Judges Snubbing Jury Verdicts: Cause for Concern

When a jury gives a verdict, it is expected that everybody, including the judge who presided over the trial, will respect it even if no one else agrees with it. Most people seem to view the work of a jury as the fulfillment of a sacred duty, and even if the jury doesn’t come to the “correct” verdict (as deemed by society), the general public still holds the jury in high regard. The judge herself is expected to take the jury’s verdict into consideration when she gives a sentence. But due to a recent Supreme Court case, it seems as if judges will be allowed to assess punishment without regard to a jury’s verdict—even if the jury returns a “not guilty.”

On October 14th of this year, SCOTUS denied certiorari in Jones v. United States, a case in which three defendants were acquitted on major drug charges but convicted on some of the lesser charges in 2008. Three years later, in 2011, U.S. District Judge Richard Roberts disregarded the jury’s verdict and sentenced the three men as if they had been found guilty of all the charges. The men were given 19 years in prison because Judge Roberts felt that the evidence showed that they were guilty of the major drug charges.

Rutherford Institute President John W. Whitehead maintains that, when judges ignore jury verdicts, it “usurps the role of the jury and violates the constitutional right of citizens to be judged by a jury of their peers.” He states that the idea of judges using their own determination of the facts when a jury has been given the responsibility to determine them “runs contrary to the principles embodies in the Sixth Amendment, and to the very idea of a trial by a jury of our peers.”

In his dissent on the denial of cert, Justice Scalia stated that the petitioners present a strong case that their sentences were substantively unreasonable—and, therefore, illegal—but for the judicial findings of fact. But Justice Scalia noted that any fact which increases a defendant’s penalty constitutes an element of the crime, and must either be admitted by the defendant or be proved to the jury beyond a reasonable doubt. He emphasized that the elements may not be found by a judge. Justice Scalia lamented the fact that courts of appeals uniformly take SCOTUS’s silence on the issue to suggest that the Constitution permits otherwise unreasonable sentences that are supported by judicial factfinding.

Not only is this decision to deny cert highly disturbing on many levels (the most important question being, how can we trust the jury system now?), but, even with due process rights aside, why waste all the time and money on a jury trial when the judge can just throw out the verdict and do whatever he wants? What is the point of having a jury? There seems to be no good answer. 

Moreover, it is frightening that the judge in this case (and judges in similar cases) appears to snub the jury’s hard work in sitting through a trial, listening to all the evidence, deliberating, and reaching a unanimous verdict. The fact that SCOTUS seems to approve of behavior like this is even scarier. Perhaps that is why they decided the case so close to Halloween.            

Deadlock Charge vs. Allen Charge: Why a Deadlock Charge is Better for Minority Jurors

When a jury is deadlocked, the judge may issue what’s called the Allen charge. The charge is an instruction that “encourages” the jury to come to a decision by having the jurors listen to each other’s opinions (without compromising each juror’s own conscientiously held belief) all in an attempt to reach a unanimous verdict.

The issuance of an Allen charge, however, is the subject of much debate. Should the judge, in effect, ask the minority jurors to render a verdict against their consciences? Is the overall effect on minority jurors positive, or negative? What modifications to the Allen charge would be helpful; or, in the alternative, would it be best to get rid of the Allen charge altogether?

The main problem most people find with the Allen charge is that it pressures the minority jurors to “give in” to the majority view. Thus, even though the instruction may contain an admonishment for the jurors not to compromise their conscientiously held views, the effect of the charge is that the minority jurors experience pressure to conform to the views of the majority because the judge (a figure with authority) essentially tells them to conform.

If the court sincerely wants to avoid a jury deadlock, one suggested alternative to the Allen charge is for the judge to give deadlock instructions before the jury even starts to deliberate. This would alleviate pressure on minority jurors because, when the instruction is given, there would not yet be a minority for the charge to be directed towards.

