The right of an accused to trial by jury has traditionally been seen as a fundamental protection for the citizen against the Crown, and, in the words of Lord Devlin, it is “the lamp that shows that freedom lives”. As such, it should be remembered that trial by jury is a right of the accused, rather than the right of the community. This paper does not seek to consider all issues concerning the defendants’ rights in criminal jury trials in New Zealand. Rather, the parameters of this paper are constrained to exploration of several key issues pertaining to the defendant’s interest in peer representation. The Law Commission has revisited the issue of peer representation several times in the past few decades. Although acknowledging present jury representation issues, the Law Commission continues to emphasize the community’s interests over the defendant’s fair trial rights affirmed in the New Zealand Bill of Rights Act 1990. This paper therefore analyses the failures of present jury representation from the defendant’s point of view and contemplates how peer representation may best be achieved, with a focus on the source of one’s peers, but also with due consideration of the impact of in-court jury selection procedures.
The investigations of local police officers for causing the deaths of unarmed civilians in Ferguson, Missouri and Staten Island, New York have generated significant national discourse about the fairness and transparency of grand jury proceedings. This article addresses one crucial aspect of this ongoing debate; that is, whether witnesses before the grand jury should be allowed to talk to each other and to the media about the contents of their testimony.
In the federal system and in the majority of states that still employ the grand jury as an investigative and charging tool, obligations of grand jury secrecy do not extend to the witnesses themselves. Only persons performing an “official function” before the grand jury are typically covered by the oath of secrecy. Absent a contract or court order, grand jury witnesses are free to talk with each other and to the media. Nevertheless, prosecutors often seek to handcuff grand jurywitnesses in talking to others about their testimony by drafting one-sided cooperation agreements that impose obligations of confidentiality on grand jurywitnesses in exchange for charging or sentencing concessions. Courts on occasion also impose gag orders on grand jury witnesses as part of formal immunity orders. In this article, the author argues that such efforts by prosecutors and courts to impose secrecy obligations on grand jury witnesses violate attorney discipline rules and the First Amendment. As importantly, they impede the target’s access to information essential to enable him to marshal a defense, thus undermining the grand jury’s historic function as a shield against unfounded prosecutions.
The goals of this paper are twofold. First, it describes and tests a basic organizing framework for when a plaintiff’s race, ethnicity, and gender are most likely to impact civil jury awards. The framework takes into account psychological and structural sources of bias, and the ways in which they can be expected to interact systematically with instructions that provide jurors with more or less discretion. Second, the paper introduces a methodological innovation to overcome one of the primary barriers to empirical field research on race bias in civil legal decisions: the absence of party demographic information. The data set is comprised of jury verdicts in tort cases combined with information from the U.S. Census Bureau regarding race and ethnicity. Statistical tests measure the relationships between race, ethnicity, gender and awards for economic damages and pain and suffering. Overall, the results were consistent with the psycho-structural framework. Where jurors had discretion (i.e., pain and suffering damages) they awarded less to Black plaintiffs than to White plaintiffs. Where jurors had less discretion (i.e., lost income) they awarded less to female plaintiffs and more to Asian plaintiffs than to male and White plaintiffs, respectively, a reflection of structural income disparities. This paper thus presents a novel and useful framework and method for understanding how structural and psychological factors lead to differential jury awards.
This Article presents an empirical analysis of how race, income inequality, the regional history of the South, and state politics affect the development of tort law. Beginning in the mid-1960s, most state appellate courts rejected doctrines such as contributory negligence that traditionally prevented plaintiffs’ cases from reaching the jury. We examine why some, mostly Southern states did not join this trend.
To enable cross-state comparisons, we design an innovative Jury Access Denial Index (JADI) that quantifies the extent to which each state’s tort doctrines enable judges to dismiss cases before they reach the jury. We then conduct a multivariate analysis that finds strong correlations between a state’s JADI and two factors: (1) the percentage of African Americans in its largest cities, and (2) its history as a former slave-holding state.
These findings suggest that some appellate courts, particularly those in the South, afraid that juries with substantial African-American representation would redistribute wealth or retaliate for grievances, struck preemptively to prevent cases from reaching them. Surprisingly, we do not find a consistent association between a state’s JADI and either income inequality or its political leanings. In other words, race and region, rather than economic class or politics, explain the failure to embrace pro-plaintiff changes that occurred elsewhere.
We suggest, therefore, that states that declined to discard antiquated anti-jury substantive doctrines between the mid-1960s and the mid-1980s should acknowledge that these precedents were tainted by their predecessors’ efforts to keep tort cases from African-American jurors and refuse to accord them deference.
