Is Pretrial Publicity Undermining Due Process?

Pretrial publicity (PTP) may have a substantially greater effect on a jury’s ability to determine facts based upon the presentation of evidence than once believed. As a result, the exposure of PTP to potential jurors may be violating the Sixth Amendment rights of Due Process. Research suggests that PTP exposure creates a so-called “anchor effect” in the minds of jurors. Essentially, the anchor effect causes all subsequently presented evidence to be viewed by jurors through the lens of media bias. Moreover, PTP further biases juries due to the fact that friends and neighbors hear the information and may have discussed the issue with the potential juror prior to jury selection.

Contrary to the position of the Reporter’s Committee Association, a recent study found that mock juries exposed to pro-prosecution PTP 14 months prior to trial had similar verdict bias to juries who were exposed to pro-prosecution bias only two weeks prior to trial. This supports the fear that PTP is not cured by the purported cooling effect of the passage of time. As a result, the findings have significant implications regarding a defendant’s right to a trial by an impartial jury. I believe the only meaningful solution to the problem of PTP biasing juries begins with journalists holding themselves to higher standards. Specifically, it may be time to rethink how trials should receive coverage and what information is ethically permissible to release to the public. Indeed, lawyers must adhere to ABA Rule 3.6 but this does not prevent journalists from unilaterally disseminating harmful and sensational information. Moreover, gag orders may prevent officers of the court from revealing trial information to reporters, but does not prevent the media from biasing the public with speculative character assassination. As a result, gag orders do little to prevent PTP which takes place before the trial phase.

The right to a trial by an unbiased jury is fundamental to the American legal system. Unfortunately, the judicial system is not capable of preserving this right by itself. Negative coverage of defendants in media creates long-lasting bias within potential jurors.  In the interest of protecting defendants’ Sixth Amendment rights it is time for journalists to reevaluate the ethics of pretrial coverage. Journalists may argue that sensationalizing trial coverage is protected under the First Amendment. However, exercising one’s right of free speech should not come at the obliteration of the right to a fair trial. If journalists are unwilling to honorably self-regulate, then perhaps courts should start using contempt orders to punish those who influence the jury with PTP. Regardless of the solution, something meaningful must be done to protect the Sixth Amendment from PTP bias.  

How to Form a Better Story? Jury Instruction's Role in the Story Model

One popular topic among legal scholars is how jury makes their decisions.  Numerous scentific models have been provided to simulate juror’s decision process.  A commonly known scientific model is the Bayesian model based on the theory of probability.  Under the Bayesian model, the jury decision process is presumed to be a rational process.  The model starts by providing a priori probability of juror’s verdict based on previous probability distribution under the circumstances, and then, “update” the juror’s projections based on new information and jury instructions.  But a fundamental flaw of the Bayesian method is that people do not always behave according to probability principles.  Moreover, the cognition of the fact is usually not a rational judgment.  More recent studies suggest that although the cognition process of a person can be categorized under the Bayesian model, this model needs to be adjusted based on the source of evidences and how the evidences are formalized. This adjustment leads to the popular use of the so called “story model” nowadays for characterizing the jury verdict process.

The theory that underlies the story model is cognitive psychology.  Under the story model, the primary process performed by jurors is the formalization of the entire story.  Studies have shown that when making decisions, jurors do not normally weigh each and every piece of evidence individually.  Instead they typically form two competing stories and decide which one is more probable.  More specificity, in their quest for facts that leads to the verdict, they typically go through three steps, which include (1) forming a story, (2) understanding the law, and (3) applying the law to the story.  But in practice, step (1) is usually more heavily weighted as a juror’s primary responsibility, as compared to steps (2) and (3).  Although a commonly known challenge of trial by jury is the jurors’ understanding of jury instruction and the relevant law.  The process of jurors learning the law in order to correctly categorize the story under the applicable law is often treated lightly.  This ability of categorizing the story is considered a skill that does not need special training, but derived from juror’s life and experience.  To ensure the continuity of evidence presentation, the judge gives jury instructions only after all the evidences are sufficiently debated between the opposing counsels.

This process, although reasonable to some extent, can be problematic from the view of cognitive psychology.  The processes of presenting evidence, cross-examinations, and court debates can last for days.  It is almost impossible to ask the jurors not to make any inferences or connecting the dots of evidences before the jury instructions are given.  When the jury instructions are provided, the jurors may have already formalized their version of the entire story.  If the story is inherently inconsistent with the jury instruction, the substantive content of jury instructions is often ignored.  Moreover, jurors may need to adjust their story to adapt to the instructions when their memory of the evidences is vague after a long trial, which makes it more challenging for them to apply the instructions against the fact they remember.  To solve this problem, providing jury instructions prior to the trial may be considered. This may help guiding the jurors to focus on important and legally relevant evidences, rather than burden them with all the details that may complex rather then complement their decision process.

Should the Jury Foreperson be Automated?

We live in a day of technological advancement. Every couple of months some new gadget comes out that will revolutionize our world. On September 9th, Apple announced its new products including the Apple Watch. This product will not only change fashion, but it could change the medical profession as well. Although this technology has the potential to change the medical profession, many medical professionals are skeptical about its impact. Similarly, technology has the potential to change the legal profession and juries in particular, but I am skeptical about this potential impact.