The American Bar Association’s (ABA) Standards Relating to Trial by Jury propose a model deadlock charge. In fact, several state supreme courts have already either severely modified or abolished the Allen charge in favor of the ABA’s model deadlock instructions:

(1) that in order to return a verdict, each juror must agree thereto; (2) that jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment; (3) that each juror must decide the case for himself or herself but only after an impartial consideration of the evidence with the other jurors; (4) that in the course of deliberations, a juror should not hesitate to reexamine his or her own views and change an opinion if the juror is convinced it is erroneous; and (5) that no juror should surrender his or her honest belief as to the weight or effect of the evidence solely because of the opinion of the other jurors, or for the mere purpose of returning a verdict.

Many states have adopted the ABA model deadlock instructions because the instruction is given before a majority and minority have even formed during deliberations. This serves to alleviate the pressure that minority jurors may feel because the charge does not seem to be directed at them. Overall, it assures a more fair and balanced deliberation and, hopefully, a correct verdict. 

"Oh I know all about this. I watch Law & Order" Why You May Want to Dismiss This Juror

Attending law school drastically changed the way I enjoyed my primetime television. I now find it very hard to enjoy shows like "How to Get Away With Murder" or "Law & Order," as I'm too busy making objections that their fictional opposing counsel should have. However, for several jurors they walk into their jury duty with the Shonda Rhimes guide to Criminal Procedure and that is all. Researchers are finding these notions of the justice system can have big implications for how a juror processes the evidence in a case.

Many of these shows shape for individuals what the "typical defendant" is supposed to look like, or better yet what a guilty person looks like. This is known as criminal prototyping. In addition to criminal prototyping, jurors also may employ the methods they watched on CSI the week before to determine what true investigative process looks like. Your officer on the stand may not hold a candle to the young lab geniuses that appear every Thursday night. Further, these super sleuths are typically charged with the tasks of a forensic pathologist, detective, and district attorney in one hour long segment.

Researchers have identified some of these preconceived juror expectations as the "CSI effect. Many attorneys, judges, and journalists have claimed that watching television programs like CSI has caused jurors to wrongfully acquit guilty defendants when no scientific evidence was presented. According to one judge surveyed by the National Institute of Justice, "I once heard a juror complain that the prosecution had not done a thorough job because "they didn't even dust the lawn for fingerprints."  http://www.nij.gov/journals/259/pages/csi-effect.aspx

Even more than potential problems with burden, many of the new courtroom dramas paint attorneys as "showmen" rather than advocates following procedure and rules. Jurors may wonder why the attorney isn't as charismatic as the lady they saw on ABC, or find their jury experience far more boring than the murder trials in their favorite show.

Luckily, finding out what kind of "courtroom knowledge" your jury pool may be coming in with is one of the easier topics an attorney can address on voir dire. Because these shows are so prevalent and engrained in today's social media, making these inquiries can help the attorney become likeable to the jury, but also reveal any of your potential venire who has an tv degree in crime scene forensics. In light, of the growing prevalence, this topic should be addressed by attorneys much more often where they are dealing with criminal cases.

Jurors May Not Always Judge a Book By Its Arrest Record

Most attorneys would cringe at the idea of having to put a witness with a criminal record on the stand. However, a recent study from Temple University School of Law’s, Kathryne Stanchi, and Deirdre Bowen of Seattle University School of Law have found that it really might not make a difference. Threats to a witness’s credibility, like a prior conviction for instance, are real concerns for litigators and can even shape the strategy they take with a case. Stanchi and Bowen wanted to focus on the effects a witness’s prior conviction might have in a civil trial context. In a realistic controlled study, the researchers found that prior conviction evidence did not increase the chances for an adverse verdict. Instead, emphasis on the conviction caused mock jurors to frame the trial as more of a zero sum contest on witness credibility -- a frame that can end up actually benefiting the convicted witness. Instead, emphasis on the conviction caused mock jurors to frame the trial as more of a zero sum contest on witness credibility -- a frame that can end up actually benefiting the convicted witness.

It’s interesting to note some of the key features of the study are its use of a civil problem to test jurors perceptions. Further, rather than using testimony or a “trial on paper,” the researchers sought to make the jurors experience as real as possible. Video of opening, testimony, and the closing were shown to the participants. Each video script varied its delivery in how it addressed the prior conviction, and the deliveries employed had been thoroughly vetted by trial attorneys prior to the study .

