Juror’s Take on the Insanity Defense

The insanity defense can be very controversial and often receives a lot of media attention when used in criminal trials. The reason for the controversy is because by using the insanity defense, the criminal defendant is admitting to the action but declares a lack of culpable mind due to mental illness. Thus, the assertion is that the defendant acted with the requisite actus reus but not the requisite mens rea to be convicted of the crime. The idea of the defense in general is conflicting because the defendant admitted to committing the criminal act. However, the act was done alleged to be done without the defendant understanding the action was wrong.

The law surrounding the insanity defense has changed numerous times throughout the years resulting in several standards. The change in standard is relevant because standards effects how the jury is instructed. The evolution of the insanity defense has allowed researchers to study how each standard has been perceived by jurors. The key research question being whether the change in standard influenced jury decision making. The answer, surprisingly, is not really. The studies show that jury decision making has not been substantially affected by the change in the insanity defense standards. Even more shocking, the control experiments, that is jurors who were given no instructions compared to jurors who were given instructions, exposed that those who were given no instructions did not seem to significantly differ in their decisions. That is, the jury still comes to the same conclusion regardless of instruction or lack thereof. 

Scholars reason that this result occurs not because jurors do not consider the instructions, but because jurors will always interpret cases of insanity based on their own understanding of mental illness and the insanity defense. Most jurors have a commonsense understanding of mental illness that they employ when determining whether the defense is valid or not. Thus, it is important to assertion what that common understanding may be.

Professor Michael Perlin identified eight myths the public has about the insanity defense. One, the belief that the insanity defense is overused. Two, defendants who plead insanity are usually faking. Three, the insanity defense is used almost exclusively in cases that involve violent crimes. Four, pleading not guilty by reason of insanity is a strategy used by criminal defense attorneys to get their clients acquitted. Five, there is no risk to the defendant who pleads insanity. Six, trials involving a not guilty by reason of insanity defense almost always feature battles of the experts. Seven, not guilty by reason of insanity acquit-tees spend much less time in custody than do defendants convicted of the same offense. And lastly eight, not guilty by reason of insanity acquittees are quickly released from custody. None of these myths are true and each display the misguided understanding of everyday individuals.

Attorneys should understand the weight the jurors own understanding has on cases in which the insanity defense is used. Voir dire during these cases should focus on determining what understanding the potential juror will bring to deliberations. 

What Jurors Want and Need from Expert Witnesses

Jurors make important findings at trial. The jurors gather their information by listening to each counsel’s arguments and hearing from the witnesses each party calls at trial. Cases will often require counsel to call an expert witness to the stand to give a professional opinion about the case or explain a complex issue in a case. Expert testimony can be complex and confusing. It is important that jurors, individuals who have not been studying this case for months like counsel has, understand the expert witness’s testimony. This is especially true because the opposing party will typically call their own expert witness to testify a conflicting opinion to the other expert’s testimony. Thus, experts and lawyers need to know what juror’s want and need from the expert’s testimony. 

Put simply, jurors want to understand what the expert is saying. In order to achieve this, experts should structure their testimony in story form. Studies show that jurors process information presented at trial by constructing a narrative story. Gaps in the story will be filled by the juror from their own, non-expert knowledge and experiences. Jurors want a relevant, coherent, understandable story that keeps them engaged. The expert should speak in clear and unambiguous terms. Experts should strive to use common, everyday vocabulary to explain complex material. If the expert struggles to find the proper words to explain or illustrate a matter, analogies and more simple examples may help the expert get their point across more easily. Visual aids and hands-on demonstrations used modestly also aid in the juror’s understanding of the expert’s testimony. 

Experts must find the right balance in their presentation style. Jurors do not want to be lectured to, that is spoken to as if he or she signed up to attend a university course session on this subject. Experts should strive to teach and not lecture. Jurors are smart and competent individuals that just simply may not have knowledge in the expert’s particular field of study. Lastly, experts should be aware of their appearance, body language, and gestures. Research shows that the more confidence an expert exudes, the greater credibility their testimony is given. An expert that is able to increase their perceived level of confidence in the eyes of the jury when they consistently make eye contact with the jurors. With regard to appearance, experts should dress professionally. The positioning of the witness stand in most courtrooms gives the expert a leg up when it comes to perceived confidence because the stand is typically elevated above the jury box. The expert sits on the elevated witness stand with their back and shoulders visible giving them a commanding and authoritative presence. The expert should sit with proper posture to appear as such. Expert’s gestures should be kept to a necessary minimum so as to not distract the jurors from the spoken words. 

