Public Policy

Jeffrey Bellin, Is Punishment Relevant After All? A Prescription for Informing Juries of the Consequences of Conviction (electronic copy available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1548654).

This article suggests that evidence of unusually severe punishments should be admitted during a criminal trial for the jury's consideration. The author argues that jurors should have this knowledge as part of their nullification power. Even though jurors may be persuaded to vote not guilty if they learn that the defendant would be subjected to a particularly severe punishment, the majority of courts have uniformly considered such evidence to be irrelevant. Furthermore, such evidence is unlikely to be admitted through legislative or judicial reform. Instead, the author proposes that such evidence should be admitted as 'anti-motive' evidence, or as evidence that it is unlikely a defendant committed a particular crime because he knew that he would be subjected to a particularly harsh penalty.

Jeffrey Bellin & Junichi P. Semitsu, Widening Batson's Net To Ensnare More Than the Unapologetically Bigoted or Painfully Unimaginative Attorney (electronic copy available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1591091).

The authors argue that Batson v. Kentucky is currently incapable of rooting out purposeful racial discrimination in jury selection. After reviewing the Batson framework, the authors survey federal court decisions from 2000-2009 and find that Batson challenges are rarely successful. They hypothesize that part of the reason why Batson challenges are unsuccessful is because the trial court must make a direct finding of attorney misconduct. As a solution, the authors propose a new rule that allows judges to find that a juror was stricken because of his or her race or gender without having to make a finding about the attorney's subjective intent. They also suggest that the remedy for a Batson violation should be the immediate reseating of an improperly stricken juror without the juror ever knowing he or she was the subject of a strike.

John H. Blume, Sheri L. Johnson & Emily C. Paavola, Every Juror Wants a Story: Narrative Relevance, Third Party Guilt and the Right to Present a Defense, 44 American Criminal Law Review 1069 (2007).

The authors argue that in criminal trials evidence of third-party guilt should be more admissible than it currently is. Under the current structure, such evidence is rarely admitted for fear of confusing the jury and fear of third parties fabricating statements. However, the authors argue that such evidence is often crucial in order to complete a criminal defendant's "narrative." In other words, without providing an explanation of who else could have committed the crime, a criminal defendant is at a disadvantage because she is unable to tell her story completely. The authors conclude by proposing several standards through which such evidence could be filtered during the trial so that juries are only presented with plausible, credible evidence.

Jenny E. Carroll, Of Rebels, Rogues and Roustabouts: The Jury's Second Coming (electronic copy available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1486188).

As the title suggests, the author argues that the American jury is experiencing a "second coming" and is currently being repositioned in the legal society. Looking specifically at jury nullification, she discusses how the jury, at one time, was in a position to rule on the law as well as the facts of a particular case. However, in the cases of Sparf & Hansen v. United States (1895) and Horning v. District of Columbia (1920), the United States Supreme Court effectively limited the jury's role to that of fact-finder. The author argues that the jury's position in society is once again shifting after the Supreme Court's decision in Apprendi v. New Jersey (2000), in which the Court recognized the role of the jury by requiring all factual determinations, including those used in sentencing, to be determined by the jury. The article concludes by suggesting that, under the recent line of Supreme Court decisions, the jury is in a position to once again claim the power of nullification.

Adam M. Gershowitz, Twelve Unnecessary Men: The Case for Eliminating Jury Trials in Drunk Driving Cases (electronic copy available at The University of Houston Accepted Paper Series Index).

In this article, the author argues that jury trials should be eliminated in driving-under-the-influence (DUI) cases. Although most states have increased the punishment for drunk-driving offenses, the author suggests that instead defendants who are accused of drunk driving should face a bench trial because judges are more likely to convict than juries. To explain, juries are less likely to convict defendants based on drunk driving because they may be more sympathetic to the defendant. In addition, highly skilled defense attorneys are matched against junior-level prosecutors. The author argues that more people would be deterred from driving while drunk if they knew they face a bench trial before a judge who was more likely than a jury to convict.

