The article below highlights the challenges of keeping jurors sitting on a high profile trial away from outside information about the case. Here, one of the jurors was informed by her husband that a prosecutor in the trial had sent a tweet about the case. This particular juror was dismissed as were two others who socialized with this juror.
This leaves the court with 21 available jurors. Due to the nature of the case, the judge decided to have 12 alternates. At this stage, the 21 jurors do not know which ones will actually decide the case and which ones will be alternates.
Of the many reforms affecting the Japanese judiciary that were undertaken in connection with the recommendations of the Justice System Reform Council, one reform above all attracted widespread public attention: the introduction of the so-called saiban’in system. In this system, mixed panels of professional judges and lay jurors judge guilt and assess penalties in serious criminal cases. Following a five-year preparation period, the new system went into effect for the specified categories of crimes for which indictments were issued on or after May 21, 2009, with the first trials under the new system commencing in August 2009. Pursuant to the enabling legislation, the saiban’in system was subject to review three years after going into effect, and the Supreme Court issued its three-year evaluation in December 2012. While this essay introduces some of the results of that evaluation, the following remarks primarily reflect my own appraisal.
Of course, the saiban’in system is by no means perfect. Many issues warrant consideration. Some issues have become clearer during the four years the system has been in operation; others have become apparent since the system went into effect. To my mind, however, the achievements of the system far outweigh the issues relating to it, and it is on those achievements that I focus in this essay.
This article proposes a theory of “representative deliberation” to describe the democratic ideal that jurors seek to practice. Given its long history, the jury does not fit neatly into any one of the most familiar types of democracy, such as direct democracy, representative democracy, or deliberative democracy. However, the jury does hold together elements of all of these theories. In line with direct democracy, we select jurors from the people-at-large. In line with representative democracy, we seek to draw jurors from a representative cross-section of the community. In line with deliberative democracy, jurors talk as well as vote and seek to change one another’s minds. The resulting hybrid is what this article calls “representative deliberation.” The core idea is that deliberation works best on diverse panels where jurors from different backgrounds bring different views and life experiences to bear on the impartial consideration of the evidence. The article reviews empirical studies supporting the theory of representative deliberation and proposes changes in jury selection to remove obstacles to empaneling representative juries.
SCT Grants Cert. in Another Batson Case: Foster v. Humphrey
The issue in Foster v. Humphrey, a death penalty case involving a Black defendant, a White victim and an all-White jury is whether the Georgia courts erred in failing to recognize race discrimination under Batson v. Kentucky in the extraordinary circumstances of this death penalty case. The case will be argued in the fall.
The facts here seem to favor Foster; however, one can never be sure with these cases.
--Prosecutors highlighted the name of each prospective Black juror in green (see above)
--Black jurors referenced as "B#1," "B#2," and "B#3"
--Prosecutor's investigator ranked each Black juror against the other Black jurors
--All Black jurors were struck by the prosecution
--Prosecutor at the close of trial requested a death verdict from the jury to “deter other people out there in the projects."
by Chris Dominic, Jeffrey Jarman, and Jonathan Lytle--all of Tsongas Consulting. Many of us have had spirited discussions about how the angle of the camera in deposition affects the impression of witness credibility. We all have strong ideas and sound reasons behind those ideas. These authors had the same sort of discussions but actually did research on it so you could benefit from this knowledge as well.
by Aner Tal from Cornell with responses from visual evidence specialists Jason Barnes and Karyn Taylor. Ever wonder just how much difference there is in how persuasive charts and graphs are in the courtroom? This researcher looked at whether a simple (very simple) graph with no bells and whistles would be more persuasive to triers of fact. You will find the results odd and somewhat unsettling. Jason Barnes and Karyn Taylor respond with their perspective on making visual evidence compelling.
by Steven Perkel and Benjamin Perkel, both of Perkel and Associates. The question of plain language jury instructions has been around for a while but we wanted to bring you the most recent findings and thoughts on making jury instructions easier for jurors to understand and interpret.
