Juries

Juror Removed for Wearing Confederate Symbol Clothing

In a growing trend, courts in the South are taking steps to remove confederate symbols from the courthouse.  Last year, a Tennessee appellate court overturned an African-American's criminal convictions because the jury that found him guilty deliberated in a room with confederate memorabilia.  This week a South Carolina juror was dismissed from an ongoing trial after appearing in court wearing a jean jacket with a confederate emblem. 

heraldonline.com: Juror wearing Confederate flag clothing dismissed from York, SC trial, officials say

The Original Criminal Jury

Jeff Hetzel

Abstract

In early America, the criminal jury decided matters of law. The prosecutor and defense counsel read aloud to the jury from statutes, precedent, and treatises. The presiding judge instructed the jury that it had the power to decide matters of law. Then, the jury deliberated and rendered a verdict based on, among other things, its independent judgment about matters of law, whether that meant the common law, statutes, or the Constitution.

The legal world has for generations failed to recognize the power of the original criminal jury. Those who have not ignored the evidence of the jury’s power over matters of law have tended to interpret it as an early form of jury nullification, by which the jury could review the morality of the prosecution. But a careful examination of early practice reveals that the jury held no more power to nullify than it does today. Rather, the early American jury held the power to do what judges today are expected do—to decide what the law means without deciding its morality.

Can I Skip Jury Duty Because of Covid Fears?

The Ethicist in the NY Times Magazine discusses whether you can avoid jury duty because of Covid?

 

The Resilience of Substantive Rights and the False Hope of Procedural Rights: The Case of the Second Amendment and the Seventh Amendment

Renee Lettow Lerner

Abstract

At first glance, there seem to be strong affinities between the Second Amendment and the Seventh Amendment. Both the right to keep and bear arms and the right to civil jury trial potentially empower ordinary citizens. Both could check elites.

But there are crucial differences between these rights. I focus on two of them here. The first is relatively straightforward; it concerns individual accountability—or the lack thereof—and the ability to understand responsibilities. Gun owners and users generally have individual responsibility for their actions, and the ability to understand their responsibilities. In contrast, by design civil jurors lack individual responsibility. And they often have difficulty understanding judicial instructions and complicated scientific or mathematical evidence.

Second, and more broadly, there are important differences between substantive and procedural rights. Substantive rights such as the Second Amendment have a core that can be interpreted and protected, regardless of the type of legal system. But specific procedural rights such as the Seventh Amendment are wholly dependent on the surrounding procedural system for their significance. Changes in the rest of the procedural system can easily subvert a specific procedural right, as we have seen with both criminal jury trials and civil jury trials. Substantive rights are potentially resilient; specific procedural rights are inherently fragile. Unfortunately, procedural rights, even when they have become almost obsolete, can thwart efforts to develop a more accurate and efficient method of adjudication.

Breastfeeding and Jury Duty

Approximately 20 states provide women an exemption from jury duty while breastfeeding. Indiana, however, is not one of them and this is a problem for State Rep. Ann Vermilion (R-Marion).  She recently saw a story about an Indiana mom who received a jury summons.  The woman in question informed the court that this would be a hardship because she was breastfeeding.  The court clerk who answered the phone said she still had to come to court and plead her hardship.  After doing her own legal research, the mother informed the judge that she would answer the summons with child in tow and the court had to provide her reasonable accommodations.  The judge then subsequently excused her over the phone.  

Rep. Vermilion plans to introduce legislation in Indiana that will make these mothers exempt from jury duty which raises any interesting legal and public policy question. Who should be exempted from jury duty and should society ever allow any exemption that targets individuals based on a physical characteristic trait?  Isn't the better solution to ensure that they have the proper accommodations while breastfeeding rather than a blanket exemption.  Would you want these women exempted from your client's trial? 

To read more about this story go here.

Neuroscience and the Active Jury

Steven Friedland

Abstract

In 1990, the Northwestern University Law Review published The Competency and Responsibility of Jurors in Deciding Cases, 85 Nw. U. L. Rev.190 (1990). The Article conceptualized the jury “as a democratic representative of the community through its verdicts” and argued that because of this democratic role, it should be equipped for success. The Article suggested that a modern active jury model, where jurors under the proper circumstances should be permitted to take notes and ask questions, was preferable to the traditional passive model, particularly when both a cross-section of the community and verdict accuracy were desired jury parameters. That is because there is a natural conflict between the accuracy and cross-section objectives. If the cross-section of the community means jurors would be drawn from all persons in the community, the result would be to attract average citizens who may or may not have solid educational skills. Consequently, the accuracy goal would be easily marginalized, especially under a passive jury model where jurors are expected to remember evidence and arguments up to weeks—even months—at a time before they can discuss it. The argument in favor of the active jury suggested that it provided a way to improve jury efficiency and accuracy.

How have those arguments of 1990 weathered the storms of intervening decades? Fairly well, I think. This short Essay doubles down on these claims, arguing that neuroscience discoveries have shown that active, engaged thinkers have better retention and recall and therefore will be better jurors overall. The Essay makes four points about how advancing neuroscience, especially in the digital age, supports active jury functioning.