Although this seems like a lot for the expert to remember, most people, especially experts experienced in giving testimony, have naturally learned these techniques and employ them. For a more detailed discussion of general juror’s learning styles, click here.

Keep Your Hands Inside the Jury Box at All Times: Juries Touring the Scene for High-Profile Cases

     Florida Circuit Judge Elizabeth Scherer has recently ruled that the jury in the Parkland school shooter case will be permitted to tour Marjory Stoneman Douglas High School, the place where 23-year-old Nikolas Cruz killed 17 students more than four years ago. Cruz's lawyers presented a defense argument that a jury tour of the three-story building at the high school is not necessary because there are "videos and photos of the crime scene and would only serve to inflame the jurors’ passions." Judge Scherer, however, ruled that the probative value of the tour is not substantially outweighed by its prejudicial effect. Although the jury is not being asked whether or not to determine if Cruz actually committed the murders because he took a plea of guilty, but rather whether or not he should be given the death penalty, the prosecutors want the jurors to take the same path that Cruz took through the building "to understand the carnage he unleashed as he walked methodically floor-to-floor, firing his semi-automatic rifle as he went." 

    While it may seem unusual for juries to tour crime scenes because this is not seen often, either side is permitted to request a tour if they believe it would help members of the jury to better understand the case. In fact, this is not the only high-profile case in which the jury has been given a tour of the crime scene. Many people may remember that in February of 1995, the jurors in the O.J. Simpson trial also took a tour of the crime scene, traveling in a 14-car caravan to the scene of the murder and then to Mr. Simpson's Brentwood estate. They were accompanied by motorcycle police officers who shut down freeway on-ramps so that the jury could ride unimpeded to Brentwood on the Sheriff's department bus, where they ate boxed lunches and chatted as if on a field trip. In contrast to the intended purpose of the tour in the Parkland trial, both the prosecution and the defense had reasons that they wanted the jury to see the scene of Ronald Goldman and Nicole Brown Simpson's murder. The prosecution wanted the jury to see how small the area was in order to negate the defense's argument that two assailants, not one, had committed this crime, while the defense wanted to use the visit to confront jurors with the more "positive" aspects of Simpson’s life, like the family photographs throughout the home, and his "room full of trophies given for his achievements on and off the football field." The jurors also visited Nicole's apartment, Ron Goldman's home, and the restaurant where he worked. They were not allowed to comment or ask questions during the tour, and at each stop were escorted by sheriff's deputies and lawyers for each side. 

    So what should we make of jurors being allowed to tour the scene of the crimes in question during their trials? On the one hand, it is important for jurors to understand the full gravity of a situation, especially in a case like the Parkland shooting, where 17 innocent children lost their lives and blood stains and bullet holes remain intact. On the other hand, it does have the opportunity to be prejudicial or biased- in the O.J. Simpson case, for example, Mr. Simpson's home had been virtually untouched since his arrest, allowing jurors to see elements of his personal life and humanity that they otherwise would not have seen. In sharp contrast, Nicole Brown's house was up for sale and stripped of any personal effects or reminders of the mother and children who once lived there. 

Celebrity Jurors Causing Courtroom Drama

Being famous is not a recognized exemption from serving as a juror in the United States. Even celebrities and (former) presidents are summoned for jury duty. A-Listers that have reported for duty include supermodel Gigi Hadid who was called to serve on the jury for the high-profile rape case against Harvey Weinstein. Anna Kendrick's even live-tweeted her 2015 jury duty experience. That same year, Brad Pitt eagerly reported to an L.A. courthouse on his 51st birthday ready to serve but was dismissed for being too distracting. The political elite must also participate. After missing five jury summons, Donald Trump was sent a $250 fine before reporting for duty and being dismissed. Former President George W. Bush appeared for duty in Dallas in 2015 but was excluded by the judge since his secret retinue could "undermine our efforts to keep the case focused quietly on the evidence." In a similar vein, former President Barak Obama was summoned to serve on a jury in his hometown of Chicago in 2017. The Chicago native was dismissed with half of the other jurors by a random draw before lunch and was sent a check for $17.20 for his time. While most attorneys would have issues with putting a former president on a jury in their hometown, these former presidents remind us by showing up for jury duty that they have no special privileges when it comes to jury duty and they are just like us. As Justice Felix Frankfurter said, "In a democracy, the highest office is the office of citizen." All these A-Listers displayed their willingness and eagerness to report for duty, whether or not they got to serve. 

While most celebrities don't make it to the jury box because of their potential to distract, Oprah Winfrey, one of the most famous people to ever have existed, made it past the jury summons stage and served on a jury that convicted a Chicago man for murder. Oprah not only served but went on to discuss her experience and interviewed her fellow jurors on her talk show. But aside from the distraction of having a celebrity juror sit in the jury box, should celebrity jurors be prevented from serving because of the undue influence they may wield over other jurors? 

