The special verdict is plagued by two philosophical paradoxes: the discursive dilemma and the lottery paradox. Although widely discussed in the philosophical literature, these paradoxes have never been applied to jury decision making. In this Essay, I use the paradoxes to show that the special verdict’s vote-reporting procedures can lead judges to render verdicts that the jurors themselves would reject. This outcome constitutes a systemic breakdown that should not be tolerated in a legal system that prides itself on the fairness of its jury decision making process. Ultimately, I argue that, because the general verdict with answers to written questions does not suffer from these paradoxes, it should be adopted in place of the special verdict.
If anyone needed further proof that social media has dramatically impacted jurors and jury service, I recommend reading a recent article from the SF Gate entitled Hashtag fail: Dear jurors, please stop live-tweeting your #juryduty. In the article, the author gives would-be jurors helpful hints on how to tweet properly while serving as a juror. Interestingly, the author's tips are based on actual tweets from jurors.
Last week, Federal Judge George O'Toole denied Dzhokhar Tsarnaev's request to move his trial out of Boston. As some will recall, Mr. Tsarnaev is charged with carrying out the Boston Marathon bombing. The judge believes that despite widespread media reports about the bombing and the fact that the the trial will be held one mile from the finish line of the marathon he can still impanel impartial jurors. According to the judge, [i]t stretches the imagination to suggest that an impartial jury cannot be successfully selected from this large pool of potential jurors.
The judge also questioned the evidence put forward by the defendant to support a change of venue motion. In his decision the judge noted that
[t]he defendant relies almost exclusively on a telephonic poll and an analysis of newspaper articles to support his argument that venue must be transferred due to the impact of pretrial publicity. I have reviewed the materials submitted. For substantially the same reasons articulated in the government’s sur-reply, those results do not persuasively show that the media coverage has contained blatantly prejudicial information that prospective jurors could not reasonably be expected to cabin or ignore.
Most of us are aware of social media's influence on petit jurors. Who hasn't heard about attorneys using social media to investigate jurors or jurors using social media to contact each other or third parties? What is less known is the influence of social media on grand jurors. This is due primarily to the fact that grand jurors are sworn to secrecy. Thus, little is known about what happens once those grand jury doors are closed.
Well, it appears everything that occurs in the grand jury room does not necessarily stay in the grand jury room. There are media reports that one grand juror leaked information about the current Ferguson, Missouri investigation. This leaked information (not enough evidence to indict the police officer) was subsequently tweeted before being taken down. However, we all know that once something is put out on social media it is next to impossible to complete remove it.
The article below and the study it cites makes a strong argument for allowing non-citizen jurors. According to the article, in criminal proceedings, non-citizens face higher sentences than those who are citizens. The article goes on to say that undocumented non-citizens fared even worse. This article and the study give support to the bill that Governor Brown vetoed last year which would have allowed non-citizens, who were lawfully in the United States, to serve as jurors.
I would also note that allowing non-citizens to serve is not a new concept. For example, England, for close to 500 years, (the practice was eventually abolished by the Naturalization Act of 1870) permitted the jury de medietate linguae, or “jury of the half tongue.” In a jury de medietate linguae a non-citizen defendant was allowed the right to request that half of the jury consist of non-citizens. The practice which has been used in the United States, although not for quite some time, helps non-citizens receive fair treatment under the law.
You have spent several hours selecting a jury in a civil case. In accordance with the usual Maryland procedure, the jurors were sworn and the trial judge conducted the voir dire, permitting counsel to ask only a few follow-up questions. One question the court asked the potential jurors is whether they ever have been a plaintiff or defendant in a civil or criminal case. Some answer affirmatively and are questioned at the bench. Others remain silent. A jury is selected.
Overnight, you discover that three of the jurors have failed to disclose their prior involvement in litigation. The next morning, you bring this to the attention of the court. Further voir dire is conducted and each of the jurors, after some prodding, admits their litigation histories. One says he didn’t hear the question. One says she thought that since her litigation had been resolved several years ago, there was no need to disclose it. The third provides no excuse. You have already used your peremptory challenges. Accordingly, you now challenge the three jurors for cause. You tell the judge that because neither opening statements nor any evidence have yet been presented, now is the time to replace these jurors.
The article below discusses how the latest 3D laser scanners help Ohio prosecutors bring the crime scene to jurors in the courtroom. According to Bureau of Criminal Investigation Analyst Megan Timlin, “this brings the jury to the crime scene without them having to leave the jury box."
On Oct 10th, IIT Chicago-Kent College of Law will be holding a conference entitled Juries and Lay Participation: American Perspectives and Global Trends.
The one-day conference will feature a series of panel discussions on juror bias, the jury as a political institution, comparative jury practices and innovations, and practitioners' perspectives on judges and jurors. The Honorable James F. Holderman of the U.S. District Court for the Northern District of Illinois (pictured above) will deliver a luncheon keynote address on "Maximizing Jurors' Understanding."
Judge Royce Lamberth has appointed an attorney to look into how two sitting jurors are being treated by their employers. Unfortunately, some employers don't quite understand that you can't retaliate or punish a person for serving as a juror. Fortunately, Judge Lamberth has taken an interest in protecting these jurors. While I have heard of private employers taking action against employees for jury service, this is the first example I am aware of that involved federal employees.