This research seems to contradict much of the commentary usually applied to jurors, and indicate that in certain contexts bias may set aside in light of other credible pieces of evidence. According to the researchers, jurors can register particularly negative facts, like a criminal conviction," "but compartmentalize them when examining the merits of the case." These findings have positive implications for advocates and further scholarship on jurors’ perceptions of a witness with a previous conviction. Where an attorney may have once gone to great lengths to keep out those details about a witness, practitioners can now consider addressing such evidence head on and then proceeding to the relevant material in the witness’s testimony.

For attorneys on the other side who might want to use such evidence, the study suggests weighing the options carefully. Given that such evidence may have little to no effect on jurors, attorneys have to determine whether such technique could be impactful or seen as an unnecessary shot at the other side.

I’m of the opinion that I would rather be safe than sorry, but if keeping that pesky DWI or disorderly conduct from college just isn’t a option, then let your witness own it and move on to what the jurors really wanted to hear.

SHOULD CORPORATIONS BE JURORS?

            Should corporations be entitled to have corporate jurors on their jury?  Typically, people accused of wrongful acts—whether criminal or tortious—have a right to a trial by a jury of their peers.  But, corporations are not people. Yet, corporations are often sued for their misconduct.  So, how can a corporation be given a jury of its peers? 

            Corporations are legal fictions created by statute.  Corporations are treated as “artificial persons” that have a lot of the same rights as individuals—this is called “corporate personhood.”  For more in depth discussion click here.  The idea behind corporate personhood is that corporations are owned and controlled by people and speak through their officers—who are people—thus corporations should be afforded the same rights as people.  Corporations are even afforded similar constitutional rights under the U.S. Constitution—which includes the right to a trial by jury of its peers. 

But, corporations are not receiving a trial of its peers.  A corporation’s peers are other legal fictions, not people that sit in a jury box when the corporation is being sued.  Albeit, the jurors deciding the corporation’s fate could be officers of corporations, but that is not likely.

Corporations should receive a jury of its peers because it increases fairness.  There are vast numbers of articles challenging the fairness of defendants not receiving a jury of its peers.  The primary example is when racial minorities have juries that are completely or almost completely white.  Advocates for justice claim this is not fair—especially in jurisdictions where the racial minority outnumbers whites.

There are two ways in which a corporation could be provided a trial of its peers.  First, corporations could be treated as people in a general sense and be served summons in all types of cases.  In this scenario, corporations would be treated no differently than people.  Corporation would be able to receive juror summons and would have to report for jury duty.  Of course, corporations cannot report for jury duty, so the corporation would have to act through its officers.  Thus, its officers would have to report for jury duty.  This scenario would particularly attractive in tort claims where a person brings suit against a corporation.  Ideally, the jury would consist of both regular people and corporations—really officers of the corporation.  But, this is a broad scenario and would be quite difficult to implement.

Second, corporations could sit on juries for very specified cases like breach of contract between two corporations.  Again, corporations are unable to sit on juries, so the jury would consist of officers from different corporations.  Because both parties in the lawsuit are corporations, it would make sense that every juror be a corporation—because a corporation’s peers are other corporations.

So, corporations should be afforded a jury of its peers because it would increase fairness for corporations.  The U.S. Constitution affords individuals the right to a trial of his or her peers.  Why should corporations not be afforded the same?

Including Noncitizens in the Venire

In a forthcoming article being published by the American Sociological Association entitled, “Citizenship and Punishment: The Salience of National Membership in U.S. Criminal Courts,” researchers found that non-citizens are not afforded the same legal treatment in U.S.courts.  The study suggests juries to tend to convict non-citizens at a much higher rate.  It found that by “analyzing U.S. federal district court data from 1992-2008 for this study [that] [i]n 2008…96 percent of convicted non-citizens received a prison sentence, compared to 85 percent of U.S. citizens.”  In addition, the authors write that “the group threat perspective … suggests dominant group members feel threatened economically, politically, criminally, or culturally, and will stepup efforts to maintain social control when minority group populations are increasing.” 