The Oprah Effect: Weighing Celebrity Influence on Juries 

A study examined whether a celebrity juror would persuade participants to support their verdict more than a non-celebrity juror and whether celebrity jurors would interfere with participants' abilities to consider case facts independently. This study found that celebrity jurors' opinions influenced participants' decision-making process and that celebrity jurors were more likely to be elected as forepersons. When participants were told that Oprah Winfrey voted for the death penalty, other participant jurors also voted for the death penalty. Oprah's death penalty vote made it harder for participants to be impartial and evaluate case facts properly. Researchers speculated that participants viewed Oprah as a compassionate and generous individual based on her public image. But the participants' ideas about Oprah clashed with her death penalty vote, which may have affected their sentencing decisions and ability to assess the facts of the case. The contradiction between the participants' schema of the celebrity and their sentencing decision may have caused the participants to pay more attention to a celebrities' individual preferences without weighing the facts of the case themselves. This schematic violation can infringe upon a defendant's right to be judged by an impartial l jury and should be studied further. A limitation of the study is that the participants read celebrity jurors' sentencing decisions and opinions which could impact potential jurors differently than serving on a jury with a celebrity juror where they have the opportunity to discuss the case with the celebrity juror.

 

Michael Jackson Jurors Speak Out in New Series

Almost 12 years after Michael Jackson was found not guilty of all charges brought against him in a 2005 child molestation trial, four jurors and one alternate speak about their experience and the public backlash they faced after they reached the verdict. The media frenzy and controversy surrounding the pop legend and trial will forever be etched into our collective consciousness. Despite the 24-hour news coverage of the trial, the public was left in the dark about the prosecution's actual case. In For the Defense with David Oscar Markus, Thomas Mesereau, Michael Jackson's defense attorney, recounts how the media repeatedly failed to present accurate case depictions. While many believe that many high-profile criminal cases are won in the press, Meserua highlights that

history tells us differently. In a blog on his website Meserua writes: 

“For those who are convinced that public relations and media contacts decide the outcome of high-profile cases, please direct your attention to exhibits A, B, and C: O.J. Simpson, Robert Blake, and Michael Jackson, respectively. The media convicted all three defendants in these high-profile cases before the jurors deliberated. Instead, they were all acquitted. Media spin does not correlate with courtroom success.” 

The Media Got it Wrong

Behind closed doors, jurors had access to all the evidence. The prosecution had to prove that Jackson was guilty of sexual misconduct with Gavin Arvizohe when he was 13. During jury deliberation, all 12 jurors “agreed that the prosecution failed to prove that Jackson had committed a crime against Arvizo.” Speaking at the South Carolina Trial Lawyers Association’s annual conference, Mesereau stated that “Our juries are stronger than the media,” he said. “That is why the media is wrong so often in high-profile trials.”

So how could the media have got it so wrong in Michael’s Jackson Trial? 

Jurors from Michael Jackson’s infamous trial are shedding light on how the media spin did not correlate to what was happening in the courtroom. In a new true-crime series, four jurors (Paulina Coccoz, Ray Haltman, Tammy Bolton, Melissa Herard) and one alternate (Joseph Gastelo) detail their experience serving as jurors on the Michal Jackson trial, the key testimonies that shaped their understanding, and their experience after the jury verdict was announced. While the jury was initially divided, those leaning towards guilt did not have enough evidence to support their position. The jurors also discussed how they found Gavin Arvizo’s initial testimony to be unconvincing but it was the prosections' additional use of video testimony from Gavin Arvizo that cemented the juror's belief that Jackson was not guilty. 

After the Verdict  

Many of the jurors faced public scrutiny during the trial. Within 18 months after the trial, Melissa Herard, dubbed “The Fat Juror,” underwent gastric bypass surgery due to the public interest in her weight. Many jurors also received anonymous death threats and experienced conflict with family members dissatisfied with the jury verdict. One juror had the wheels on her car loosened after stepping away from her vehicle. The jurors also reiterated that if they were to hear the evidence today, they would still acquit Jackson of all the charges and that the prosecution ultimately failed to prove their case. 

HOW TO: Appeal to Jurors of All Learning Styles

Jurors are fact finders. The jurors must determine what facts the evidence has established. Once the jurors have decided what facts they determine to be the truth of the case, the jury will make conclusions based on that truth. In a criminal case, the conclusion made is whether the defendant is guilty or not guilty. And in a civil case, the conclusion will determine whether the defendant is liable or not liable. Thus, to receive a favorable conclusion, it is important that jurors are able to process the evidence you present and recall it during deliberations. In order to ensure jurors are processing and retaining the evidence you present to them, one must understand how jurors learn.