Valerie P. Hans, Juries as Conduits for Culture, in Fault Lines: Tort Law and Cultural Practice 80-96 (D.M. Engel & M. McCann eds., 2009).

In this essay, the author addresses the argument that tort law provides a unique opportunity for juries to introduce community values in civil jury trials. Specifically, she argues that core legal concepts of tort law, such as injury, liability, the reasonable person standard, and the appropriateness of compensation, depend on the jury's understanding of social norms. She then discusses the legal rules and procedures that allow jurors to bring their own understandings to deliberations and that also restrict jurors' opportunities to do so. The author also addresses the issue of civil jury nullification and suggests that civil juries have the opportunity to nullify in contributory negligence regimes in particular. Finally, she recommends additional research to uncover how popular norms and understandings shape tort law.

Michael Hatfield, The Anabaptist Conscience and Religious Exemption to Jury Service, 65 New York University Annual Survey of American Law 270 (2009).

In this article, the author explores whether there should be a religious exception to jury service. After providing background on the Anabaptists, who believe that jury service is against their religion, the author provides a constitutional argument as to why there should be a religious exception. Specifically, by looking at the Supreme Court's decisions in Sherbert v. VernerEmployment Division, Department of Human Resources of Oregon v. Smith, and Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, the author argues that under the Court's current Free Exercise Clause jurisprudence, a religious exception to jury service should be recognized because the government recognizes several secular exceptions to jury service. The author proposes a religious exception to jury service based on the conscientious objector exception to military service.

Gareth S. Lacy, Should Jurors Use the Internet? (electronic copy available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1600585).

The author argues that jurors should be allowed to use recent technological advancements in the courtroom. As a result of new technology, jurors now have instant access to the Internet on their mobile devices; however, currently jurors are not allowed to access the Internet. First, the author argues that the current judicial response, which is simply to admonish jurors not to use their mobile devices to conduct outside research, is ineffective because jurors do not understand the need for such restrictions. Second, he challenges the assumption that it is harmful for jurors to perform their own research. Finally, he suggests that juror access to the Internet is beneficial because it will help jurors understand complex trials.

Nancy S. Marder, Answering Jurors' Questions: Next Steps in Illinois, 41 Loyola University Chicago Law Journal 727 (2010).

This article examines the practice of allowing jurors to submit written questions to witnesses after they have been reviewed by the judge and recommends that Illinois join other states that permit this practice. The author argues that this practice will improve jurors' understanding of the trial and help attorneys to recognize when they need to clarify issues. Although some judges and attorneys are concerned that this practice will lengthen trials or improperly influence other members of the jury, empirical evidence from other jurisdictions demonstrates that the average trial was only lengthened by half an hour and that procedural safeguards prevent inappropriate questions from being asked. In order to implement such a policy in Illinois, the author suggests beginning with a pilot program, and once the practice gains acceptance, then the Illinois Supreme Court Rules Committee can create a rule that would explicitly permit jurors to submit questions to witnesses by presenting them in writing to the judge.

Nancy S. Marder, Jury Reform: The Impossible Dream?, 5 Tennessee Journal of Law and Policy 149 (2009).

In this commentary, the author offers a critique of Peter Tiersma's essay Asking Jurors To Do the Impossible and in so doing, she proposes three basic principles that should guide jury reform: (1) courts should be honest with jurors; (2) courts should give jurors the tools they need to be engaged in the trial and deliberations; and (3) courts should seek jurors who are broadly drawn from the community. These principles lead her to accept most of Tiersma's proposals for jury reform, though she suggests that several of his proposals do not go far enough. For example, while she agrees with Tiersma that courts should level with jurors, she argues that courts should also instruct jurors on their power to nullify and courts should inform jurors about three-strikes cases. The one proposal she suggests courts should not implement is the creation of expert juries because this proposal is contrary to the principle that juries should be selected from a fair cross section of the community.

Todd E. Pettys, Instrumentalizing Jurors: An Argument Against the Fourth Amendment Exclusionary Rule (electronic copy available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1565803).

