To promote student research in the area of litigation science, the Research Committee of the American Society of Trial Consultants (ASTC) is sponsoring a Student Poster Competition at the ASTC Annual Conference.
Submit your poster soon! The deadline for submission is April 1st.
Negative Article about Treatment of LEP Jurors in Queens, NY
The Daily News reported on March 20, 2017 that four judges in Queens, NY threatened prospective jurors with limited English proficiency with mandatory English classes. The story claims that 6 appeals have raised this issue claiming error based on the practice. The story has a number of quotes they attribute to judges such as the one below:
If you have not understood some of what I have said because of language difficulties, you will be excused from this trial and if you’re excused because of language difficulties, you will not get paid for today’s jury service and you may very well have to take a course in English.
Jurors were not denied payment based on their lack of language skills and there are not any court programs to teach prospective jurors English.
Appellate attorney Lynn Fahey wrote, “What the court told those prospective jurors was simply not true. There is no provision in the Criminal Procedure Law, or other relevant rules and statutes, that a prospective juror who is excused for lack of English proficiency may be required to take a language course.”
It is a general rule of trial practice that “due process does not require a new trial every time a juror has been placed in a potentially compromising situation. Were that the rule, few trials would be constitutionally acceptable . . . . [I]t is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote.”
While that remains true, juror texting is poised to put that theory to, the test. Juror texting is really a new version of an age-old issue aimed at maintaining the sanctity of the impartial juror and the fairness of a jury trial. It raises significant concerns, which a multitude of legal scholars have addressed in the context of jurors’ exposure to outside influences via the internet. However, these same scholars have overlooked the fact that many of the same concerns apply to jurors sending text messages as well. Text messaging, in fact, is a unique form of communication that implicates additional complex issues, including the potential for juror bias through extrinsic sources, the complications of technology in the courtroom, the level of privacy enjoyed by senders and receivers of text messages, and the speech freedoms that a texter has.
Bills to Protect LGBTQ Jurors
On March 13, 2017, U.S. Representative Susan Davis introduced H.R. 1515 which is a bill “to prohibit the exclusion of individuals from service on a Federal jury on account of sexual orientation or gender identity.” On March 15, 2017, Senator Jeanne Shaheen introduced S. 635 which is a parallel bill.
Detroit Offers Jurors Bus Passes
The Associated Press reported on March 18, 2017 that Wayne County, MI will begin offering jurors bus passes on May 1st. This benefit is part of a strategy to get people to report for jury service. In 2016, 35% of people failed to respond to summonses.
Nullification Bill in Oregon
Oregon state senator Thatcher introduced S.B. 924 recently. The bill would require Oregon state judges to instruct the juries in felony cases that they have the right to nullify cases. The bill would require judges to provide the following instruction, “As jurors, if you feel that a conviction would not be a fair or just result in this case, it is within your power to find the defendant not guilty even if you find that the state has proven the defendant’s guilt beyond a reasonable doubt.”
The judge in the Aaron Hernandez murder trial recently warned the jurors in the case about posting information on social media. This warning came about because someone, who claimed to be juror #8 in the Hernandez trial, posted the following in the law sub-Reddit:
"Today, I watched a common street thug absolutely destroy high profile attorney Jose Baez on cross. despite multiple efforts of Baez to stall regain his composure."
In every criminal trial, the defendant possesses the right to testify. Deciding whether to exercise that right, however, is rarely easy. Declining to testify shields defendants from questioning by the prosecutor and normally precludes the introduction of a defendant’s prior crimes. But silence comes at a price. Jurors penalize defendants who fail to testify by inferring guilt from silence.
This Article explores this complex dynamic, focusing on empirical evidence from mock juror experiments – including the results of a new 400-person mock juror simulation conducted for this Article – and data from real trials. It concludes that the penalty defendants suffer when they refuse to testify is substantial, rivaling the more widely-recognized damage done to a defendant’s trial prospects by the introduction of a criminal record. Moreover, these two penalties work in tandem, creating a “parallel penalty” effect that systemically diminishes the prospects of acquittal and incentivizes guilty pleas.
The empirical evidence surveyed, including the new juror simulation, will be of obvious interest to participants in the criminal justice system. But, as the Article explains, the data also present a powerful indictment of the system itself.
Interesting article about implicit bias and the value of diverse juries. I really like the following:
When making the decision about reasonable fear, jurors should not ask themselves, "If I were the officer, would I have been scared?” Instead they should ask, "If I were the officer, should I have been scared?” Or, “Would I have been afraid if the driver had been white?
New York’s Supreme Court, Appellate Division, First Department rendered an opinion in People v. Telesford and Celestine on March 15, 2017. Telesford and Celestine were convicted of robbery following a jury trial. Factually, this was a shoplifting gone awry that then escalated to include a fight with the shopkeepers. The defendants were charged under an accessorial liability theory. The jury expressed repeated confusion in regard to the theory of the case. The appellate court determined that merely rereading the original instructions was inadequate to resolve the jury’s confusion and reversed the convictions. The court stated:
However, where the court fails to give information requested, upon a vital point, a failure to respond may constitute error. The error is not so much that an instruction is inadequate in some legal respect, but that the jury, misled by or not comprehending the original charge, remains perplexed about the elements of the crime or the application of the law to the facts.
