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NPR.com: Former Presidents: They're Just Like Us! Obama Summoned For Jury Duty
4 Questions
(1) Will he be selected?
(2) Will he be the foreperson?
(3) Will the secret service be in the courtroom and or jury room?
(4) Can you sequester a former president?
Can Physically Restraining a Defendant Affect the Jury’s Decision?
In the U.S., most jurisdictions go to great lengths to mask the fact a defendant may be in custody from the jury. However, that is not the case in many countries that do criminal jury trials. Defendants may be required to sit in a “dock,” an area that may be enclosed by glass or metal. Although this approach minimizes security concerns, recent research by Meredith Rossner, et. al. suggests that jurors are subconsciously influenced by this social cue of dangerousness, and this has an impact on verdicts. Sociology Lens published a story on October 23, 2017, titled The Dock on Trial: Courtroom Design and the Presumption of Innocence which describes the results of the research.
Cloud Based Jury Management Systems
A jury manager and regular reader of the Jur-E Bulletin would like to speak to jury managers that use cloud based jury management systems. Specifically, he would like to discuss any security issues and how those issues are managed. Additionally, he is interested in continuity of operations issues and any backup systems should there be an internet outage. If you have appropriate information and would be willing to speak to this person, please send an email to Greg Hurley at ghurley@ncsc.org. Your email will be forwarded.
The Status of Jury Trials in Russia
Retired Russian Judge Sergei Pashin who played a major role in the introduction of trial by jury in Russia in the 1990s, wrote a piece for Izvestiya on October 12, 2017. An excerpt of it is available in English online. His evaluation of the current use of jury trials in the country is not positive. For example, he states:
Sadly, reforms traditionally go hand to hand with counter-reforms in Russia. The fate of jury trials depends on ill-disposed officials who have lost their understanding of this institution. Having received instructions from the president to expand the institution of jury trials, they have already tried to carry out a silent constitutional coup by abolishing it: they planned to replace jury trials where ordinary people independently make a decision with a court where they confer under the guidance of judges – as in Ukraine and Germany. In the heat of the moment, the right to trial by jury has been taken away from women and elderly men.
Impeachment of a Verdict Based on a Juror’s Unwillingness to Deliberate
The Court of Appeal of the State of California, Second Appellate District, Division Five rendered an opinion in Cornavaca v. Horwedel on October 24, 2017. Mr. Horwedel was driving when he stuck and killed Mr. Cornavaca. This is a civil case and the cause of action is wrongful death. The jury reached a verdict for the defendant which would have gone the other way had one juror voted differently.
The testimony indicated that the decedent had alcohol and marijuana in his system. Following a verdict, the plaintiff filed a motion for a new trial which contained an affidavit from Juror Maccarone. Maccarone claimed the following:
“Juror . . . Goldarreh stated that as soon as she heard evidence that alcohol and marijuana were found in the Decedent’s system she made up her mind that she would not award anything to the Plaintiffs. [Juror] Goldarreh did not participate in deliberations and simply stated that she would vote for whatever gave the Plaintiffs zero recovery.”
The appeals court first had to determine whether the statements made by Juror Maccarone were admissible and they determined that pursuant to the California Evidence Code they were admissible. (Most states utilize a rule of evidence patterned after Federal Rule of Evidence 606(b) that would have prohibited Juror Maccarone from providing evidence to impeach the verdict in this situation.) The appeals court next had to determine if Juror Goldarreh’s failure to engage in deliberations was juror misconduct. They found that the statement made by Juror Galdarreh amounted to a prima facie showing that she had bias against the plaintiff/decedent and her action of refusing to deliberate confirmed that she was in fact biased. They therefor found that Juror Galdarreh had committed misconduct. They determined that there was a reasonable probability that the juror misconduct impacted the verdict because if one vote had gone the other direction, the verdict would have been for the plaintiff. Therefore, the Court of Appeal of the State of California, Second Appellate District, Division Five reversed the case and remanded it for a new trial.
This case is interesting because it depicts a different approach to balancing the societal need for finality in jury verdicts against the need for courts to ensure fundamentally fair outcomes.
Jury Improvement Lunches
Over the next two months the Civil Jury Project at NYU School of Law plans to hold a number of “Jury Improvement Lunches” around the country. The purpose of these lunches is to thank jurors for their service and to learn from them how we can improve jury trials. Lawyers, judges and jurors will be at each of the lunch tables to provoke discussion, and the most articulate jurors will be asked to participate on a panel discussion at the end of the lunch. Videos of past lunches are available online, such as one from Dallas last year: http://civiljuryproject.law.nyu.edu/dallas-jury-improvement-lunch/.