In this article, the author argues that the Fourth Amendment exclusionary rule raises troubling moral concerns because it interferes with jurors' deliberative autonomy. Jurors, unlike trial judges who have evaluated the illegally-obtained evidence against the defendant and then made a legal decision not to consider such evidence, must make their decision without knowing that such evidence exists. Thus, jurors are being used to serve the U.S. Supreme Court's Fourth Amendment deterrence objectives. Although the author proposes several solutions that would prevent this infringement on jurors' deliberative autonomy, he ultimately suggests that the simplest solution would be to eliminate the exclusionary rule completely and to impose harsher punitive damage awards on police officers who violate the Fourth Amendment.

Benjamin J. Priester, Apprendi Land Becomes Bizarro World: "Policy Nullification" and Other Surreal Doctrines in the New Constitutional Law of Sentencing (electronic copy available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1577243).

In this article, the author criticizes the Supreme Court's recent line of sentencing cases beginning with the Court's decision in Apprendi v. New Jersey. Although he believes that Apprendi was rightly decided, he argues that subsequent decisions have impermissibly restored the power of judges to exercise discretion when imposing sentences. To explain, under Apprendi and its progeny, judges are more likely to justify their sentencing decisions based on the amorphous goals of sentencing, such as retribution and deterrence, instead of findings of fact. In addition, the author views these cases as the Court's attempt to engage in "policy nullification" and overturn a variety of congressional policy decisions regarding sentencing. He suggests that the Court should return to the roots of Apprendi and overturn its subsequent decisions.

Richard M. Re, Comment, Re-Justifying the Fair Cross Section Requirement: Equal Representation and Enfranchisement in the American Criminal Jury, 116 Yale Law Journal 1568 (2007).

While the fair-cross-section requirement governing criminal jury composition is typically understood in terms of the demographic composition of those juries, the author argues that an enfranchisement-based approach is better at conceptualizing the modern jury. The enfranchisement-based approach states that a jury is legitimate to the extent that all members of a particular group are eligible to participate in jury service in that they have been summoned for jury service. That is, to the extent that a criminal defendant can prove that a particular group has not been called for jury service, whether that group is Latina, brown-eyed, wealthy, or elderly, a criminal defendant would have a fair-cross-section claim. The author argues that this is preferable to a demographic-based approach because it avoids making an essentialist argument that a particular group thinks a certain way and instead focuses on the fact that a government has deprived a certain group of the opportunity to participate in jury service.

Thomas Regnier, Jury "Nullification" or Jury "Discretion"? Finding the Balance Between Rule and Will (unpublished paper).

In this article, the author suggests that juries should have the opportunity to decide both facts and law. He argues that, under a historical understanding of the criminal jury, juries had the power to judge the law. He then suggests that the term jury "nullification" is improper because the term connotes an image of the jury illegitimately flouting the law. Instead, he proposes that the term jury "discretion" should be used, indicating that, in rare circumstances, juries may use their discretion to acquit a defendant in the interest of justice. The author further argues that juries should be advised of their discretionary power if a defendant asks for the jury to be so instructed because a defendant who asks for such an instruction is implicitly admitting his guilt, and thus few defendants would actually ask for an instruction on jury discretion.

Sheila B. Scheuerman & Anthony J. Franze, Instructing Juries on Punitive Damages: Due Process Revisited After Philip Morris v. Williams, 10 University of Pennsylvania Journal of Constitutional Law 1147 (2008).

This article examines state and federal jury instructions regarding punitive damages since the U.S. Supreme Court's decision in Philip Morris v. Williams. In Philip Morris, the Court held that juries could not consider harm to nonparties when calculating the punitive damages award. Since that decision, the authors discovered that most states still instruct juries to consider unconstitutional factors, such as the defendant's financial condition. To address this problem, the authors suggest that juries should be advised of the constitutional limits by which their awards will be judged.

Julie Seaman, Black Boxes (electronic copy available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1352648).