There are four core learning styles: visual, auditory, reading and writing, and kinesthetic. Juries may be made up of individuals with any of the four learning styles. Thus, it is important for attorneys to present the case in a way that caters to multiple learning styles because we want the jury to recall more of the evidence you present. Studies show that jurors process the evidence and inferences presented to them by constructing a narrative story. If the story has gaps, jurors provide that information themselves to complete the story. Therefore, the attorney’s goal should be to tell a story that make senses and has little to no gaps in the timeline. The attorney that makes it easiest for the jurors to construct a story will most likely prevail. The attorney does this by transferring the information in modes that cater to different learning styles.

Attorneys can achieve greater information retention among jurors by presenting their information in chronological order, with graphics-based exhibits, demonstrative evidence, repeating important facts throughout the trial, and emphasizing the themes at every opportunity. Some jurisdictions allow jurors to take notes which greatly caters to reading and writing learners. However, this may not be the case in your jurisdictions, but if it is, see here. Presenting the information in chronological order allows the juror to piece the story together more easily because it is told essentially in a story form. Further, using graphic-based exhibits and demonstrative evidence keeps the jurors engaged and allows the visual learner to physically see what you are attempting to illustrate. Lastly, repeating facts and emphasizing themes throughout the presentation is helpful for auditory learners. The juror is given lots of information to process as well as conflicting arguments, thus by repeating the keys pieces of evidence that are favorable to your case, the jurors will be more likely to recall that evidence and use it against the conflicting evidence presented.

Attorneys should evaluate their presentation and determine where he/she can effectively add the above presentation tools to aid in the juror retaining more of the information presented. These are helpful tools especially useful when an attorney is attempting to explain complex information in highly technical trials. For greater discussion of this topic, please see here.

Gender and Juries: Where Are All the Women?

The Supreme Court reaffirmed the value of diverse juries in Smith v. Texas when the Court held that juries are instruments of public justice and should genuinely represent the communities they embody. The history of women serving on juries is one of exclusion that mirrors the experiences of black people and other minorities in this country who have been excluded from jury service. With the landmark case of Taylor v. Louisiana in 1898, Utah became the first state to allow women to serve on juries. It wasn’t until the Civil Rights Act of 1957 that congress provided that all citizens were fit to serve as jurors, regardless of state law. 

But these landmark decisions did not create a positive right to have women on a jury when the party or accused defendant is a woman. And while the Sixth and Fourteenth Amendments of the constitution prohibit the exclusion of individuals from a jury based on race or gender, they do not require a diverse jury. Even a procedural safeguard like the Batson Doctrine, which limits the state's use of peremptory strikes because of a jurors race, has its limitations. At its best, the Batson Doctrine addresses overt racial discrimination by the state during jury selection but is criticized for not being robust enough to deal with subtle racial discrimination.

A Jury of Her Peers 

The Supreme court broadened Batson’s scope to exclude peremptory challenges based on juror’s gender and held that the use of peremptory challenges warrants heightened scrutiny afforded to all gender-based classifications. This decision is criticized by many for prioritizing the potential harm to jurors who are excluded from the jury and ultimately harms criminal defendants at the center of a trial, especially women. Did the Supreme Court miss the mark by extending Batson protections to gender? Yes because despite their noble efforts, the Supreme Court didn’t get it right. Under the banner of preserving diversity, the Supreme Court was able to prevent a woman from using peremptory strikes to advocate for herself to ensure that a jury of her peers contains as many women or people of her choosing as possible. This decision singles a progressive rule change towards gender acknowledgment but fails to account for the actual problems affecting women in the legal system. Justice O’Connor in a departure from the majority’s reasoning in J.E.B. v. Alabama cited the importance of gender differences in juror's attitudes in rape cases and noted that “[O]ne need not be a sexist to share the intuition that in certain cases a person's gender and resulting life experience will be relevant to his or her view of the case... “Will we, in the name of fighting gender discrimination, hold that the battered wife - on trial for wounding her abusive husband - is a state actor? Will we preclude her from using her peremptory challenges to ensure that the jury of her peers contains as many women members as possible? I assume we will, but I hope we will not.” 