In An Android in the Jury Room, Matthew Donigian suggests that certain methods of choosing a jury foreperson can bias the jury and "inject inequity into the system." Because the jury foreperson often yields great power in the method of deliberation and the outcome, the foreperson must be chosen carefully. Donigian offers an alternative to a human foreperson. He suggests an automated one.

The responsibilities of the foreperson are multifaceted and include 1. Confirming that each jurorunderstands the deliberation procedures and knows that each member is allowedto ask questions s/he may have concerning the case, 2. Ensuring thatdeliberations are conducted in an orderly manner and that the discussion isopen to each member, 3. Ensuring that a jury member does not bully another, and 4.Confirming that each juror is aware of his/her responsibilities and that eachjuror is allowed to state their views and reasons as to their verdict.

In order for the foreperson to be automated, the foreperson must be able to hear the deliberations, process what is said, and use this information to direct the discussion. Apple claims that Siri understands what you say and knows what you mean. If a phone can do this, then an automated foreperson can hear deliberations, but hearing and processing are very distinct. I can talk to Siri, but Siri often misunderstands me. Just yesterday I asked Siri, “Am I happy or sad?” and Siri responded that she did not know what I meant. When I asked again she said, “I’d rather not say.” This was a simple question that only needed a one word response, yet Siri was unable to provide an answer to my question. In many ways this question is more complicated than a one word response would indicate, but this is exactly the problem. If one simple question has a complicated answer that not only involves hearing the words, but also understanding their tone and observing the associated body language, how much more does a question posed to the jury require?

A skilled foreperson will be ableto sense consensus and call for a vote when the debate has coalesced, but will a computer be able to do this? Right now computers lack the ability to understand and respond to emotions, but Donigian argues that although computerhardware and artificial intelligence software are currently incapable ofperforming the functions of the jury foreperson, this capability may not be asfar off as many think.

With this possibility comes a new round of questions. If the constitution guarantees the right to a trial by a jury of ones peers, will an automated foreperson violate the constitution? Will an automated foreperson be more efficient than a human foreperson? Will the bias that a human foreperson exhibits be lessened by automation?

Although this technology has not been created, we must make an initial decision on whether or not to pursue creating an automated foreperson. This will be a costly and time consuming task, so it will not be worth the substantial time and effort required, if the technology cannot be efficiently and constitutionally used. 

Who Should Choose the Foreperson?

In a few states the choice of who serves as jury foreperson lies with the judge rather than the jury panel members themselves. Maine, New Hampshire, South Carolina, and Arizona all allow a trial judge to choose the foreperson, while in Maryland, Massachusetts and Rhode Island a judge is required to choose the foreperson. A judge could use a number of factors in choosing a foreperson including the person’s demeanor during voir dire, how attentive he or she was during trial, the person who is sitting in a particular seat in the jury box, or perhaps how a person adds up on paper in demographic terms. A judge hand-picking someone to serve as foreperson can create concerns for the jurors and the parties involved. The juror picked by the judge could be viewed as having superior judgment to that of the remaining jurors. Subconsciously or not, the judge may pick a juror who seems to have views, mannerisms, or a background similar to his own and this could put a plaintiff or civil or criminal defendant at an advantage or disadvantage.

Judges from the states that employ the judge-selected foreperson method may argue that they choose a person based on attentiveness; however, judges have a number of other things to pay attention to during the trial, so their view of who is most focused may be slightly skewed. Another argument made in these states is that jury deliberations are more efficient if this step in the process is taken out of the jury’s hands. Based on the juror interviews performed by my classmates and myself, it never seemed like the choosing of the foreperson was a contentious, inefficient, or lengthy process. If the ability to democratically elect a foreperson is taken away from the jury panel, it makes the entire process a little more arbitrary, especially if the judge chooses someone just for where she is seated in the jury box. This arbitrariness could damage the integrity of the justice system, and in particular the jury deliberation process, by creating a less genuine and determined atmosphere in the jury room. Jurors may also perceive the person selected by the judge as superior and that his views should be given more deference and respect.

Electing a foreperson also gives the jurors a task to start with, as they may be confused or overwhelmed with what to do first. Andrew Horwitz, Criminal Defense clinic director and professor at Roger Williams University School of Law, argues that it could be counterproductive for a judge to choose the foreperson. He argues that if a foreperson is chosen without the support of the majority of the jury, it could be troublesome for deliberations. The vast majority of the states do not have judges select the foreperson. The pivotal role that a strong leader can play in the jury room—keeping the jury on track, determining how the deliberations will evolve, reigning in extremists, and communicating with the court—leads me to believe that the jurors in the room (and who have spent some amount of time around one another) are the ones in the best position to elect someone to lead them. A judge simply may not have enough information to determine who could do the best job of leading the jury in the deliberation process.