The title of the article refers to both the "black box" of the human mind and the black box of the jury room. The author investigates recent technological advancements made in the area of the fMRI and describes how scientists are much closer to penetrating the black box of the human mind. From a legal perspective, she argues that these technological advances will enable jurors to know, down to a scientific fact, whether a witness is lying, and as a result, the jury's role as the fact-finder will be reduced over time. She argues instead that the jury's "hidden" function as an arbiter of law will play more of a role and that the jury's power of nullification will become the central function of the jury. Thus, the black box of the jury room will be penetrated to some degree because the public will know as a result of scientific evidence that the jury returned a verdict contrary to the facts and evidence of the case.

Shari Seidman Diamond, Destiny Peery, Francis J. Dolan & Emily Dolan, Achieving Diversity on the Jury: Jury Size and the Peremptory Challenge, 6 Journal of Empirical Studies 425 (2009).

This article analyzes two jury reforms, the size of the jury and the use of peremptory challenges, and the subsequent impact on the diversity of the jury as a result of the reforms. By collecting data from 277 civil jury trials, the authors were able to evaluate the diversity of the jury after peremptory challenges were exercised and after a six- or twelve-person jury was selected. Although attorneys tended to use peremptory challenges to strike jurors based on stereotypes, the peremptory challenges did not drastically alter the make-up of the jury because the opposing challenges reduced the effect. In contrast, when a jury had only six members, a jury was significantly less likely to have even one black juror on it. Consequently, the authors recommend restoring the 12-member jury.

Catherine T. Struve, Shifting Burdens: Discrimination Law Through the Lens of Jury Instructions (electronic copy available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1583583).

This article examines the Supreme Court's recent decision in Gross v. FBL Financial Services, Inc., which held that the burden-shifting framework in Price Waterhouse v. Hopkins did not apply to claims that arose under the Age Discrimination in Employment Act (ADEA). As the author explains, under the burden-shifting framework of Price Waterhouse, a plaintiff first needs to show that discrimination played a substantial part in an employer's decision and then the burden shifts to the defendant to prove it would have made the same decision anyway. According to the Supreme Court, one of the reasons for not applying this burden-shifting rule to ADEA claims is that juries have a difficult time applying the burden-shifting framework. However, the author argues that there is no empirical evidence demonstrating that juries find burden-shifting any more difficult than any other affirmative defense. The author suggests that by not adopting the Price Waterhouse burden-shifting analysis to ADEA claims, juries will become more confused because they will have to apply different tests when plaintiffs bring multiple claims of employment discrimination.

Tania C. Tetlow, Discriminatory Acquittal, 18 William & Mary Bill of Rights Journal 75 (2009).

The author argues that discriminatory acquittal, which occurs when a jury acquits a defendant based on the race or gender of a victim, violates a victim's equal protection rights. She explains that discriminatory acquittals support current racial and gender power structures because they allow defendants who commit certain crimes to go free simply because of a victim's race or because a female victim of rape or domestic violence did not conform to prevalent gender norms. The author compares discriminatory acquittals to discriminatory convictions, and argues that both forms of discrimination constitute state action and violate the Equal Protection Clause. Although she recognizes that defendants who have benefitted from discriminatory acquittal cannot be retried, she hopes that an acknowledgement of discriminatory acquittal will lead to better enforcement of crimes against black victims and victims of domestic violence and/or rape.

George C. Thomas III, Bigotry, Jury Failures, and the Supreme Court's Feeble Response, 55 Buffalo Law Review 947 (2007).

The author examines five criminal cases that were tried in the early twentieth century where the defendant(s) were most likely innocent but nonetheless were convicted by a jury. Although the Supreme Court intervened in all five cases, only in one case was the Court able to prevent the defendant from serving any prison time. Thus the article suggests that the Supreme Court is ultimately ineffective when a whole system of justice suffers from racial prejudice. Even today, the author believes that too many innocent people are convicted. Thus the author recommends amending current law to allow more habeas petitions to be heard if the defendant can at least make a showing of probable innocence.

Peter M. Tiersma, Redrafting California's Jury Instructions, in The Routledge Handbook of Forensic Linguistics (Malcolm Coulthard & Alison Johnson eds., forthcoming 2010) (electronic copy available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1504984).

