Understanding the law is difficult. Getting juries to understand the law is more difficult. Yet we provide evidence that it can be done, even in complex areas such as antitrust. This Article tests whether jury instructions can be written in a way that maintains fidelity to the law - indeed, improves on fidelity to the law compared to standard jury instructions - while also permitting jurors to understand the relevant legal standards. But it goes further than that. It proposes making empirical testing an integral part of drafting model jury instructions. It also shows that such empirical testing is feasible by harnessing the power of the Internet. It undertakes those efforts by drafting and testing jury instructions in two challenging areas of antitrust law. The results of the empirical testing provide reason for optimism about the prospects of juries understanding the law, if those who draft jury instructions test whether they are comprehensible and modify draft jury instructions in light of empirical results.
In Verlo v. Martinez, the 10th Circuit Court of Appeals upheld an injunction issued by a federal district court that struck down an earlier state court ban prohibiting peaceful pamphleteering in front of a Denver state courthouse. The pamphlets in question informed the public and presumably potential jurors about jury nullification. While the 3-judge panel ultimately held that the district court did not abuse its discretion in issuing a preliminary injunction, the appellate court reserved making a decision on whether a permanent injunction should issue.
The Indiana Supreme Court in Wall v. Indiana has granted a husband and wife, who were both convicted of manslaughter, new trials because an alternate juror participated in deliberations. Apparently, this juror not only participated but also became very involved in the deliberations. According to the state high court,
[e]ven after being informed by other jurors not to participate in the deliberations, the alternate juror
manipulated physical evidence (the working parts of a baby gate) and repeatedly replayed a portion of the DVD that was in evidence, with ever-increasing volume, until all jurors were giving it their attention
Interestingly, not every member of the Indiana Supreme Court thought that the defendants should automatically receive a new trial. At least one dissenting justice argued that the case should be remanded so that the trial judge can poll the jurors to determine the impact of the alternate juror’s misconduct on their respective impartiality.
The SCT has agreed to hear the case of Pena Rodriguez v. Colorado. The issue in Pena Rodriguez is whether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury. This case can best be summed up by the prior Colorado Supreme Court opinionwhich found in favor of the state and affirmed the defendant's conviction. The first two paragraphs of the opinion are excerpted below.
This case involves the interplay between two fundamental tenets of the justice system: protecting the secrecy of jury deliberations and ensuring a defendant’s constitutional right to an impartial jury. After entry of a guilty verdict, defense counsel obtained juror affidavits suggesting that one of the jurors exhibited racial bias against the defendant during deliberations. The trial court refused to consider these affidavits, finding that Colorado Rule of Evidence (“CRE”) 606(b) barred their admission, and the court of appeals affirmed. People v. Pena-Rodriguez, 2012 COA 193, ¶ 3, __ P.3d __. We granted certiorari to consider whether CRE 606(b) applies to such affidavits and, if so, whether the Sixth Amendment nevertheless requires their admission.1
¶2 We hold that the affidavits regarding the juror’s biased statements fall within the broad sweep of CRE 606(b) and that they do not satisfy the rule’s “extraneous prejudicial information” exception. We further hold that the trial court’s application of CRE 606(b) did not violate the defendant’s Sixth Amendment right to an impartial jury. Accordingly, we affirm the judgment of the court of appeals.
The federal judge handling the patent infringement case between Oracle and Google instructed both parties that if they plan to investigate jurors they would have to inform jurors of this fact before the start of the trial. Apparently, this ruling made both sides so uncomfortable that they have decided to forego juror research altogether. To read the judge's order go here.
This Essay analyzes criminalization as an alternative solution to juror misconduct arising from social media use, where jury instructions fail to prevent such misconduct. Despite the lack of scholarship on the subject, criminalization is far from a radical solution California enacted legislation in 2011that sought to criminalize jurors’ improper use of social media. By criminalizing juror misconduct, states can deter misconduct from occurring while also instilling the importance of the jury institution in the public. At the same time, it is important to be cognizant of objections that judges and jurors may raise. This Essay proceeds in three parts. Part I outlines persistent problems that arise from the use of social media as well as several deficiencies of jury instructions. Part II lays out California’s legislative approach, where juror misconduct arising from social media use may be punished as a misdemeanor. Finally, Part III analyzes benefits that arise from criminalization as well as several anticipated objections to the approach.
This Article replies briefly to the robust response that Professor Frank O. Bowman III submitted in answer to my earlier contribution to the Missouri Law Review’s symposium issue concerning events in Ferguson, Missouri. Without denying the technical accuracy of a point Professor Bowman raises concerning grand jury procedures (distinguishing between a “true bill” and a valid indictment), I dispute whether the distinction can support all of the weight placed upon it. I also dispute an empirical claim made by Professor Bowman concerning whether grand jury deliberations in sensational cases boost public confidence in the justice system and whether dispensing with the ritual — only in cases where the prosecutor believes at the close of evidence that no indictment should be brought — would create risks to public safety. Finally, I take a moment to clarify what I did — and what I did not — argue in my earlier Article.
Here is the latest example of a state attempting to improve how grand juries deal with officer-involved shootings. In this case it is Georgia which recently passed HB 941. This new bill, which awaits the governor's signature, makes the following changes:
(1) Limits the presence of law enforcement in the grand jury room
(2) Allows law enforcement to be cross examined by the prosecutor or grand jurors after they testify
(3) Requires the grand jury to issue a public report if it fails to indict
Judge Issues Unique Order Related to Using the Internet to Research Jurors: Oracle v. Google.
Here is a link to the Judge's order. I excerpted the significant portions below. It appears that the judge is giving the parties a choice between either foregoing juror research or explaining to jurors just how they will conduct their research. Apparently, the judge wants to put jurors on notice that the attorneys in the case plan to investigate them online. I think most jurors at this point already know that they will be researched. It has been common practice for employers, colleges and landlords to conduct such research so why would court be any different. However, even with that said, I think putting jurors on notice is a good thing. Among other things, giving jurors this information may reduce instances of misconduct during trial because jurors now know that they are being watched.
To read prior posts about the Oracle v. Google case as it relates to juror research go here.
In the absence of complete agreement on a ban, the following procedure will be used. At the outset of jury selection, each side shall inform the venire of the specific extent to which it (including jury consultants, clients, and other agents) will use Internet searches to investigate and to monitor jurors, including specifically searches on Facebook, LinkedIn, Twitter, and so on, including the extent to which they will log onto their own social media accounts to conduct searches and the extent to which they will perform ongoing searches while the trial is underway.
Counsel shall not explain away their searches on the ground that the other side will do it, so they have to do it too. Nor may counsel intimate to the venire that the Court has allowed such searches and thereby leave the false impression that the judge approves of the intrusion. Counsel may simply explain that they feel obliged to their clients to consider all information available to the public about candidates to serve as jurors. Otherwise, counsel must stick to disclosing the full extent to which they will conduct searches on jurors. By this disclosure, the venire will be informed that the trial teams will soon learn their names and places of residence and will soon discover and review their social media profiles and postings, depending on the social media privacy settings in place. The venire persons will then be given a few minutes to use their mobile devices to adjust their privacy settings, if they wish. The venire persons will also be given the normal admonition that they cannot do any research about the case, the parties, or the lawyers and that they cannot speak to anyone about the case, including by making any social media postings about it. Only the names and places of residence of those called forward to the box shall be provided to counsel (so the identities of venire persons still in the gallery will remain private)