This Note examines the claim that judges have improperly granted summary judgment where a reasonable jury could find for the nonmoving party. It begins by reviewing the literature on summary judgment, particularly three opinions the Supreme Court issued in 1986, as well as claims about the propriety of summary judgment in fact-intensive civil rights cases. To test these claims, this Note compiles cases where summary judgment was reversed and where a jury trial was held, which together indicate improperly granted summary judgment. Finding a number of such cases, including a higher-than-projected concentration of civil rights cases, this Note concludes by considering implications for civil rights litigation and federal civil procedure.
Almost from the moment the law is set to paper, it is shaped and refined through acts of interpretation and discretion. Police and prosecutors choose which cases to investigate, which to charge and how to charge them. Judges make decisions every day that affect the outcome of cases. These acts of interpretation and discretion are driven by the perspectives of those empowered to make them. All too frequently, they reinforce existing power dynamics. But there are other realms of discretion in criminal law. Whether seeking to apply a legal standard as instructed or engaging in an act of nullification, ordinary citizens serving as jurors engage in unique acts of interpretation, redefining the very concept of the law in terms of their own lived experiences and expectations. In this, jurors serve a democratic function that exceeds their minimalist label as “mere fact finders.”
But in this account of the jury, the people who occupy the jury box matter. To imagine the jury as serving this democratic function is inevitably to turn to a conversation about the identities of the men and women who actually serve as jurors. While courts and scholars speak wistfully of a “representative” jury — one that reflects the community from which it is drawn — this conversation remains dissatisfying, as it seeks to compartmentalize discussions of the jury’s function and the jury’s composition.
This Paper rejects the separation, instead examining the question of the jury’s composition in the context of its proposed function. In the process, a more nuanced theory of jury selection emerges — one that recognizes that while a representative jury matters, the question of what that representation is and precisely why it matters shifts as notions of function shift. The function this Paper explores is the critical interpretive role the jury plays within the democratic lawmaking body. Viewed through this lens, one must first confront the question of precisely which community the jury seeks to represent and how it achieves that representation. In a world in which different communities may bear the disproportional burden of lawmaking and application, different communities may have a different stake in the jury itself. If so, the use of geographically defined jurisdictions to produce venire panels may cease to make sense. Likewise, the value of proportional representation on individual juries, while promoting some functions, may undermine the jury’s democratic viability. Specifically, and perhaps ironically, disproportionate representation on individual juries may actually promote the jury’s democratic function. Even more fundamentally the very definitions of “community” and “identity” become fluid in the context of a democratically driven jury that serves as a forum for citizens to constantly realign their own allegiances as they attempt to apply the law to the defendant and so define the law’s limits in their own lives. In shifting this conversation about jury composition, the possibility of the jury as a unique democratic space emerges.
Outing Batson: How the Case of Gay Jurors Reveals the Shortcomings of Modern Voir Dire
Although scholarly attention has been devoted to the argument that Batson v. Kentucky should apply to gay and lesbian jurors, little or no attention has been paid to how these challenges would work in practice. This article is, foremost, a thought experiment about how peremptory challenges would function if Batson were applied to sexual orientation. I examine several scenarios to understand the practical implications of this change and conclude that it would be ineffective at best and socially appalling at worst. My analysis reveals a fundamental problem with the current peremptory system: it fails to take into account the complex nature of social identity and the psychological realities of human interaction and bias. The goal of equal protection, I suggest, would be better served if changes were made to the existing peremptory challenge system, such as reducing the number of challenges allowed and requiring a Batson-style explanation for every peremptory challenge exercised.
The soul of America’s civil and criminal justice systems is the ability of jurors and judges to accurately determine the facts of a dispute. This invariably implicates the credibility of witnesses. In making credibility determinations, jurors and judges necessarily decide the accuracy of witnesses’ memories and the effect of the witnesses’ demeanor on their credibility.
Almost all jurisdictions’ pattern jury instructions about witness credibility explain nothing about how a witness’s memories for events and conversations work — and how startlingly fallible memories actually are. They simply instruct the jurors to consider the witness’s “memory” — with no additional guidance. Similarly, the same pattern jury instructions on demeanor seldom do more than ask jurors to speculate about a witness’s demeanor by instructing them to merely observe “the manner of the witness” while testifying. Yet, thousands of cognitive psychological studies have provided major insights into witness memory and demeanor. The resulting cognitive psychological principles that are now widely accepted as the gold standard about witness memory and demeanor are often contrary to what jurors intuitively, but wrongly, believe.
