This Article proposes that patent litigation could be greatly improved by trying complex patent cases before specialized juries, composed of individuals who are skilled in the art that the asserted patent pertains to. After explaining why such specialized patent juries would be both beneficial and constitutional, this Article sets forth a concrete proposal for impaneling such specialized juries. Specifically, this Article proposes that the Federal government offer one-year jury commissions to technically-skilled individuals, for a competitive salary. The cost of their salaries would be offset by modest surcharges on patent litigants — yet specialized juries would streamline and simplify patent trials, thus bringing cost savings to litigants that would largely or entirely offset the cost of the surcharges. To test the feasibility of this Article’s proposal, 389 undergraduate and graduate students at sixteen U.S. colleges and universities were surveyed. Each survey respondent was pursuing a degree in one of the two broad areas that spawn much complex patent litigation: computer science/electrical engineering or the life sciences. Over 73% of respondents indicated that they would “seriously consider” a one-year post-graduation term of patent jury service under the terms of this Article’s proposal. These data suggest that it would be feasible for the Federal government to recruit a large cadre of specialized jurors to hear complex patent cases, in accordance with this Article’s proposal.
Many Americans insisted on their traditional rights as Englishmen in the conflict with Britain before and after declaring independence. Magna Carta — particularly the provisions concerning the “law of the land” and “judgment of his peers” — embodied fundamental rights of Englishmen that American revolutionaries were willing to fight to protect. As Edward Coke had found more than a century before, American revolutionaries understood that invoking such an ancient document inspired resistance to authority.
Americans cherished Magna Carta most because of its association with jury trial. Juries had proved useful to Americans in their conflict with Britain. Colonial American juries had nullified the law of seditious libel, customs taxes, and debts to British merchants. It was no wonder Americans held the jury in high esteem, at least until they had to run their own governments. Americans filled their constitutions, both federal and state, with rights to jury trial. Several American states even included translations of provisions from Magna Carta in their constitutions, enshrining the “judgment of his peers.” Once Americans had achieved independence and formed the new republics, judges faced the task of interpreting these thirteenth-century provisions as eighteenth- and nineteenth-century law. American judges quoted Blackstone and historical treatises. Through the nineteenth century, however, American enthusiasm for juries waned. The much-repeated phrases from Magna Carta became a flimsy screen, masking the steady decline of jury power.
The Supreme Court’s inquiry into the constitutionality of the death penalty has overlooked a critical “objective indicator” of society’s “evolving standards of decency”: the rate at which citizens are excluded from capital jury service under Witherspoon v. Illinois due to their conscientious objections to the death penalty. While the Supreme Court considers the prevalence of death verdicts as a gauge of the nation’s moral climate, it has ignored how the process of death qualification shapes those verdicts. This blind spot biases the Court’s estimation of community norms and distorts its Eighth Amendment analysis.
This paper presents the first quantitative study of Witherspoon strikes in real capital cases, measuring the strike rate in eleven Louisiana trials resulting in death verdicts from 2009 to 2013. Of the 1,445 potential jurors questioned, 325 individuals (22.5%) were excluded from service on the basis of their opposition to the death penalty. These exclusions had a considerable impact on the racial composition of the jury pool: In the trials for which individualized data on race was available, one-third of black venire members were struck under Witherspoon, and nearly 60% of those struck on this basis were black. These findings underscore the profound impact of death qualification upon the composition of capital juries and the outcomes of capital trials. Particularly in the wake of Justice Breyer’s recent call for reconsideration of the death penalty’s constitutionality, there is an urgent need for (a) systematized, ongoing data collection on Witherspoon strikes, and (b) formal consideration of the effect of death qualification in future Eighth Amendment analysis.
In Dietz v. Bouldin, the SCT in a 6-2 opinion held that "[a] federal district court has a limited inherent power to rescind a jury discharge order and recall a jury in a civil case for further deliberations after identifying an error in the jury’s verdict. The District Court did not abuse that power here."
The facts of Bouldin are as follows:
Petitioner Rocky Dietz sued respondent Hillary Bouldin for negligence for injuries suffered in an automobile accident. Bouldin removed the case to Federal District Court. At trial, Bouldin admitted liability and stipulated to damages of $10,136 for Dietz’ medical expenses. The only disputed issue remaining was whether Dietz was entitled to more. During deliberations, the jury sent the judge a note asking whether Dietz’ medical expenses had been paid and, if so, by whom. Although the judge was concerned that the jury may not have understood that a verdict of less than the stipulated amount would require a mistrial, the judge, with the parties’ consent, responded only that the information being sought was not relevant to the verdict. The jury returned a verdict in Dietz’ favor but awarded him $0 in damages.
After the verdict, the judge discharged the jury, and the jurors left the courtroom. Moments later, the judge realized the error in the $0 verdict and ordered the clerk to bring back the jurors, who were all in the building—including one who may have left for a short time and returned. Over the objection of Dietz’ counsel and in the interest of judicial economy and efficiency, the judge decided to recall the jury. After questioning the jurors as a group, the judge was satisfied that none had spoken about the case to anyone and ordered them to return the next morning. After receiving clarifying instructions, the reassembled jury returned a verdict awarding Dietz $15,000 in dam- ages. On appeal, the Ninth Circuit affirmed.