Although the author's conclusion may be farfetched, one solution to this problem may be to allow non-citizens to be part of the jury pool.  The idea of allowing noncitizen jurors partake in jury duty is not a new one.  The British used the “jury of the half tongue” for nearly 500 years.  In this system “[w]hen the defendant was a foreign citizen,he was entitled to a jury composed half of Englishmen and half of foreigners (the foreigners could be of any nationality, not necessarily the nationality of the accused). This body was called the jury de medietate (‘of the half tongue’).”  It was in fact used in the United States as well, when “[e]arly settlers in the northeastern United States brought the system with them from England, requiring that Native Americans make up half the jurors in cases against Native American defendants.”

More recently, last year, Governor Jerry Brown of California vetoed a bill that would have given non-citizens the right to partake in jury duty.  One argument against this was that it would de-incentivize non-citizens to become U.S. citizens.  Governor Jerry Brown was quoted as saying “Jury service, like voting, is quintessentially a prerogative and responsibility of citizenship.”  The argument is that the right to vote as well as the right to a jury is right only for U.S. citizens.  However, “indeed until the early twentieth century, noncitizens routinely enjoyed the right to vote as a matter of state and local law.” Although the U.S. constitution limits “citizens of the right against discriminatory denial of the vote does not mean that noncitizens cannot vote.  If a state or locality chooses to enfranchise its noncitizen residents, it may do so.”

As such, giving such rights to noncitizens is not without precedent.  Although as the study suggests that citizens tend to convict noncitizens at a higher rate, another way to mitigate the situation is to allow legal permanent residents or “green card holders” to join juries.  In 2011, it was estimated that there were about 13.1 million LPRs in the United States.    The main principle that backs the American jury system stems from the principle of having our trials be adjudicated by a jury of our peers.  The Supreme Court has stated that “juries as instruments of public justice…[should] be a body truly representative of the community.”  If we truly espoused to live up to this principle, it might be high time to allow LPRs to participate in jury duty. 

More on Juror Influences

Perhaps the legal community is overreacting about the growing problem of potential jurors texting, using social media, and the Internet to disclose or receive information that may bias them to the case before them. But perhaps this overreaction is justified because we all understand that while we may try to prevent jurors from abusing the power of the Internet in the courtroom or while being actively involved in a case, we cannot stop the actions of people who cannot or will not stop their own curiosity. Incidents from all over the country have reached the eyes and ears of newsreaders about just how curious and intrusive some people can be with the spread of information that supports their own thoughts and perspectives.

In September, The Post-Standard revealed that during the Romeo Williams manslaughter case, in which Williams was accused of killing a 70 year-old man in the parking lot of a 7-Eleven, one juror received a text message from her co-worker concerning the defendant. The message stated that Williams had once been a student at the school the juror currently taught at and that Williams was "guilty as sin." The sender further stated that, presumably because of the connection of the teacher to Williams' former school, if the juror did not recuse herself from the case, Williams' conviction would get overturned on appeal. The juror properly reported the incident to the presiding judge and ultimately invited the judge to respond directly to the sender. In an unprecedented and unique treatment of the situation, the judge texted the following message: "This is Judge Fahey. Do not send any more text messages about this case or there will be consequences." While the actions of the judge were certainly unconventional, they are no doubt an example of a swift and judicious management of an altogether unpleasant incident.

In October, the Sun Sentinel reported that a potential juror in the retrial of John Goodman was actually arrested for "indirect contempt of court" after an assistant for the defense overheard the potential juror, Travis Van Vliet, telling another potential juror that he had Googled the defendant and learned that the case was a retrial, implying that Goodman had already been convicted. At the arraignment of Van Vliet, the judge admonished the man for his conduct and said, "I only wanted to do this once…Now I have to do it a second time [because of juror misconduct]. And because of your behavior, I nearly had to start jury selection over for a third time…Your actions jeopardized the entire judicial process in this case." While Van Vliet and his parents stated that he did not mean any harm, they explained that Van Vliet was "curious…[and] confused by questions the defense asked and ones the prosecution challenged" and that Van Vliet actually "had hoped for a spot on the jury and didn't mean to go against the judge's orders."