Gender Dynamics and jury Deliberation

Even when women make it onto a jury, gender norms prevent women from engaging effectively which compromises the effectiveness of the jury trial. Social scientists highlight the importance of the diversity of ideas as creating impartiality on juries. Many courts have used juror handbooks, voir dire, and videotapes to educate the jury about the effects of gender dynamics on the deliberation process and to encourage women to speak up. These efforts fall short and also miss the mark. Instead of addressing larger gender dynamics in our society, these methods simply ask women to change their behavior and lean in more. The courts are taking steps in the right direction to address the lack of participation of women on juries. But it will take more than a couple of pamphlets to upend decades of gender discrimination in the legal system, especially when a woman's ability to dictate who serves on her jury can be so limited in scope.

The Cost of Jury Service: "Wait, I have to pay for parking too?"

You get a ten-dollar raise! 

        For thirty years, federal jurors were compensated forty-dollars per day served. After complaints about juror pay equating to a salary below the federal minimum wage, lawmakers decided to give a pay raise in 2018. A pay raise of...wait for it...ten dollars. Lawmakers explained that "while juror compensation was never meant to serve as a substitute for a salary, raising the daily rate would provide some small relief." Ironically, trial by jury is one of the most cherished pillars of our criminal justice system. Yet, we neglect our responsibility in ensuring that those who participate in jury service are not financially burdened. 

    Elliott Negin calls attention to this issue by noting that we recognize jurors are underpaid. Yet, juror raises do not account for inflation or have increased as drastically as Congress's salary. Negin notes that "if Congress paid grand jurors 80 percent more than what it paid them in 1990, grand jurors would get $72 a day for the first 45 days and $90 a day thereafter." 

Wait, I have to pay for parking too?

        Unfortunately, in the great state of Texas, juror pay ranges from six dollars to fifty dollars a day. It's also not uncommon to be required to pay for parking. In my experience, Dallas county parking starts at ten dollars a day, so theoretically, if I were to serve for a day and get paid six dollars, I'm already at a negative value. 

        Unfortunately, this is something that thousands of citizens experience daily. The fact remains that jury duty can be a substantial financial burden. Those unemployed are unable to spend their time looking for a job; caretakers of children are forced to find and likely pay for daycare/transportation; those surviving paycheck to paycheck literally do not get a livable wage. The list is endless. 

What do we do?

        While I do agree in some respect that juror compensation is not intended to be a substitute for salary, we cannot expect citizens to value jury service if it places a tremendous financial burden. Even more concerning is the impact this has on actual executions of trial. Trial consultant Douglas L. Keene recognizes that angry or irritated jurors adversely affect plaintiffs' lawyers in civil suits because the plaintiffs are "more likely to be blamed by the jurors for any inconvenience that jury duty caused them." 

        So what do we do? We can start by recognizing that jury duty often imposes a financial burden on citizens, especially in marginalized communities. We can then follow in the footsteps of San Francisco and create new systems where we make accommodations for those in most need. San Francisco is implementing a pilot program, "Be the jury," which compensates low-income jurors a hundred dollars per day of service. To qualify, you must earn less than $76,000 a year and must not be compensated by your employer for jury duty. This program also aims to remediate the issue of lack of diversity in jury composition since studies show that diverse juries make better decisions. 

Trial by Jury: Immersive and Interactive Performance as Public Practice

    In a multitude of respects, trial by jury shares countless inherent attributes with interactive theater. Although this popular performance genre is notoriously difficult to define in all-inclusive terms, at its foundation, "interactive" (or "immersive") theater is a category of performance whose structure is characterized by active, physical relationships between audience and production. It often makes use of site-specific performance venues around which audiences are free to roam, and its doctrine dismisses divisions between visual art, live art, and theatre while promoting exploration and imagination.

    Interactive theater techniques are especially evocative when applied in the context of Performance as Public Practice, which is an avant garde interdisciplinary and intersectional approach to creating theater that often seeks to raise awareness and propose solutions issues of social justice. It unconventionally defines performance in varied and wide cultural contexts and focuses on the historical development, artistic significance, and practical applications of theater techniques in public spheres. With these staging techniques and approaches in mind, we can begin to consider the ways in which the accuracy and fairness of civil jury trials may be improved by enhancing juror understanding, engagement, and overall experience. 

    According to the Honorable Judge Mark I. Bernstein, both trials and live theater educate as they persuade by linking a series of events that appeal to human emotion. Bernstein posits that both trials and theater afford us the opportunity to scrutinize private details of others' lives and to learn from them while attending to cathartic and voyeuristic needs. However, he also points out that examining jury trials as theatrical events is not a novel undertaking. For example, consider classical Grecian trials, which were political events that employed juries numbering in the hundreds; the Salem witch trials and their equal focuses on justice and ridding society of taboo, macabre conduct; and early colonial Massachusetts trials which provided the primary source of community entertainment, since stage plays were illegal in the state until the 1790s. 