The civic and democratic process of jury duty may be further enhanced by the fact that jurors participate in their own little mini-election of sorts. People who have a say in who is elected, whether their view carries the day or not, may have less reason to question the reliability of the process and have more confidence in the system overall, than a group of twelve or six jurors who are given an indiscriminately chosen leader. Other jurors may feel less resentment about not being chosen if the foreperson is selected by the entire jury rather than not being selected by the judge from the group of twelve or six. In my view, the jury is in the best position to elect a foreperson and having them start with this small act in deliberations could improve the discussion process and ultimate decision-making ability overall.

Should there be an anonymous jury in gang related cases?

Sometimes there can be a fine line between the integrity of the process of a fair and impartial trial and the safety and concern the system has for the members of the jury. In an upcoming case, it is up to a Federal Judge to decide this difficult balance between unfair prejudice against the defendant and potentially putting the jurors at risk. A notorious street gang leader, Juan “Tito” Briseno is on trial for thirteen gang related murders and nineteen gang related attempted murders. Briseno himself is alleged to have physically participated in six of the murders and seven of the attempted murders. Briseno is facing the possibility of the death penalty for these gang related murders and attempted murders.

The government is seeking an anonymous jury, arguing that the jury members’ identities in this case should be kept secret to protect the jury members and their families from gang members. Briseno’s gang is known to be a “particularly violent and vicious street gang, who go to extreme lengths to shoot and kill those who are viewed as threats.” The prosecutor argued to the court that this gang shot a former gang member for allegedly cooperating with law enforcement officials and voiced his concern about what other gang members might do if they were able to access the jurors’ personal information. The defense attorney on the other hand, argues that “jurors could be prejudiced against his client if such action is taken. He indicated jurors could think their identities are being kept secret because Briseno already has been determined to be a particularly dangerous person.” Judge Philip Simon cited an opinion stating that “an anonymous jury ‘is an extreme measure,’” he went on to explain that “it should be done only when some type of jury tampering is likely to occur.”

This article raises some controversial issues. A defendant is entitled to an unprejudiced and fair trial, but what is not clear is at what costs? If the court can determine that it is an undisputed fact that he is in fact a member of this gang then I believe the juror’s identities should be kept secret if the court finds that there is a true potential risk or threat to the jury members. Jury members are performing their civic duty to help the justice system; our system already has a difficult time trying to get people to perform their civic duty. If the judge was to not keep their identities secret and something was to happen to one of them because of their duty, thousands of people would be scared to fulfill their civic duty. Although this may cause some prejudice to the defendant, the court may be able to instruct the jury in a way that lowers the potential for prejudice against the defendant himself. The court may be able to instruct the jury that due to the sensitive nature of the case their identities will not be made public. The jury’s main focus would still be to decide if he actually participated in these murders and if the evidence supports these claims. I think the jury would have an easier time trying to make this decision knowing that their identities were not being made public.

THE RIGHT TO DEMAND A JURY TRIAL FOR INEQUITABLE CONDUCT

In the 2006 case of Agfa Corp. v. Creo Products Inc., the Federal Circuit took away the right to demand a jury trial on the issue of inequitable conduct. ¹  Inequitable conduct is a defense to patent infringement based on the doctrine of “unclean hands”² and occurs when a party knowingly fails to submit prior art to the United States Patent and Trademark Office (“USPTO”).  To prove inequitable conduct, a party must show by clear and convincing evidence that (1) the withheld prior art is “material” such that the USPTO would not have allowed one of the claims in the patent application if it had been aware of the undisclosed prior art, and (2) that the patent applicant knowingly withheld the material prior art from the USPTO with an intent to deceive.³   

Though the line between what constitutes a question of fact and what constitutes a question of law is often blurred, courts have long held that intent is a question of fact to be decided by a jury.⁴  Juries decide intent because it involves analyzing the subjective knowledge within one’s head to determine the credibility of a witness.  In cases involving inequitable conduct, witness credibility is critical to finding intent in cases involving inequitable conduct.⁵  For example, the patent applicant’s personal testimony may be crucial to finding whether the applicant intended to deceive the USPTO by not disclosing prior art, and expert testimony from patent office experts or outside experts offering technical declarations may also be involved.  And the weight given to these types of witness testimony will be based on the believability or persuasiveness of the testimony.⁶  A judge is in no better position that a jury to determine whether the applicant or expert is lying or telling the truth based on factors such as facial expressions, tone of voice, aversion of gaze, and general nervousness.⁷

If credibility determinations have exclusively been the role of the jury,⁸ then why are judges insisting on usurping the jury’s role in weighing witness testimony?  One reason could be related to the Lake Wobegone effect, a natural tendency to overestimate one’s own capabilities.⁹  A judge may in good conscience believe that he will get it right and the jury will get it wrong.   But studies show this to be inaccurate, at least as it relates to probability data.¹⁰  Research studies suggest that while jurors often make poor inferences from probability data, judges are no better.  After performing a series of case studies, the National Research Council demonstrated that judges frequently misinterpret statistical information.¹¹  These studies further suggest that judges are not superior to jurors in assessing scientific evidence; there is simply “no evidence that juries are incompetent to evaluate expert testimony.” ¹²  As such, the ruling for Agfa Corp. v. Creo Products, Inc. should be overturned, and the right to demand a jury trial in cases of inequitable conduct should be reinstated.