitalizing the civil jury trial, what steps might be taken? These will be the core areas of inquiry for the new Civil Jury Project at NYU School of Law.
The Civil Jury Project will engage in three primary areas of activity.
1. It will undertake an empirical assessment of the current role of the jury in our civil justice system, the reasons for its decline, and the impact of that decline on the functioning of the civil justice system overall. The basic question is whether jury trials continue to serve the role anticipated by the Framers of the Constitution. Relatedly, it is important to examine the consequences of the decline and what institutions currently fill the void.
2. It will create education programs and publicity outlets for studies and policy proposals on the jury trial.
3. It will re-evaluate ways in which juries are constituted and jury trials are conducted. The question is not simply whether there should be a right to trial by jury, but how that right can be exercised consistent with basic commitments to speedy and efficient resolution of civil disputes.
In the spirit of Giving Tuesday, ASTC would like to give something back. We are holding a webinar this Thursday, December 1 that is FREE for all members, past members, and potential members. Join us for “Garbage In, Garbage Out: Recruiting Tips to Ensure High Quality Research”. This webinar is not to be missed! Charli and Adam are the gold standard when it comes to executing a proper recruit. The webinar is using a new, jazzy platform that will enhance your viewing experience. Pre-registration is not required. The webinar will begin promptly at 2:00 pm Eastern so please login early.