English Abstract: The introduction to the special issue describes the goals of the conference on Juries and Mixed Tribunals across the Globe, and identifies themes that emerged as jury scholars from all over the world examined different forms of lay participation in legal decision-making. The introduction focuses on common challenges that different systems of lay participation face, including the selection of impartial fact finders and the presentation of complex cases to lay citizens. The introduction and special issue articles also highlight new developments and innovative practices to address these challenges, including some tools, like decision trees, that remain highly controversial. The introduction closes by emphasizing the enduring political importance of citizen participation in law.
Spanish Abstract: La introducción a este número especial describe los objetivos de la conferencia sobre jurados y tribunales mixtos en el mundo, e identifica los temas que surgieron cuando académicos de todo el mundo especializados en jurados analizaron diferentes formas de participación de legos en la toma de decisiones jurídicas. La introducción se centra en los desafíos comunes a los que se enfrentan los diferentes sistemas de participación de legos, incluyendo la selección de jurados imparciales y la presentación de casos complejos a ciudadanos profanos en la materia. La introducción y el número especial también destacan nuevos desarrollos y prácticas innovadoras para afrontar estos retos, incluyendo algunas herramientas, como los árboles de decisiones, que todavía son muy controvertidas. La introducción finaliza, haciendo hincapié en la importancia política duradera de la participación ciudadana en el derecho.
Over time, the criminal, civil, and grand juries have declined in power. Cost, incompetence, inaccuracy, and inefficiency are often cited as the reasons for this fall. Recognizing that authority that formerly resided in the jury has shifted to the traditional constitutional actors of the executive, the legislature, the judiciary, and the states, this article explores a new theory for the decline of the jury. In the past, the Supreme Court has used the doctrines of the separation of powers and federalism to protect the power of the traditional actors including the branches, while it has not used any similar doctrine to preserve jury authority. At the same time, the power of the jury has eroded. This article argues that the jury is effectively a “branch” of government—similar to the executive, the legislature, and the judiciary—that has not been recognized and protected. In many instances the Court originally found authority in the jury to later take the same authority and give it to a traditional actor. A novel study helps explain why the status of the jury has changed. It shows that legal elites and corporations appear to have influenced this shift against jury authority.
The changes listed below were due in large part to Jefferson County Circuit Court Judge Olu Stevens who drew the ire of local prosecutors for dismissing non-diverse jury pools.
Changes in the works at the state level by the court administrative office, some of which are pending approval by the state Supreme Court, include revisions to state rules not updated since 1998.
Entered into an agreement with the Kentucky Board of Elections to get names from voter registry quarterly instead of the mandated yearly update. Agreements are in the works to do the same with the other two sources of the potential juror master list – the driver’s license registry and those filing state individual income taxes. This, in theory, will keep the list of mailing addresses more accurate.
Implement a standardized, automated system of postcard notifications to no-show jurors and then follow up with failure to appear letters. This has not occurred with any sustained consistency in Jefferson County, though when it has been done, appearance rates improved.
Moved a full-time AOC employee over jury management issues. Previously, there's been no key point person.
Remove “legalese” and other cumbersome language from paperwork sent to citizens.
Move some jury administration elements to Frankfort and out of Jefferson County to save an estimated $44,000 yearly. No local jobs are expected to be lost with this change.
Seeking $12,000 in grant funding to work with the Louisville Bar Association to create a "juror awareness campaign" targeted in Louisville that would include informational videos and bus advertising. Would seek to cut the failure to appear rate and boost confidence in the system.
This article explores the potential of the decision tree (also referred to as a flow-chart, “Route to Verdict” or question-trail) to improve the legal comprehension of jurors in criminal trials. It examines why the decision tree has not yet been adopted as a mainstream jury aid in the United States and suggests that the hesitancy is rooted in longstanding distrust of any attempt to encroach on the freedom of the jury and the concern that a list of questions to guide jury deliberations may unduly influence and compel a verdict that the jury would not otherwise render. The findings from research from England, Canada, Australia and the United States on the effectiveness of decision trees in enhancing juror comprehension is discussed. The reliance on decision trees in medicine to facilitate patient comprehension of treatment options and in assisting physicians to navigate through complex treatment protocols is also considered as instructive for the legal system. The paper suggests that decision trees neither interfere with a defendant’s constitutional right to a jury trial nor with a jury’s right to deliberate freely, and that greater use of this tool should be considered given the promising indications from empirical research that decision trees can enhance jurors’ recall and comprehension of legal concepts. Any concerns about the potential misuse of decision trees are overstated and can be remedied through clear instructions to the jury.
Today, the SCT released its opinion in Foster v. Chatman. Here is a brief summary of the opinion taken from the ABA's Criminal Justice Section.
Summary: The Court held that the Georgia Supreme Court's holding that there was no purposeful discrimination in the prosecution's elimination of all black prospective jurors during Foster's trial was clearly erroneous. The Court determined that notes from the prosecution's file strongly demonstrated a discriminatory motivation behind the peremptory striking of all of the qualified black jurors, and a "concerted effort to keep black prospective jurors off the jury."