Appellate Courts and Civil Juries

Adam Steinman

Abstract

In federal civil litigation, decisionmaking power is shared by juries, trial courts, and appellate courts. This article examines an unresolved tension in the different doctrines that allocate authority among these institutions, which has led to confusion regarding the relationship between appellate courts and civil juries. At base, the current uncertainty stems from a longstanding lack of clarity regarding the distinction between matters of law and matters of fact. The high-stakes Oracle-Google litigation - which is now before the Supreme Court - exemplifies this. In that case, the Federal Circuit reasoned that an appellate court may assert de novo review over a jury's verdict simply by characterizing a particular issue as legal rather than factual. But this approach misperceives the approach demanded by Rule 50 of the Federal Rules of Civil Procedure, which permits judicial override of a jury's verdict only when "a reasonable jury would not have a legally sufficient evidentiary basis" to reach such a verdict.

Rule 50's reasonable-jury standard does not permit de novo review of a jury's verdict on a particular issue. Rather, it requires deference to the jury's conclusion on that issue unless the reviewing court can explain why principles of substantive law or other aspects of the trial record render that verdict unreasonable. This deferential standard of review faithfully implements the text and structure of the Federal Rules and respects the jury's role in our federal system. Yet it also preserves appellate courts' ability to provide meaningful clarification that will guide future decisionmakers.

Keeping Your Client In or Outside the Courtroom During Voir Dire

Christina Marinakis

Arguments can be made either for or against having your client in the courtroom during voir dire.  This article, using the Harvey Weinstein case as backdrop, recommends that your client should not be present.  In the article, the author argues, correctly in my opinion, that jurors will be more forthcoming about bias outside the presence of the defendant.

Law360.com: Keep Your Client Out Of The Courtroom During Voir Dire

Tasmania Law Reform Institute Seeks Input on Jurors Using Technology

A current concern in Tasmania and elsewhere is how to preserve an accused’s right to a fair trial at a time when social media and other internet platforms are omnipresent in our everyday lives. The majority of Australians are continuously online and engaged; at home, at work and in-between on our smartphones. If individuals continue this behaviour when they are jurors sitting in a criminal trial they thereby risk adversely affecting the accused’s right to a fair trial.

The Tasmania Law Reform Institute is currently researching jurors’ use of social media and other internet platforms during criminal trials. Jemma Holt, Research Fellow at the Institute, has authored the Issues Paper on this topic.

The Institute is seeking to:

• assess, as far as is possible, the nature and gravity of this phenomenon;

• explore how and why juror misconduct of this kind occurs and the causes and/or motivations that underlie juror misconduct of this kind;

• canvass the laws and practices which currently exist to safeguard against juror misconduct of this kind as well as those that exist to remedy and/or otherwise deal with such misconduct after it occurs; and

• examine the operation and efficacy of these measures as well as the possible alternatives.

This Issues Paper seeks to elicit open discussion on juror misconduct in this contemporary context to inform the Institute’s inquiries into this area of topical concern.

The Issues Paper, including an easy-read version, can be found here: http://www.utas.edu.au/law-reform/publications/ongoing-law-reform-projects2. A submission template is also available on the site, to facilitate feedback.

The Institute invites submissions on this topic until 4 October 2019.

All submissions will inform the Institute’s Final Report which will ultimately consider whether reform of the current laws and practices is justified and, if so, what form that should take. The Institute will deliver a Final Report to the Attorney-General in early 2020.

This project was funded by a grant from the Law Foundation of Tasmania.  In particular, the Institute acknowledges the contribution to the project by Dr David Plater of the South Australia Law Reform Institute.

For further information, please contact the TLRI on (03) 6226 2069, or email [email protected]

How much should juries rely on expert testimony?

The Washington Post has an interesting op-ed where leading experts in the field comment on the value or weight juries should place on expert testimony.  Here is a list of those who provided comments.

Simon A. Cole, Department of Criminology, University of California at Irvine; Law & Society; National Registry of Exonerations

 

John Lentini, fire/arson expert

 

Frederic Whitehurst, FBI crime-lab whistleblower; Forensic Justice Project

 

Sandra Guerra Thompson, University of Houston Law School; Houston Forensic Science Center

 

Chris Fabricant, Innocence Project

 

Itiel Dror, University College London; Cognitive Consultants International

 

Jules Epstein, Temple University Beasley School of Law; National Commission on Forensic Science

 

Barbara A. Spellman, University of Virginia Law School

 

Roderick Kennedy, retired judge, New Mexico Court of Appeals

 

Roger Koppl, Forensic and National Security Sciences Institute, Syracuse University

 

Michael Risinger, Seton Hall School of Law; Last Resort Exoneration Project

 

Judy Melinek, forensic pathologist; author of “Working Stiff: Two Years, 262 Bodies, and the Making of a Medical Examiner”

 

Brandon L. Garrett, Duke University School of Law

 

Keith A. Findley, Center for Integrity in Forensic Science; University of Wisconsin Law School

 

WashingtonPost.com: How much should juries rely on expert testimony?