    Theatrical theorists and scholars agree that movement, storytelling, real spaces (opposed to proscenium stages), and interactions help build engaging and transformative experiences for audience members. In the parallel world of civil jury trials, jurors enter the courtroom and are seated in a jury box, which occupies real space within the action of the proceedings. Judges and other courtroom staff provide procedural and structural confines in which parties, witnesses, and attorneys craft narrative stories to present the legal and factual bases of a matter. When every element of a given story is presented, jurors move from the courtroom to a separate space for deliberation by interacting and debating with one another. When these interactions eventually produce a decision, jurors move back into their space within the action to take part in influencing the story themselves by standing to deliver a verdict. In these respects, civil jury trials closely resemble immersive and interactive theatrical performances so that it is a useful exercise to apply suggestions for making great immersive theatre to improving juror experiences. 

    In his book Creating Worlds: How to Make Immersive Theatre, Nick Hern suggests that creators understand and anticipate audience behavior, plan and influence movement through real space, and balance interaction with narrative. Proceeding under the theory that improved juror experience during trial yields more accurate verdicts, attorneys should understand and address jurors informational needs, plan for the ways in which juror minds and senses will explore the courtroom space, and carefully connect the number of direct addresses made to jurors with the legal and factual narrative.   

What Is One Day One Trial and Why It Should Be Standard for All Courts

Photo by Timothy L Brock on Unsplash

One Day/One Trial jury duty service systems are becoming increasingly common across the United States. Dallas County, for instance, was one of the first jurisdictions to implement the system for jury duty[1]. It started even earlier in Harris County, Texas in the 1970s[2], but some jurisdictions had not implemented this system heading into the 21^st Century.[3] One Day/One Trial (sometimes referred to as ODOT) is a jury selection process where if you are not selected to serve on a jury the day you report for jury duty, you will be released to go home unless the trial court instructs you to return.[4] One Day/One Trial, and shorter jury services in general, can benefit both the juror and the justice system as a whole.

Benefits to the Juror

One Day/One Trial system benefits both employees serving on juries and employers. Employees will lose less potential income because they will have a definitive and shorter time frame they will be serving as a juror for.[5] Likewise, employers will have an easier time finding a substitute for that employee.[6] In this way, the One Day/One Trial system expands representation on juries by making it easier for everyone to serve as a juror because barriers like taking time off work and losing income are lowered.[7]

Jurors also benefit from the One Day/One Trial by having more opportunities to serve on the jury, which can be a positive and educational act of civil service.[8] A study done in the late 1980s showed that, while more people were significantly more likely to sit on only one voir dire in a One Day/One Trial system, there was only a slight decrease in the number of people who were selected to sit on a jury – meaning that more people overall had the opportunity to serve as jurors.[9]

Benefits to the Justice System

One of the primary benefits of the One Day/One Trial system is the increased diversity of jury pools that it offers.[10] As mentioned earlier, One Day/One Trial systems ease the burden of taking off work and allow more people a chance to be on a jury.[11] It also captures a broader cross-section of the workforce because it allows sets a certain time that potential jurors can schedule to be off.[12] A diverse jury pool and diverse juries are broadly recognized to lead to a healthier, fairer justice system.[13]

A One Day/One Trial system also increases the overall effectiveness of the justice system. First, despite some concerns from critics, One Day/One Trial systems have actually been shown to keep overall costs down and costs per juror down – even though more jurors are being summoned.[14] Costs are lowered both overall and per juror, because costs associated with summoning and training jurors are lower than costs associated with continually covering maintaining jurors who are serving, like parking or travel, food, lost wages, etc.[15]

But more than that, jurors have reported being more engaged and attentive during the process and are more likely to appear when summoned because jurors know they will only be held for one day or one trial.[16] While concerns over losing ‘veteran jurors’ have been raised in an argument against the One Day/One Trial system, fresh jurors are often less cynical, more cooperative, and approach trials they are placed on with a fresh perspective unaffected by the last trial.[17]

Overall, a One Day/One Trial system brings many benefits with it while having little downside. A One Day/One Trial system can increase diversity in the jury pool by lowering barriers to serving on juries, like lost wages and time. The One Day/One Trial system can also increase juror engagement and satisfaction during the process while keeping costs to the justice system down. The benefits stand for themselves, and every jurisdiction could likely benefit from using the One Day/One Trial system.

---

[1] Dallas County, Jury System, (last visited March 15, 2022).

[2] G. Thomas Munsterman, Evaluation of One Day/One Trial Term of Jury Service, National Center for State Courts (February 7, 1990) at 1.

