The literature considering various possible procedural reforms to American jury trial practice suffers from a high dose of American Exceptionalism. The experience of other nations rarely is acknowledged, much less considered as possibly informative. This Article argues that as a British-derived system of roughly identical vintage as the United States, the jury practices of Malta can inform American practice in three respects: (1) the desirability of increased juror interaction – in particular allowing oral juror questions to witnesses and allowing deliberation during the trial, (2) the utility of eliminating voir dire in jury selection, and (3) the possibility of procedural reform such as modifying the verdict form to insulate jurors from external pressures on the verdict.
After two grand juries failed to indict the police officers that killed Michael Brown and Eric Garner in 2014, our nation has engaged in polarizing discussions about how juries reach their decision. The very legitimacy of our justice system has come into question. Increasingly, deep concerns have been raised concerning the role of race and gender in jury decision-making in such controversial cases. Tracing the roots of juror decision-making is especially complicated when jurors’ race and gender are factored in as considerations. This Article relies on social science research to explore the many cross-sectional challenges involved in the jurors’ decision making in the George Zimmerman case. To analyze how the Zimmerman jurors’ race and gender may have affected their decision-making in the case, we present empirical studies evaluating the effect of race and gender on juror decision-making in criminal cases. Our aim in this Article is to create dialogue about an important challenge for our justice system: How can we fulfill the constitutional mandate that juries be diverse? How can we overcome the barriers to fulfilling this ideal? We conclude by demanding stronger measures to ensure that juries represent a fair cross-section of the communities that they represent. Our suggestions also include focusing on the prosecutor’s special obligations to serve justice by selecting a jury that adequately represents the community from which it is drawn. These and other changes are crucial to ensuring that communities accept even the most controversial jury decisions as legitimate.
A three-judge panel of the First Circuit Court of Appeals has ruled that the trial of Dzhokar Tsarnaev can be held in Boston. Defense attorneys for Tsarnaev had requested a change of venue arguing that because of extensive pre-trial publicity about the Boston Marathon bombing Tsarnaev could not get a fair trial in Boston. To read the opinion by the First Circuit go here. The question of whether Tsarnaev's trial should be moved has also been debated on the Op-Ed page of the NY Times.
by Suann Ingle. Many of us have read the book Lean In by Sheryl Sandberg. Suann read it and then saw the recent article by Sandberg and a colleague discussing why women don’t speak up at work. Suann has ideas about why women may not speak up in the corporate world but she also has ideas about why they do speak up in the deliberation room. If you want your female jurors to participate, take a look at Suann’s ideas on how to make that happen.
by Ken Broda-Bahm. “We all have an image in our heads of the way we expect cases to end: passionate presentations, gripping witness testimony, then a tense wait followed by the dramatic verdict. In the great majority of cases, however, the dispute will end not in a courtroom but in a conference room.” So begins Ken Broda-Bahm’s article on the psychology of a persuasive settlement. This is an article that focuses on the issues that keep us (or rather, “the other side”) from settling a case when that is the most logical outcome.
by Samuel R. Sommers and Satia A. Marotta. We don’t do reprints in The Jury Expert. But this time, we are doing a reprint, because this article was written in plain language and the content is so important we want to make sure everyone has a chance to read it. There are many ways racial bias factors in to legal decisions and this article focuses on how racial bias enters into decisions on policing, charging decisions, and criminal trial outcomes. This is a must read article.
by Jill Leibold. It’s a question often asked by trial attorneys. Jill has some thoughts on turning that question around so you ask who is not your ideal juror. She also has some ideas on how you can identify both your favorites (and your not favorites) so you go into jury selection more confidently.
We like a good infographic here at The Jury Expert and this favorite thing entry gives you many infographics. If you, like me, have trouble remembering the different uses of the words “affect” and “effect”—you’ll love the infographic we are featuring!
[a TJE Classic] by Kevin Boully. Before May 2008, when we began to publish entirely online, The Jury Expert had some very good pieces that saw limited exposure. We devoted an entire issue to “the classics” that stood the test of time but didn’t have room for this one. How do you apologize effectively in the courtroom? Kevin Boully knows the literature and offers his perspective on the importance of both apology and the importance of doing apology right.
