Abstract: Early in this nation’s history, the civil jury was the most important institutional check on biased and corrupt judges. Recently, concerns about judicial bias, especially in elected state judiciaries, have intensified as new studies demonstrate the extent of that bias. But the jury of Hamilton, Madison, and Jefferson is nowhere to be found. In fact, the civil jury is virtually dead. It is used in less than 1% of all civil cases, and even when it makes a rare appearance, the jury’s powers have been significantly curtailed.
This article argues that we must reimagine the civil jury to match the framework of modern civil litigation and modern civil procedure. Civil litigation in the 21st century revolves around pre-trial practice, including the motion to dismiss and the motion for summary judgment. Today, judges alone decide those dispositive motions. And when the judges deciding these motions are biased, the jury is conspicuously absent. I propose that jurors serve alongside judges to decide fact-intensive dispositive motions on what I call Hybrid Judicial Panels. This proposal restores the jury’s historical power to control biased judges, and offers the people themselves a renewed role in modern civil litigation.
The answer to that question appears to be "yes" at least in Michigan. I say appears because an appellate court this month, in People v. Gary Traver, overturned a defendant's firearm convictions because the judge not only gave improper instructions on the offenses, but also failed to read the instructions to the jury. Instead, the judge merely handed the instructions to the jurors. While it is not certain that the appellate court would have overturned the defendant's conviction only because the judge failed to read the instructions, it is clear that the appellate court believes that reciting the instructions to the jury is critical. According to the appellate court,
[t]here are important reasons that in the English and American legal traditions, jury instructions are always spoken. “Reading a complete set of instructions after the evidence ensures that the jury hears and considers all applicable law before deliberations.” State v Nelson, 1998 SD 124; 587 NW2d 439, 444 (1998). “Instruction of the jury is one of the most fundamental duties of the court and it is only through their oral delivery that the court can be assured that the jury has actually received all of the instructions.” State v Norris, 10 Kan App 2d 397, 401; 699 P2d 585 (1985).
We hope you can join us on Friday, September 30th, in NYC for a conference bringing together distinguished federal jurists, academics, and practitioners to discuss current issues and trends in how patent jury trials are conducted. The conference, which is hosted by the Civil Jury Project and the Engelberg Center on Innovation Law & Policy at NYU School of Law, is free, including continental breakfast and lunch.
The Australian state of Victoria has, over the past thirty years, introduced and made numerous reforms to a set of jury directions which purport to address concerns that rape trials do not adequately respond to the reality of sexual offending in the community. In this article we argue that the theatrical nature of the trial process, in combination with a set of problematic assumptions which preclude the capacity for women to “consent” or “refuse consent”, result in the reassertion of traditional rape narratives that the jury directions alone are not adequate to shift.
Here is a news article talking about a class action lawsuit challenging juror pay. According to the article,
King County pays the minimum -- $10 per day -- a figure that hasn't changed since 1959, when $10 had the modern-day buying power of $82.56.
Compare that to a minimum-wage worker in Seattle making $104 in an eight-hour day or $75.76 statewide, according to the state Labor and Industries department.
That, according to the complaint, eliminates potential jurors who aren't paid by their employers for jury leave, disproportionately affecting lower-income residents and people of color. Those people often seek economic hardship exemptions when they receive a jury summons.
Below is an excerpt from Rauf v. Delaware which struck down the state's death penalty statute.
In this case, we are asked to address important questions regarding the constitutionality of our state‘s death penalty statute. The Superior Court believed that Hurst reflected an evolution of the law that raised serious questions about the continuing validity of Delaware‘s death penalty statute. Specifically, Hurst prompted the question of whether our death penalty statute sufficiently respects a defendant‘s Sixth Amendment right to trial by jury.
Because answering the certified questions requires us to interpret not simply the Sixth Amendment itself, but the complex body of case law interpreting it, we have a diversity of views on exactly why the answers to the questions are what we have found them to be. But that diversity of views is outweighed by the majority‘s collective view that Delaware‘s current death penalty statute violates the Sixth Amendment role of the jury as set forth in Hurst. We also have a shared belief that the importance of the subject to our state and our fellow citizens, reflected in the excellent briefs and arguments of the parties, makes it useful for all the Justices to bring our various perspectives to bear on these difficult questions.
The Constitution protects us from criminal conviction unless the state can prove guilt beyond a reasonable doubt. However, many of our nation’s trial courts will conclude their burden of proof instructions by telling jurors not to evaluate the evidence for doubt, but instead “to search for the truth” of what they think really happened.
In our previously published study, we empirically demonstrated that such truth-related language lowers the state’s burden of proof below the constitutionally-guaranteed reasonable doubt standard. In this article, we discuss the results of our new empirical study — a conceptual replication and extension of our previous work.
In our new study, we again found a statistically significant difference in conviction rates between mock jurors who were properly instructed on reasonable doubt, and mock jurors who were instead instructed “to search for the truth.” Additionally, we identified a cognitive link between the truth-related jury instruction and the increased conviction rate.
More specifically, mock jurors who were instructed “to search for the truth” were nearly twice as likely to mistakenly believe they could convict the defendant even if they had a reasonable doubt about his guilt. Further, mock jurors who held this mistaken belief actually voted to convict the defendant at a rate 2.5 times higher than those who correctly understood the burden of proof.
Our original study, our successful replication, and our newly discovered cognitive explanation for juror behavior combine to provide powerful evidence that truth-related language diminishes the constitutionally-mandated burden of proof. Therefore, in order to protect our Due Process rights, courts should immediately remove such truth-related language from their burden of proof jury instructions