Authored by Doug Keene and Rita Handrich with a response from Paul Begala, this article takes a look at how the country has changed over the past 2 decades and how our old definitions of Democrat or Republican and conservative or liberal are simply no longer useful. What does that mean for voir dire? What should it mean for voir dire? Two very good questions those.
Authored by Ivar Hannikainen, Ryan Miller and Fiery Cushman with responses from Ken Broda-Bahm and Alison Bennett, this article has a lesson for us all. It isn’t what that terrible, awful defendant did that makes me want to punish, it’s how I think I would feel if I did that sort of terrible, horrible awful thing. That’s what makes me want to punish you. It’s an interesting perspective when we consider what makes jurors determine lesser or greater punishment.
Authored by Jillian M. Ware, Jessica L. Jones, and Nick Schweitzer with responses from Ekaterina Pivovarova and Stanley L. Brodsky, Adam Shniderman, and Ron Bullis. Remember how fearful everyone was about the CSI Effect when the research on the ‘pretty pictures’ of neuroimagery came out? In the past few years, several pieces of research have sought to replicate and extend the early findings. These studies, however, failed to find support for the idea that neuroimages unduly influence jurors. This overview catches us up on the literature with provocative ideas as to where neurolaw is now.
Authored by Matthew Groebe, Garold Stasser, and Kevin-Khristián Cosgriff-Hernandez, this paper gives insight into how jurors may be leaning in support of one side or the other at various points during the trial. This is a project completed using data from actual mock trials (and not the ubiquitous undergraduate).
We often have a Favorite Thing in The Jury Expert. A Favorite Thing is something low-cost or free that is just fabulous. This issue, Brian Patterson shares the idea of mind mapping and several ways (both low-tech and high-tech) to make it happen.
Authored by Mykol C. Hamilton, Emily Lindon, Madeline Pitt, and Emily K. Robbins, with responses from Charli Morris and Diane Wiley, this article looks at how to not “prehabilitate” your jurors and offers ideas about alternate ways of asking the question rather than the tired, old “can you be fair and unbiased?”.
Authored by Shelby Forsythe and Monica K. Miller, with a response from Richard Gabriel. This article examines the reactions of research participants to a number of novel defenses (Amnesia, Post-Traumatic Stress Disorder (PTSD), Battered Women Syndrome (BWS), Multiple Personality Disorder (MPD), Post-Partum Depression (PPD), and Gay Panic Defense) and makes recommendations on how (as well as whether or not) to use these defenses.
Authored by David M. Caditz with responses from Roy Futterman and Edward Schwartz. Suppose there was a more predictable, accurate and efficient way of exercising your peremptory strikes? Like using a computer model based on game theory? In this article, a physicist presents his thoughts on making those final decisions more logical and rational and based on the moves opposing counsel is likely to make.
This issue we are all about voir dire (from multiple directions) and presenting your case in court. Political labels, novel defenses, behavioral mimicry, moral reactivity, game theory, neuro-imagery, 'prehabilitation' and more!
The notion that criminal defendants are put to an all-or-nothing choice between the guilty plea and full-blown jury trial is both pervasive and wrong. Defendants can, and sometimes do, “unbundle” their jury-trial rights and trade them piecemeal, consenting to streamlined trial procedures to reduce their sentencing exposure. This Article explores what happens if, once and for all, we eschew the all-or-nothing framework and actually encourage these “unbundled bargains.” The parties could then tailor court procedures by agreement. Defendants, for example, could bargain for sentencing leniency by consenting to a six-person jury. Or the parties could agree to submit a case to private arbitration. Would such a world be better or worse than the one we have now? This Article takes a first cut at this question, making the uneasy case that the benefits of unbundled bargaining plausibly outweigh the costs. To read the entire article go here.
This case arose out of a motor vehicle accident in which a motorcyclists collided with a truck. The motorcyclist-plaintiff lost his leg and then subsequently brought a negligence action against the truck driver. The jury found in favor of the truck driver-defendant
Shortly after the trial, a juror approached plaintiff's counsel and informed him that one juror, the forewoman, refused to decide the case on the evidence submitted. This juror further informed plaintiff's counsel that the forewoman told other jurors during deliberations that her daughter had been at fault in a fatal automobile accident and that had she been sued it would have "ruined her life."
Plaintiff's counsel had the juror complete a sworn affidavit in which he detailed the actions of the forewoman. However, the trial court, citing 606(b), refused to admit the affidavit into evidence. The court of appeals affirmed the trial court's decision.
Generally speaking, FRE 606(b), the juror anti-impeachment rule, prohibits the introduction of evidence concerning juror deliberations. FRE 606(b), is in place to: (1) provide verdict finality; (2) encourage jurors to freely express themselves during deliberations; and (3) reduce the amount of post-trial hounding jurors receive from attorneys. The Courts of Appeal, however, have not been uniform in their application of FRE 606(b) which is why this case has been granted cert. Hopefully, the SCT can provide the lower courts better guidance on the application of FRE 606(b).
To read an earlier post on this case or other briefs go here.