All lunches will start promptly at 12:00 and end by 1:30pm. Upcoming lunches include:
10/25 Boston, MA: Boston Bar Association on 16 Beacon Street, Boston MA 02018
11/1 Kansas City, MI: Charles Evans Whittaker Courthouse, 400 9th Street, Kansas City, MO 64106
11/2 Denver, CO: Ritz-Carlton, 1881 Curtis Street, Denver, CO 80202
11/9 Baltimore, MD: Hotel Indigo Baltimore Downtown, 24 W Franklin St, Baltimore, MD 21201
11/16 Cleveland, OH: Hilton Cleveland Downtown, 100 Lakeside Ave E, Cleveland, OH 44114
11/20 Oklahoma City, OK:Sheraton Oklahoma City Downtown, 1 N Broadway Ave, Oklahoma City, OK 73102
1/16 New York, NY: New York University School of Law, 40 Washington Square S, New York, NY 10012
For more informatioin, contact Richard Jolly at rljolly@nyu.edu .
Read about the latest software program created to help attorneys learn more about jurors.
Voltaire’s software can search through billions of data points, including public records and social media posts, and—within a matter of minutes—pull up all kinds of information on prospective jurors. The software, which is powered by IBM Watson, also uses deep psycholinguistic and behavioral analysis to discover the biases and views of prospective jurors and to deliver real-time predictions on how they might vote...
ABAJournal.com: Software provides real-time predictions on how potential jurors might vote
Nursing Mother Effectively Excluded from Jury Service
Judith P. Miller is an assistant clinical professor of law at the University of Chicago Law School and wrote a commentary that was published in the Chicago Tribune on October 13, 2017. She was summoned for jury service and was excited to finally participate as a juror. As a lactating mother, she needed time and an appropriate space to express milk with a breast pump. The website at the Daley Center in Chicago indicated that they had a room for lactation. However, when she arrived for service she was confronted with a series of obstacles, including what she refers to as “the mythical lactation room.” As a result of these obstacles, she indicates that she was excluded from jury service.
Luxury Portable Bathrooms
The Houston Press reported on October 16, 2017 that Harris County, Texas has begun doing jury trials again following Hurricane Harvey’s destruction of their underground juror assembly room. The system is now using an alternative location as a juror assembly room and has been making other accommodations so jury trials can resume. However, there was one thorny problem, there just weren’t enough bathrooms in the building to accommodate the increased demand. The solution was to bring in portable restrooms. “These aren't your county-fair port-a-potties, but have full running water and six bathroom stalls inside two trailers,” said Harris County District Clerk Chris Daniel.
Ensuring Jurors Understand the Gravity of a Capital Case Determination
On October 16, 2017, the U.S. Supreme Court denied certiorari in the consolidated cases of Florida v. Quentin Marcus Truehill and Florida v. Terence Oliver. Justice Sotomayor wrote the following dissent, with whom Justice Ginsburg and Justice Breyer joined:
At least twice now, capital defendants in Florida have raised an important Eighth Amendment challenge to their death sentences that the Florida Supreme Court has failed to address. Specifically, those capital defendants, petitioners here, argue that the jury instructions in their cases impermissibly diminished the jurors' sense of responsibility as to the ultimate determination of death by repeatedly emphasizing that their verdict was merely advisory. “This Court has always premised its capital punishment decisions on the assumption that a capital sentencing jury recognizes the gravity of its task,” and we have thus found unconstitutional under the Eighth Amendment comments that “minimize the jury's sense of responsibility for determining the appropriateness of death.” Caldwell v. Mississippi, 472 U.S. 320, 341, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985).
It is an interesting dissent and important to note as this issue could be revisited at some point in the future.
More Courtroom Drama…
The New York Post reported on October 18, 2017 that a stunt by defendant Travis Boys caused an abrupt halt to voir dire in his Louisiana trial. Mr. Boys is charged with killing a police officer. At some point during the jury selection process, he reached into his pants and then began rubbing feces on his head and face. Judge Karen Herman dismissed the jury and ordered a competency evaluation.
Hypothetical #2
This is the second hypothetical and is largely written for the Jur-E Bulletin’s readers who are law students. However, others may find it interesting to ponder.
In a felony possession with intent to deliver trial, the jury is sent to deliberate and they have all of the admitted evidence in their possession. Unable to reach a verdict at the end of the day, they are sent home and instructed to return in the morning. The bailiff then enters the deliberations room to secure the evidence for the night and notices a formerly sealed bag with oxycodone tablets is open. He immediately alerts the trial judge. They quickly count the pills, there are now 20 while both of them recall from the testimony of a police officer and a forensic chemist that the count was 30.
What should the trial judge do? What should the prosecutor and defense counsel do?
Judith Miller, a University of Chicago law professor and would be juror, shares her challenges with trying to pull jury duty while simultaneously nursing a child. In the end, she couldn't do both.