Editor’s comments: This is not the law in every state. In some states it would be error to fashion a new instruction under these circumstances. Additionally, jurors frequently have difficulty understanding jury instructions with the so called “inchoate crimes” (conspiracy, principle in the second, aiding and abetting, accessory, etc.). To get to the actual case, readers will have to scroll down past page 110 using the link above as the PDF contains several cases.
Study Demonstrates Shrinking Pool of Qualified Jurors for Death Penalty Cases
Brandon L. Garrett of the University of Virginia School of Law, et. al., recently published an article in the Yale Law Journal Forum titled, Capital Jurors in an Era of Death Penalty Decline. The study is interesting because it demonstrates that a shift in public opinion on the death penalty has a direct correlation to the percentage of jurors that are sufficiently unbiased to hear this type of case. The abstract to the article states:
The state of public opinion regarding the death penalty has not experienced such flux since the late 1960s. Death sentences and executions have reached their lowest annual numbers since the early 1970s and today, the public appears fairly evenly split in its views on the death penalty. In this Essay, we explore, first, whether these changes in public opinion mean that fewer people will be qualified to serve on death penalty trials as jurors, and second, whether potential jurors are affected by changes in the practice of the death penalty. We conducted surveys of persons reporting for jury duty at the Superior Court of Orange County, California. What we found was surprising. Surveys of jurors in decades past suggested ten to twenty percent of jury-eligible individuals would be excludable due to their substantial doubts about the death penalty. Despite Orange County’s status as a redoubt of death sentencing, we find that 35% or more of jurors reporting for jury service were excludable as having such substantial doubts about the death penalty that it would “substantially impair” their ability to perform their role as jurors. Indeed, large numbers went further: roughly a quarter said they would be reluctant to find a person guilty of capital murder knowing the death penalty was a possibility. A final question asked whether the fact that executions have not been conducted in California for a decade impacts whether jurors would be favorable towards the death penalty. We found that, across all types of attitudes towards the death penalty, that fact made jurors less inclined to sentence a person to death. Rare punishments may seem more arbitrary, even to those who find them morally acceptable. We conclude by describing how this research can be useful for scholars, litigators, and judges concerned with selection of jurors in death penalty cases, and we discuss why, as social and legal practices change, more study of public attitudes towards punishment is needed.
The New York Times ran an article on March 11, 2017 titled, The Law’s Emotion Problem. The article describes several recent studies which demonstrate that people tend to interpret external events through the lens of their own belief systems. For example, one study had subjects watch a video of protesters being dispersed by police. They were also told it was an anti-abortion protest and then asked whether the protesters were peaceful or violent. Subjects that were more liberal tended to indicate the protesters were violent while more conservative subjects saw them as peaceful. It is an interesting article and certainly provides support for the concept that diversity in juries leads to a better quality of justice.
Jurors in Cosby Case Will Be From Out-of-County
The Morning Call reported on March 14, 2017 that the jurors who will hear Bill Cosby’s “aggravated indecent assault” case will be from another county. Cosby is being tried in Montgomery County, PA. His lawyers successfully argued that the intense media coverage of the case tainted the jury pool, noting that it was an issue in the 2015 race for Montgomery County district attorney. Chief Justice Thomas G. Saylor ordered that the jury pool come from Allegheny County. The two counties are on opposite ends of the state, are both urban and both have similar demographics.
Bad actors in patent litigation can face serious consequences. Infringers who are found to “willfully” infringe may be subject to trebled damages. Patentees who assert weak claims in bad faith can be ordered to pay the defendant’s attorneys’ fees. These remedies are of such importance to the patent system today that the Supreme Court reinvigorated both of the respective doctrines in back-to-back landmark decisions in 2014 (Octane Fitness) and 2016 (Halo Electronics).
Those decisions have helped district courts more effectively punish and deter misconduct. But the Supreme Court neglected to address a critical part of these remedies — whether and to what extent they should be tried to a jury. Under current law, willfulness can be tried to a jury but bad-faith enforcement cannot. This means that plaintiffs alone can legitimately cast aspersions at defendants that profoundly color the case and the jury’s views of it.
It has long been held that willfulness is an issue triable by jury, but courts have reached that conclusion without conducting the proper analysis, which requires delving into the historical treatment of the issue. This article performs that analysis, finding that the Seventh Amendment does not guarantee a right to try willfulness to a jury. Nor does the Seventh Amendment require that questions of bad-faith enforcement be tried to juries. Both issues lack clear historical antecedents or analogues that would suggest juries decided the issues when the Seventh Amendment was ratified.
Whether such issues should be tried to juries likely comes out in the negative as well. Juries are ill-equipped to appreciate the proper significance and context of evidence touching on willfulness and bad-faith enforcement, which typically includes matters of claim construction, discovery, legal interpretation, or settlement discussions. And evidence about a party’s culpability can easily bleed into the threshold liability and damages determinations, resulting in unsupportable compromise verdicts on those issues.
The best practice would be to try neither issue, but as it is, with willfulness being submitted to juries, a separate question is whether that alone justifies trying bad-faith enforcement to juries as well. This article demonstrates that basic fairness, as well as evidentiary practicalities for how such issues are proven, compels that both issues be tried together, and to the same jury, to ensure that juries hear both sides of the story before they assign moral blame.