[3] Hon. Jacqueline Connor (ret.), What One Day One Trial Means to You, CAALA Advocate Magazine (Oct. 2007).

[4] Dallas County, Jury System, (last visited March 15, 2022).

[5] Stephen Michael Tow, Fact Sheet: One Day or One Trial Jury Service, Judicial Council of California (January 2022; Originally created January 2016).

[6] Id.

[7] Terry F. Holtrop, An Evaluation of the One-Week, One-Trial Juror Term of Service for 17^th Circuit Court for Kent County, Michigan, Institute for Court Management Court Development Program (May, 2004) at 43.

[8] Munsterman, Supra at 3.

[9] Id.

[10] Holtrop, Supra at 28.

[11] Id. at 43.

[12] Munsterman, Supra at 5.

[13] Ashish S. Joshi and Christina T. Kline, Lack of Jury Lack of Jury Diversity: A National Problem with Individual Consequences, American Bar Association (September 1, 2015).

[14] Holtrop, Supra at 33-34; Munsterman, Supra at 10-11.

[15] Holtrop, Supra at 33-34.

[16] Holtrop, Supra at 40-41; Munsterman, Supra at 6.

[17] Holtrop, Supra at 40-41, 49, 53; Munsterman, Supra at 6.

The Significance of Unanimous Jury Verdicts in State Criminal Trials

Just like most of the famous movie scenes, there is a lot of drama surrounding the jury's deliberation. There are many factors at play including but not limited to: the jurors and their backgrounds, the evidence presented at trial, the popularity of the case, and the subject matter may be too gruesome for some. Nevertheless, the unanimous jury verdict has been a strict requirement for federal criminal proceedings.

The Sixth Amendment guarantees a criminal defendant the right to an "impartial" jury. The Constitution does not clearly use the word "unanimous." However, the majority of state courts have held that impartial means a unanimous jury verdict. 

But history shows that individual states have convicted defendants with non-unanimous jury verdicts. These decisions seem to trend 10-2 in favor of conviction. Some of these criminal defendants were sentenced to life without parole on a nonunanimous jury decision. Specifically, Louisiana and Oregon are the only states that were still allowing these decisions. At the state court level, Mr. Ramos committed a serious crime and was convicted to life without parole by a 10-2 jury decision. He appealed the lower courts' rulings all the way up to the Supreme Court. Mr. Ramos argued that "his conviction by a nonunanimous jury as an unconstitutional denial of the Sixth Amendment right to a jury trial."

Recently, in 2020, the Supreme Court, in Ramos v. Louisiana, finally ruled that states must obtain unanimous jury verdicts to convict state criminal defendants. While this is a giant step forward, there is another case pending before the Supreme Court that asks them to decide whether their Ramos decision applies retroactively. "That's why more than 1,500 people in Louisiana are still imprisoned on non-unanimous verdicts-- a law that originated in the Jim Crow era to reestablish the supremacy of the white race." In the Ramos opinion, the Court contemplated the pros and cons of this decision that overruled prior precedent, Apodaca v. Oregon, and concluded that the pros outweigh the cons here. Following that line of reasoning, it seems like the Court is attempting to make up for its prior mistakes, which means this ruling should apply retroactively.

Concurring in the Ramos decision, Justice Kavanaugh articulated his own test for determining when it is appropriate to overturn a previous constitutional decision. He drew a distinction between statutory and constitutional cases. He said that the legislature can amend statutes, but it is up to the Supreme Court to apply the doctrine of stare decisis broadly. The only other way a constitutional interpretation could be amended or corrected would be through a formal constitutional amendment which is extremely unlikely.

The main takeaway from Ramos is that ALL states must tell juries their decisions need to be unanimous to convict a criminal defendant in order to protect their Sixth Amendment right. Since the majority of states already followed this rule, it is not much of a change. But for Louisiana and Oregon, they have to amend their criminal procedure. Additionally, the Supreme Court relied on the incorporation doctrine to ensure federal rights apply across all states. 

Now all criminal defendants can know for sure that the jury on their case would fairly and equitably make their decision based on all facts presented during trial. This is a huge step in the right direction!

How Social Media can be Used as a Tool to Learn More About Jurors

Photo by Nathan Dumlao on Unsplash

            You might not be able to make 500 million friends without making a few enemies along the way,[1] but you can learn a lot about all your friends and enemies from what they post on their Facebook or Twitter page. So, what can lawyers learn about jurors through social media, and what problems might arise from using social media sites to learn more about jurors and potential jurors?