Korea's experience with its new jury system offers many lessons for those interested in juries and jury reform worldwide. Aiming for a unique jury system that was ideally suited to Korean citizens and their legal system, those who crafted Korea's jury incorporated elements of both classic jury systems and mixed tribunals. Initially, the jury deliberates on guilt independently of the judge, but the procedure includes optional as well as mandatory opportunities for the presiding judge to advise the jury during its deliberation. The Korean jury delivers an advisory rather than binding jury verdict. These and other features of the Korean jury system are analyzed and contrasted with practices elsewhere. The unique procedures associated with Korean jury trials offer a natural experiment and deserve continuing serious study.
The civil justice system has many repeat players with a deep interest in the civil justice system because they are often the target of personal injury lawsuits, most prominently product manufacturers and physicians, and the companies that insure them. Following a blueprint drafted by leading corporate lawyer Lewis Powell, prior to his appointment to the Supreme Court of the United States, these deep pocket interests have spent four decades and tens of millions of dollars maligning the civil jury and trying, with notable success, to influence legislators, administrators, and judges, both state and federal, under the catchy, but misleading banner of “tort reform.” These campaigns have been amplified by media coverage of the civil justice system that has been unsophisticated, and at times misleading.
This article argues that separation of powers concerns counsel that we should be cautious about constricting the role of the jury, one of our most democratic institutions. Juries provide checks and balances on government; juries are independent; juries bring community values into the judicial system; juries are fair; juries legitimatize the civil justice system; and, juries generally “get it right.”
Instead of draconian reforms like damage caps, the article argues for the primacy of judges when adjustments to the civil justice system are called for. Judges bring legal experience and knowledge not shared by most legislators and administrators; the nature of the judicial process makes judges predictable and their work transparent; judges are far less likely to be “captured” by special interests than legislators and administrators; and state judges have the best perspective of how the civil justice system works and are thus in the best position to implement reforms when necessary.
The article concludes with a survey of various tools, some time-tested and others novel, by which judges can oversee the work of juries, and the civil justice system more generally.
Ensuring that minority groups are treated fairly in the legal process is an important concern. The Castaneda v. Partida and Duren v. Missouri decisions enable courts to monitor the demographic composition of the selection of potential jurors using a variety of statistical techniques. This paper shows that Fisher’s exact test is appropriate for examining statistical data on peremptory challenges when Batson issues are raised. In addition to being a well-established method, it evaluates the challenges made by each party assuming the other side is fair. Thus, it is consistent with the Supreme Court’s statement in Miller-El that the defendant’s pattern of challenges is not relevant in determining whether the prosecution’s challenges were fair. Although one has the entire population of potential jurors and the number of peremptory challenges, which are regarded a sample from the venire, both the population and the sample are of small size. This limits the power of the test to detect a system in which the odds a minority member is challenged are two or three times those of a majority member. When data is available for similar or related trials, an appropriate method for combining the Fisher tests for each trial is noted. In every case where the Supreme Court found discrimination in peremptory challenges and the data is reported, even though the power of Fisher’s exact test is low, it found a statistically significant difference in the proportions of minority members of the venire and majority members removed. It also finds a statistically significant excess of African-Americans were challenged by the prosecutor in Foster. In a case where the Court did not find bias in peremptory challenges the test did not have sufficient power to detect a substantial disparity, so the Court properly did not give the statistics much weight.
Juries are deeply enshrined by the U.S. Constitution and firmly embedded in our system of justice. Thus, it is surprising that jurors do not yet have something akin to their own widely adopted bill of rights. Regrettably, this is the result of too many trial judges failing to practice WWWJ — “what would jurors want” — a jury centered approach to judging. The state of Arizona, with its launch in 1993 of the Arizona Jury Project, is the pioneering jurisdiction of a more jury-centered approach. If trial judges embraced WWJW it would engender greater respect for jurors and lead to trial innovations which would significantly enhance the juror experience. These innovations would also increase the fairness of jury trials. Adopting a bill of rights for jurors improves jurors’ positive experiences and feelings about trial by jury as they participate in the purest form of democracy in action. This article proposes five bill of rights that have been proven to achieve these goals. If adopted by courts and practiced by trial judges, jurors across the nation will exit courthouses as our greatest community ambassadors for the Sixth and Seventh Amendment rights to trial by jury. This is an important step to ensuring that vanishing civil jury trials are not, going, going, gone