The terms “soft science” and “hard science” are commonly applied to different scientific disciplines, and scientists have investigated and theorized about features that apply when placing scientific disciplines on a soft-hard continuum (e.g., Simonton, 2004, 2006, 2009). In the minds of laypeople, however, the difference may lie in the more simple perceptions of different scientific disciplines. The very words themselves, “soft” and “hard”, may hint at different reputations. Soft sciences are fuzzy and less rigid, suggesting lower reliability, validity, and rigor than hard sciences possess.
by Roy Futterman of DOAR. Jury selection is a strategic activity that requires you to imagine how the other side will react. This author suggests you take that imagination a step further by behaving strategically to get opposing counsel to strike jurors you want them to strike--effectively giving you twice the number of strikes when you are successful. How could you not read this one?!
by Doug Keene and Rita Handrich, both of Keene Trial Consulting. Recently we were asked to do some research on whether jurors of different generations responded to case themes differently. In preparation for this, we updated our awareness of the generational research completed in the past few years. This article summarizes what we learned about the "real" (as opposed to anecdotal) differences between generations and how you can use a sensible approach to management in your own multigenerational office.
Every year we have been giving you a list of the top ten articles on The Jury Expert's website for the past year. We thought we would also show you our top ten most highly trafficked articles since we began to publish online. It's an interesting list with some of what readers say is our best work. Don't miss it!
Here at the American Society of Trial Consultants, we think of Ron Matlon as a force of nature. Ron was our first society President, a founding member of the organization, and has served as our Executive Director for 34 years. We are fortunate to have benefitted from Ron's dedication and leadership for such a long time and will miss him greatly. We hope you enjoy this issue and that as you read it, you will thank Ron Matlon for his support and guidance in this publication.
In E (CA799/2012) v R  NZCA 678 the Court of Appeal directly confronted the issue of whether demeanour warnings should be required in all criminal jury trials. Such a warning would alert a juryto the risks of using demeanour to assess credibility. While science has shown that demeanour is an unreliable tool for assessing credibility, the Court decided that a demeanour warning was not always required. As such, the law appears to be out of step with contemporary science. This article contrasts the traditional approach to the usefulness of demeanour evidence in criminal jury trials with a more modern understanding of its actual usefulness. Drawing on both social science and case authorities, this paper will critically evaluate the Court’s approach to this issue. The conclusion is reached that a demeanour warning actually should be mandatory in all criminal jury trials.
Well, in the Southern District of Florida the criminal conviction is still upheld.
In U.S. v. Livoti, a juror named J.D. responded to a jury summons to sit on the criminal trial of Anthony Livoti. After being selected, J.D., along with eleven other jurors, found Livoti guilty of fraud related charges and he was subsequently sentenced to 10 years imprisonment and ordered to pay $827 million. Livoti had been involved in a massive insurance investment scam.
It was later revealed that the summons sent to J.D. was actually for his father who lived with him and shared the same first and last name. The defendant attempted to use this fact as grounds for a new trial. However, the trial judge denied the defendant's request finding that "[t]here is no indication that this incident was anything other than an honest mistake on the son, J.D.’s part. And Livoti introduces no evidence that shows that J.D. was motivated by actual bias."
Presumed Fair? Voir Dire on the Fundamentals of Our Criminal Justice System
The American criminal justice system is built on three bedrock principles: the presumption of innocence, the burden of proof, and the standard of proof beyond a reasonable doubt. These ideals, however, are frequently ignored by jurors. Social science research has shown that jurors routinely believe that a defendant must prove his innocence, and that the mere fact that the defendant is standing trial is proof of guilt. Jurors persist in these beliefs despite proper instructions on the law.
Despite the acknowledged centrality of these legal ideals, trial courts in many jurisdictions, routinely prevent defense attorneys from questioning prospective jurors on these fundamental legal issues based on a mistaken view that jurors will follow the given instructions. Unlike instructions, voir dire regarding prospective jurors’ ability or willingness to apply the presumption of innocence and hold the government to its burden of proof beyond a reasonable doubt is not granted uniformly across jurisdictions. While the Supreme Court has sanctioned voir dire in capital cases on whether jurors can impose the death penalty, it has thus far remained silent on whether there is a right under the Due Process Clause to question prospective jurors on the presumption of innocence and the government’s burden of proof of beyond a reasonable doubt. The states and federal circuits are split on the question.
This Article explores whether, in order to ensure fundamental principles of fairness, voir dire questions about the presumption of innocence and the burden of proof should be required in all criminal jury trials.