At the root of many contemporary debates and landmark cases in the civil justice system are underlying questions about the role of the civil jury. In prior work, I examined the justifications for the civil jury as a political institution, and found them wanting in our contemporary legal system.
This Article looks closely and critically at the justification for the civil jury as an adjudicative institution and questions the conventional wisdom behind it. The focus is on tort law because the jury has more power to decide questions of law in tort than any other area of law. The Article makes three original contributions.
First, I undermine the claim that the breach question in negligence is inevitably one for the jury by revisiting a famous debate between Cardozo and Holmes about the possibility of judge-made rules around breach in tort. Second, I draw on social and cognitive psychology to question the conventional wisdom that juries applying general standards are ideally suited to identify and apply social norms. And third, I sketch a middle-ground approach on breach, which involves presumptive rules that defer to indicia of social norms such as statutes and regulations, custom, and the market.
In making the argument, this Article begins to point the way towards a tort system that recognizes the value of recourse but better serves rule-of-law values.
Not surprisingly, defense counsel for Dzhokhar Tsarnaev, who is charged with the Boston Marathon bombing, has filed a motion to change the venue for the upcoming death penalty trial. To read the motion go here. To read the government's response go here. Also, last week defense counsel challenged the procedures by which jurors are selected in federal court in Massachusetts. To access that motion go here. Finally, to access the proposed juror questionnaire go here.
The judge presiding over the murder trial of Caius Veiovis has decided to voir dire the jurors on the defendant's physical appearance (to see a picture of the defendant go here). Not surprisingly, there is some concern that the defendant's implanted horns, nose piercing, and 666 tattoo may turn off jurors and prevent them from being impartial. At present, it isn't clear whether the defense attorney plans to use a make-up artist to alter, at least partially, the defendant's appearance prior to trial. In the past, courts have approved and paid for make-up artists for certain criminal defendants who had inflammatory tattoos. I am not sure how much you can do with horns.
According to the Brainerd Dispatch article below, two Minnesota prosecutors have been disciplined for going on Facebook to criticize jurors who acquitted a defendant in a criminal sexual misconduct case. The Facebook comments by the prosecutors have been subsequently removed.
Two assistant Clay County attorneys face disciplinary action after making disparaging comments over Facebook about a jury decision in a sexual assault trial.
Clay County Attorney Brian Melton said Thursday that until the disciplinary action is final, he can’t talk about specific penalties, but he outlined the reasons he took action against Pamela Harris and Jenny Samarzja.
Melton said that several weeks ago he was made aware of comments the lawyers exchanged over Facebook in July after a trial in which Harris was the prosecutor ended in a not guilty verdict.
Melton said Harris posted comments on Facebook to the effect she didn’t think she’d be spending her whole week with “12 idiots.”
Samarzja implied it was not a shining moment for Clay County, according to Melton, and he said she punctuated her comment with, “Wake up people!”
Melton said that when he was alerted about the online comments, he told Harris to remove them and she did.
He said the statements were a violation of the public’s trust, and he apologized on behalf of his office for any offense jurors may have taken.
He said both attorneys are continuing to go about their regular duties.
The NY Times article below highlights how invasive some juror questionnaires can be. Depending on the facts of the case, some jurors have been asked about abortion, adultery, drug use, race and political party affiliation.
Do you believe in an “eye for an eye”? What do your parents do for a living? Do you watch “CSI”? “Dateline”? Read PerezHilton.com? Have you ever undergone a medical procedure that required an anesthetic?
Welcome to jury service, where the seats are hard and the questionnaires increasingly long and nosy.
In a recently concluded federal racketeering trial in Brooklyn, potential jurors were asked what public figures they admired the most and the least. For a political corruption trial, they were asked to list their three favorite movies and what the bumper stickers on their cars said. For a current civil case concerning Israel, they were asked if they had “any feelings about Jews” that would make it difficult for them to serve.
Jury questionnaires have become a familiar presence in courtrooms across the United States, with some lawyers routinely requesting them in major cases — transforming the standard voir dire procedure into a written test.
“You can learn a lot from a questionnaire that you can’t learn in person,” said Daniel Gitner, a defense lawyer in Manhattan, noting that he preferred to use questionnaires. “You want to use a questionnaire anytime you have a real, considered view of what beliefs your jurors are coming to the courtroom with.”
To date, many people have heard stories about jurors improperly using the internet to conduct research or communicate with others. Unfortunately, the stories have become all too common. What most people don't hear about are stories in which individuals use the internet to contact jurors. It doesn't happen often but as the article below illustrates it can occur. What is not clear from the article is how the defendant's girlfriend obtained the name of the juror in order to send a Friend Request.
Pontiac— A 22-year-old Goodrich woman has been jailed and faces contempt of court charges after allegedly contacting a male juror deliberating her boyfriend’s fate in a drug trial and asking him to “friend” her on Facebook.
Brianna Trovato was arrested on a bench warrant Wednesday morning outside Oakland Circuit Court after Judge Martha Anderson was informed by a juror he had received a friend request from Trovato. She had been sitting in court every day during the trial of her boyfriend, Samuel Misko, 23, also of Goodrich, who was convicted Wednesday of six counts of manufacturing with intent to deliver marijuana and six related firearms offenses...