This research presents aspects of juror receptivity to mitigating factors of mental, cognitive/intellectual and situational impairments in capital sentencing decisions. The study examined types of mental factors, as well as the gender of defendants, the aggravating nature of the crime and victim vulnerability. An exploratory cross-tabulation analysis evaluated the percentages and relationships between juror closed-ended CJP survey responses to mental sentencing factors and mental evidence presented at trial for 38 cases. While the sample size was too small in some cells for significance testing, the percentages demonstrated patterns. A detailed qualitative analysis of 12 cases with strong evidence of mental defenses compared juror open ended responses to trial evidence. The results were organized into five salient themes: personality disorders, intellectual disability, drug addiction, female defendants, and child victims.
The intensive qualitative analysis corroborated the findings of the exploratory cross-tabulation. Jurors were more receptive to intellectual disability and “organic” impairments than to temporal personality disorders. Jurors were not responsive to learning disabilities. Jurors found evidence of drug addiction to be more aggravating than mitigating. Where antisocial disorders and very aggravated crimes and victimizations were presented, more jurors found mental disturbance as a sentencing factor. The intensive analysis explained that jurors found defendant’s mental illness factors as aggravating, emphasizing the “brutality” of the crimes. Jurors were dubious of contested psychological testimony, focusing on family background and lay explanations. Arbitrariness was found in flawed judicial guidance and prosecutorial rhetoric, urging that intoxication, youth and abuse were not mitigating. Jurors with premature first-vote pro-death views were more distracted by arbitrary factors. They viewed defendant’s early admissions to determine capital guilt and used voir dire oath as a rationale to embarrass holdout jurors.
Jurors failed to respond to mental evidence because of difficulty evaluating contested evidence and because of distractions owing to extra-legal factors unrelated to the evidence; premature automatic death-penalty decisions, parole speculation and racial considerations among jurors. This suggests that threshold errors can skew death decisions by distracting holdout jurors from urging consideration of mitigation and chilling dissent. These errors stifle moral considerations and serve as a “counterweight” to the proper weighing of evidence.
NY's top judge believes that the judiciary should play a greater role in the grand jury process when police are accused of killing a civilian. I personally think that grand jurors should be provided their own counsel.
It is uncommon for judges to punish a juror. It is really uncommon for judges to punish a juror for talking to the media. It is really, really uncommon for judges to punish a juror for talking to the media after that juror has already been dismissed from the case. However, it does happen as evidenced by the prosecution Marla Lloyd.
Lloyd was a juror in the death penalty trial of Shaw Ford. However, she was dismissed from the case prior to the jury reaching a verdict. Sometime after the verdict but before sentencing Lloyd spoke to the media about the case. Her actions, according to the prosecution, violated the judge's gag order for all jurors. As a result, she is now being prosecuted for contempt of court.
Loyd's prosecution is troubling for a variety of reasons. First, what is the purpose of her prosecution? Put differently, what does the prosecution or judge hope to obtain with a conviction? Second, why isn't this prosecution an infringement on Loyd's 1st Amendment rights? Third, how far can a judge go in restricting others from discussing things that occur in a courtroom? Could a judge tell jurors or prospective jurors that they may never talk about the case? It appears to me that once Lloyd was released from jury duty, the judge no longer had jurisdiction or authority to regulate what she said.
The article below examines the financial challenges of being a juror on a case that lasts for an extended amount of time. The net result is that you have certain people who just can't serve because of the financial hit they will receive. This in turn leads many juries to be made up of either very old people who have retired or young people who have yet to begin their careers.
The defendant’s two counts of making a criminal threat are reversed for the following reasons:
1) the trial court erred in denying defendant's Batson/Wheeler motions alleging that the prosecutor had discriminated against men in exercising peremptory challenges during jury selection;
2) purposeful discrimination in the exercise of peremptory challenges is structural error that is reversible per se; and
3) the prosecutor's failure to articulate anything about Jurors 6 and 32 as the basis for striking them after the trial court had found a prima facie case of group bias did nothing to dispel the reasonable inference that the prosecutor preferred women to men and was exercising her peremptory challenges to effect that preference.