This article is the author's analysis of the difference between California's old jury instructions, which appeared in the 1930s and 1940s, and the new jury instructions, which began appearing in 2003. A brief history of California's pattern jury instructions revealed that for a number of years jurors struggled to comprehend the instructions, until finally, after the O.J. Simpson trial, California was prompted to reevaluate its pattern jury instructions. The author then compares the old and new jury instructions by looking at the civil instructions, criminal instructions, and the death penalty instructions. He concludes that, on the whole, the new jury instructions are easier to understand, although a few problems still remain.

Peter M. Tiersma & Matthew Curtis, Testing the Comprehensibility of Jury Instructions: California's Old and New Instructions on Circumstantial Evidence, 1 Journal of Court Innovation 231 (2008).

The difference between direct and circumstantial evidence has traditionally been a difficult concept for jurors to understand. In this article, the authors use the opportunity presented by California's new jury instructions to test the effectiveness of the new jury instruction on circumstantial evidence. Specifically, using a sample of 66 psychology undergraduates from the University of Southern California, the authors gave one group of students a copy of California's old instruction on circumstantial evidence and gave the second group a copy of California's new instruction on circumstantial evidence. Both groups of students were then asked to identify whether certain scenarios represented direct or circumstantial evidence, and significantly, the group of students with the new jury instruction performed better overall (55% v. 62%) than the group with the old instruction. However, confusion still remained even with the new jury instruction, leading the authors to suggest that jury instructions should eliminate the distinction between direct and circumstantial evidence altogether.

Stephen J. Ware, Bankruptcy Law's Treatment of Creditors' Jury-Trial and Arbitration Rights, 17 ABI Law Review 479 (2009).

This article examines a creditor's right to a jury trial in bankruptcy proceedings. Specifically, the article focuses on two issues: (1) the creditor's claim for a jury trial or arbitration when the creditor brings a claim against the debtor; and (2) the creditor's claim for a jury trial or arbitration when the debtor brings a claim against the creditor. With respect to the first issue, bankruptcy law has established that when a creditor files a claim against a debtor in bankruptcy, the creditor loses the right to a jury trial, although the creditor can sometimes secure arbitration. The author argues that instead of this being an anomaly where arbitration rights are given more weight than constitutional rights, this different treatment makes sense because the debtor's bankruptcy places the creditor's claim in a court of equity rather than of law. With respect to the second issue, the author notes that this law/equity distinction explains why creditors can receive a jury trial when the debtor challenges a claim against the creditor because the debtor's claim moves from equity to law.

Michael L. Wells, Scott v. Harris and the Role of the Jury in Constitutional Litigation, Review of Litigation (forthcoming 2009).

This article examines the current confusion over the roles of the judge and jury with regard to constitutional cases. In particular, the author examines the Supreme Court's recent decision in Scott v. Harris, in which the Court made a determination as to what was a "reasonable" seizure instead of leaving the question for the jury. The author argues that this leads to confusion in the courts about whether the judge or the jury should be making determinations of negligence in §1983 cases. The article concludes by suggesting that the negligence determination should be made by a judge instead of a jury because judges are better at formulating rules that can be used by future plaintiffs to overcome the immunity doctrine in §1983 cases.

Jeffrey Zahler, Note, Allowing Defendants to Present Evidence of Prison Conditions to Convince Juries to Nullify: Can Only the Prosecutor Present "Moral" Evidence?, 34 New England Journal on Criminal & Civil Confinement 485 (2008).

In this Note, the author argues that juries should be allowed to consider evidence of prison conditions when reaching a verdict. First, the author suggests that such evidence is relevant because, in contrast to Justice Thomas's opinion in Shannon v. United States, juries consider the consequences of their verdicts. Second, under the Court's opinion in Old Chief v. United States, the door has been opened for the prosecution to introduce "moral evidence." This leads the author to conclude that defendants should be allowed to present evidence of prison conditions for the jury's moral consideration. He further argues that such a rule would lead to additional benefits such as validating the criminal justice system and motivating prison reform.