In the same retrial of John Goodman, a sequestered juror was heckled by unknown individuals from outside the hotel room she was staying in. The hecklers stated things like, "Watch out or you'll go to jail like Van Vliet." Apparently, the comments caused the woman to be confused because she did not understand the reference the hecklers were making to Van Vliet, and her confusion caused her to believe that there had possibly been a previous trial–a disturbing inference as any potential jurors in the Goodman trial were barred from serving if they knew about the previous trial. As a result, Juror #10 was excused from service due to counsel fears that she had been improperly influenced.

These incidents show that juror curiosity and potentially influential outside information are dangerous problems that may not go away any time soon. One thing is for certain, if courts do not take steps to increase juror protection from outside influences, including protecting them from their own curiosity, there may be a lot more retrials in the future.

PJAQ - Pretrial Juror Attitudes Questionnaire

In 2008 Len Lecci and Bryan Myers developed a new questionnaire called the Pretrial Juror Attitudes Questionnaire ("PJAQ") positing that the more prevalent Juror Bias Scale ("JBS") does not encompass all of the legal attitudes a potential juror may have and which may lead to guilty or not guilty verdict.

In order to develop their questionnaire the researchers arrived at twenty-nine items to be placed on the questionnaire.  The items were divided into six factors: (1) conviction proneness such as “Criminals should be caught and convicted by any means necessary,” (2) system confidence such as “When it is the suspect’s word against the police officer’s I believe the police,” (3) cynicism toward the defense such as “Defense lawyers are too willing to defend individuals they know are guilty,” (4) social justice such as “Rich individuals are almost never convicted of their crimes,” (5) racial bias such as “Minority suspects are likely to be guilty, more often than not,” and (6) innate criminality such as “Once a criminal, always a criminal.”

The former three factors, namely conviction proneness, system confidence, and cynicism toward the defense, can be attributed to factors such reasonable doubt, system confidence, and probability of commission already taken into account by the JBS scale. The latter three factors are novel and do not have any counterparts in previous questionnaires and tools. Three studies have been conducted in order to determine the predicting power of the PJAQ.

In 2007,Sara Jane Mobley conducted a cross-sectional study in the central jury room of Dallas County’s Frank Crowley Criminal Courthouse in Texas.  The researcher wanted to test whether litigators could use the PJAQ in order to determine pretrial bias during the voir dire process.

In developing her sample, she chose potential jurors showing up to court on the day of their jury service.  The potential jurors that showed up for jury duty were selected from a list of registered voters in Dallas County.  From the potential jurors that showed up, each was asked if they would volunteer or participate in order make the researcher’s sample truly random.  The sample was composed of ninety-nine potential jurors.  They were given a demographic survey along with the PJAQ.  After filling in the questionnaire, the participants were given case summaries of three different cases.  They participants were asked to render a verdict and answer questions about the verdict they rendered.

She found there was a difference difference between preconceived bias of majority and minority respondents.  The knowledge based questions revealed that minority respondents mistrusted the legal system more than majority respondents.  It was also found that minorities convicted wealthier individuals at a higher rate than the majority respondents.

The advantages of implementing the PJAQ include the following:

• production of more candid juror responses;
• decrease in the likelihood of jurors echoing others’ opinions rather than giving their own;
• the avoidance of embarrassing and psychologically upsetting the potential jurors with questions in open court;
• the opportunity for efficient, quick voir dire that can benefit judicial economy; and
• and removal of demographic data from juror information in an effort to end the stereotyping of potential jurors

Some disadvantage of implementing the PJAQ include the following:

• attorneys and judges losing the ability to see how jurors react in person and assess their body language and verbal responses;
• could allow lawyers another way around “Batson challenge” by giving an attorney with racial preferences the ability to use a neutral reason for challenging a juror
• the costs associated with drafting, copying, and distributing the questionnaires to all jurors; and
• it could result in a longer, less efficient process until all the kinks are worked out.