ABAJournal.com: Law prof who hoped to be a juror learns it is 'basically impossible' for a nursing mother
Washington University professor Daniel Epps has an article in the Washington Post in which he discusses why some police officers favor going before judges (bench trial) rather than jurors when facing criminal charges. One interesting question that the author raises is whether defendants should have a right to a bench trial. While defendants facing jail have a constitutional right to a jury trial, they don't have a constitutional right to a bench trial. In fact, some jurisdictions only grant defendants bench trials if the prosecution is in agreement.
A Comparison of Evidence Based Medicine and the Criminal Justice System
Valerie Coppenrath, PharmD of the Massachusetts College of Pharmacy and Health Sciences, published an article recently in Innovations in Pharmacy titled Reflections from the Jury Box: Improving Evidence Based Practice through a Comparison with Our Legal System. She was summoned to jury service and heard a credit card fraud case. As a result of this experience, her article describes the parallels between “evidence based medicine” and the criminal justice system including jury trials. She explains how physicians often use a clinical evaluation format called “PICO” (Population, Intervention, Comparator, Outcome) to evaluate a case and decide on a course of treatment. This system is very similar to the criminal justice system's process of charging and resolving cases. The author makes the argument that physicians may provide better service to their patients by thinking of them as jurors and providing them with all of the evidence, then allowing them to decide on their course of treatment. This article is interesting and written in a way that legal professionals can understand.
The ADA and Jurors
The NCSC is working on a booklet that will address the Americans with Disabilities Act and its application to jurors. A component of this project will look at assistive devices and other reasonable accommodations that courts are actually using to accommodate people with qualifying disabilities. Your editor would like to briefly interview (no more than 30 minutes) jury managers or court staff who are familiar with the practical solutions to providing accommodations, collect anecdotal stories of successes/failures and get a better sense of the prevalence of accommodation requests. If you would be willing to participate, please send an email to Greg Hurley at ghurley@ncsc.org . Ideally, we want to interview courts that are small, medium and large and come from a variety of states. We will mask your name and the name of your court in the final report if requested to do so.
Hearing Impaired Juror Requests an Accommodation Late
The Court of Appeal, Third District of California rendered an opinion in People v. Jason Lee Rush on September 29, 2017. The defendant was tried by a jury and convicted of various counts of child molestation. One of his appeal issues was whether the trial court improperly discharged a hearing-impaired juror in violation of defendant's constitutional rights.
During voir dire it became obvious that Juror No. 11 was having difficulty hearing. He was reseated in a closer location to the witness stand. The trial judge instructed him to immediately raise his hand if he again had difficulty hearing. Although not all of this was on the record, it was uncontested that Juror No. 11 used hearing aids and he was offered a hearing assistive device which he initially declined. Early in the trial, it became clear that he was still not hearing everything and he acknowledged that fact. At that point, the prosecution moved to remove him for cause. The trial judge stated:
I'm going to grant the motion here. This lady [testifying witness] actually is a pretty good speaking witness particularly for a child. The difficulty -- and he has missed some of that. There are two difficulties here. One, I admonished him and he assured me during the jury selection process if he missed anything, he would bring it to my attention immediately. Well, he didn't. He only brought it to the attention when the Court voir dired on its own viewing some, what I thought was strange behavior, which I noticed honestly when I was reading the pre-instructions because I try to sustain the best eye contact I can. And then he said he missed as much as two or three words on two or three occasions, although, he understood the flow it or the substance of it. Well, this case because of the mental states and the conduct involved particularly as it goes to the allegations in Count Three, you need to hear it all. And if you can't hear it, you need to bring it to the Court's attention. And he hasn't brought that failing to the Court's attention. He's obviously missed something already, and the predicament is you can't even ask him what he missed because he doesn't know. It is too late. It is done, and we're not going to redo this minor's testimony. So there is good cause here to excuse this gentleman.
The defense attorney objected and asked that Juror No. 11 be offered a hearing assistive device again. The trial judge refused because in the court’s opinion the devices don’t work well with people who use hearing aids. Upon learning that he was being removed for cause, Juror No. 11 asked to try the hearing assistive device. The trial judge declined and released the juror.
The Court of Appeal, Third District of California sustained the verdicts. They reasoned that the trial court’s primary reason for removing Juror No. 11 was that the juror failed to follow the court’s instruction and promptly notify the trial judge that he was having difficulty hearing. Jurors are required by law to follow the instructions of the court and failing to do this is grounds for dismissal.
Oakland County, MI is Now High Tech
The Oakland Press reported on October 2, 2017 that Oakland County, Michigan residents will now be able to respond juror questionnaires online. They will also be able to print attendance letters and make requests for excusals/deferrals online. Additionally, they can now opt-in to receive alerts about their jury service via email, text or by automated phone call. The upgrades are expected to save taxpayer money.
This amicus brief to the Eleventh Circuit, filed in an employment discrimination case, argues that the issue of whether summary judgment is unconstitutional has not been decided, argues summary judgment is unconstitutional under the Seventh Amendment, and argues that the reasonable jury standard underlying summary judgment is unconstitutional.
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