At first, using social media data can be a daunting task to learn more about jurors – and even more so when it comes to potential jurors in preparation for voir dire.[2] Extensive data is compiled across different sites, and it can be simply inefficient to sift through it in certain circumstances.[3] For instance, if names of veniremembers are only given shortly before voir dire begins, too much time would be spent just trying to verify that the social media account was the correct one to even begin learning anything from it.  But there can still be a lot to gain from social media, even as a simple jumping-off point, in both jury selection and insight on the selected jury.

Jury Selection

People love to post on social media about everything from their thoughts on national issues to the best Thanksgiving recipes. While some of this information might not be useful, a lot can give attorneys more insight on who they might be selecting to be on the jury panel. Of course, during the jury selection process, voir dire, there might not be much time to dig through posts on specific topics.[4] But even still, things like a person’s relationship status, job, religion, political leanings, and education may all still be listed on a person’s Facebook profile page.

Another aspect of social media that can give attorneys quick insight into potential jurors during, or in preparation for, voir dire is the jurors' interactions on the social media site with others and other posts.[5] Twitter, for instance, allows other users to see the posts a public profile has ‘liked.’ Facebook’s post interaction is more robust and may potentially offer more insight than Twitter’s simple ‘like’ feature because Facebook allows for potential jurors to not only like, but love, dislike, indicate sorrow, or even laughter. Interactions with posts like local news articles or opinion pieces, especially relating to the topic the trial may center on, can give attorneys a powerful glance into a potential juror’s feelings.[6] This information can create a great starting point to begin tailoring voir dire questions and gain a jump start on understanding the potential jurors a little better.[7]

Gaining Insight on the Jury

When trying to gain insight into jurors' and potential jurors’ beliefs and backgrounds, a tailored approach and filtered approach yield the best results.[8] But this often requires time and resources that aren’t available during jury selection, but those resources may be at hand once the jury is set. At that point, the data serves to guide arguments, trial strategies, and strategies on evidence presentation.

Jurors may indicate things about their interests or beliefs that can be used to craft appealing trial themes, allegories, or stories that relate to the juror’s interest to better tell your client’s story.[9] This is also an opportunity to take a juror that you believed to be apathetic or unfavorable to your side during voir dire and find something that will relate to the juror, ultimately making them now sympathetic to your case.[10]

Going past social media can also be extremely helpful post-selection.[11] Doing a broader internet search of potential jurors can give information about a person’s family status, political party registration and campaign contributions, and potential wealth valuation.[12] More information, such as information about bankruptcies, liens, civil cases in general, criminal history, professional licenses, and incorporation filings, can also be gleamed about potential jurors through online subscription databases.[13]

Ethics

            Before diving into the endless sea of the internet and social media sites, it’s important to be mindful of any ethical rules and adhere strictly to them – always erring on the side of caution. The ABA Model Rule 3.5 charges attorneys with maintaining the impartiality and decorum of the court or tribunal.[14] This includes avoiding any inappropriate communications with jurors that might be an attempt to influence them, harass them, that would be unwanted, or that would be made ex parte.[15]

            But the ABA’s stance in Formal Opinion 466 is that attorneys can access potential jurors’ and jurors’ social media accounts, but they cannot send access requests, use others to send access requests, or circumvent privacy settings.[16] This would be exactly the type of ex parte and unwanted communication that Rule 3.5 guards against.[17]

            Social media can be a fantastic tool in many facets of society, including litigation strategy and jury selection. There is a treasure trove of knowledge that we make available to the public through social media platforms as a way to connect with others that can also be extremely helpful to trial attorneys hoping to learn more about what kind of juror you might be. But social media also comes with its own privacy and ethical concerns, so always stay mindful of the professional ethical rules before using social media as a tool to gain insight into who might be comprising the jury.

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[1] Kayla Wembley The Top 10 Everything of 2010 Time (December 9, 2010) (quoting the tagline of The Social Network (2010)).

[2] Jury Analyst Social Media in Jury Selection: Good or Bad? Juryanalyst.com (January 13, 2021).

[3] Id.

[4] Id.

[5] Jeffrey T. Frederick, PhD Using Social Media News Posts in Jury Selection (and More) National Legal Research Group, Jury Research Services Division (June 12, 2019, 3:06 p.m.).

[6] Id.

[7] Id.

[8] Miles Hutton Using Internet Research to Get to Know Your Prospective Jurors JD Supra (May 13, 2021).

[9] Sonia Chopra Using the Internet and Social Media in Jury Selection Plaintiff Magazine (February 2012).

[10] Id.

[11] Hutton, Supra.

[12] Id.

[13] Id.

[14] ABA Model Rules of Pro. Conduct 3.5.

[15] Id.

[16] ABA Comm. on Ethics & Pro. Resp., Formal Op. 466 (2014).

[17] Id.