Most jurors believe that memory works like a video camera that can perfectly recall the details of past events. Rather, memory is more like a Wikipedia page where you can go in and change it, but so can others. Memories are so malleable, numerous, diverse, and innocuous post-event information alters them, at times in very dramatic ways. Memories can be distorted, contaminated, and even, with modest cues, falsely imagined, even in good faith. For example, an extremely small universe of people have highly superior autobiographical memory (HSAM). They can recall past details (like the color of the shirt they were wearing on August 1, 1995) from memory almost as well as a video camera. Yet, in one study, HSAM participants falsely remembered seeing news film clips of United Flight 93 crashing in a field in Pennsylvania on September, 11, 2001. No such film exists. Thus, no group has ever been discovered that is free from memory distortions. In one interesting study, students on a college campus were asked to either perform or imagine certain normal and bizarre actions: (1) check the Pepsi machine for change; (2) propose marriage to the Pepsi machine. Two weeks later, the students were tested and demonstrated substantial imagination inflation leading to false recognition of whether they performed or imagined the actions.
Few legal principles are more deeply embedded in American jurisprudence than the importance of demeanor evidence in deciding witness credibility. Historically, demeanor evidence is one of the premises for the need for live testimony, the hearsay rule, and the right of confrontation under the Sixth Amendment to the U.S. Constitution. Yet, cognitive psychological studies have consistently established that the typical cultural cues that jurors rely on, averting eye contact, a furrowed brow, a trembling hand, and stammering speech, for example, have little or nothing to do with a witness’s truthfulness. Also, jurors all too often wrongly assume that there is a strong correlation between a witness’s confidence and the accuracy of that witness’s testimony. Studies have determined that jurors’ perceptions of witness confidence are more important in determining credibility than the witness’s consistency or inconsistency. Another series of studies indicate that demeanor evidence predicts witness truthfulness about as accurately as a coin flip.
Once credibility determinations are made by the fact-finder, it is nearly impossible to overturn those decisions on post-trial motions or appeal. While the secrecy in which credibility determinations are made promotes the legitimacy of fact-finding, it also shrouds its countless failings. Despite years of overwhelming consensus among cognitive psychology scholars and numerous warnings from thoughtful members of the legal academy — judges have done virtually nothing to identify or begin to try and solve this serious problem. The one exception is eyewitness identification of suspects in criminal cases where several state supreme courts have relied heavily on cognitive psychological research to craft better science- based specialized jury instructions.
This article examines in detail and analyzes the often amazing and illuminating cognitive psychological research on memory and demeanor. It concludes with a Proposed Model Plain English Witness Credibility Instruction that synthesizes and incorporates much of this remarkable research.
Lawyers routinely make strategic advocacy choices that reflect directly, if inferentially, on the credibility of their clients’ claims and defenses. But courts have historically been reluctant to admit evidence of litigation conduct, sometimes even expressing hostility at the very notion of doing so. This Article deconstructs that reluctance. It argues not only that litigation conduct has probative value, but also that there is social utility in subjecting lawyer behavior to juror scrutiny.
The primary goal of trial is, of course, uncovering “truth.” But judges routinely conceal from jurors evidence of litigation conduct — inconsistent pleadings, abusive discovery, and evidence-selection choices — even though that conduct can be compelling evidence that would assist jurors in the quest for truthful factfinding. At the same time, there is almost universal consensus that litigation misconduct has become pervasive because it is profitable. And there is also consensus that it goes largely unchecked.
Judges refuse to permit jurors to evaluate litigation conduct for a variety of reasons, most of which stem from misguided notions of institutional competence — that judges, not juries, are in a better position to manage the trial process and to regulate the profession. But this Article shows that admitting evidence of litigation conduct would have twin benefits: it would preserve the jury’s historic power to evaluate relevant circumstantial evidence, and it would provide much-needed disincentives for the sort of misconduct that has come to permeate our justice system.
In contrast to medical malpractice, legal malpractice is a phenomenon that has attracted little attention from empirically-oriented scholars. This paper is part of a larger study of legal malpractice claiming and litigation. Given the evidence on the frequency of legal malpractice claims, there are surprisingly few legal malpractice cases that result in jury verdicts. There are many possible explanations for this, one of which reflects the perception that lawyers are held in such low esteem by potential jurors that they risk harsh treatment by jurors when they are defendants in legal malpractice trials. Because we could find no empirical evidence that that either supported or rejected the reality of this perception, we designed a simple jury simulation experiment to test this as an hypothesis. Using three different case scenarios, each in two forms (one set within a legal malpractice framework and one outside legal malpractice), we found support for the hypothesis in only one of the three scenarios and even there the effects were at best modest. These results held up controlling for other possible factors that might influence juror responses to the case scenarios.