Have You Considered Seeing a Therapist?

Being a juror is tough. You wake up early to go the courthouse only to be told to wait for hours. You don’t have to go to work, but you do have to sit in a room and talk to people you’ve never met before and will probably never talk to every again until you can reach some kind of agreement. You have to sit and listen to other people talk. And the other people will talk a lot, possibly about things you don’t know anything about and never wanted to learn anything about. Sometimes it will feel like everyone gets to talk but you, especially if it’s a high profile case. And since high profile cases tend to involve sensational facts, you will probably want to talk, if only to get things off your chest.

We live in a time with increasing awareness about mental health issues. Significantly, there has been a push for people to seek professionalhelp instead of relying simply on friends and family, who may be good listeners but aren’t exactly trained to handle other people’s mental health problems. For one thing, friends and family don’t come with a professional duty not to tell anyone else about what you’ve told them.

But the classic jury instruction tells juror not to discuss the case with anyone, even each other, until all the evidence has been presented. In a world where more and more people are diagnosed with mental health issues, such an instruction may border on cruel and may have a negative impact on the juror’s performance if the case becomes a source of stress that they cannot get help dealing with. Does the instruction come with an exception for therapists? Even as people work to destigmatize seeing a therapist, most people would probably still balk at the idea of raising their hand and asking the judge if they can at least talk to their therapist about the case.

And that’s just people who walk into the jury box with a therapist. Think about the people who leave the jury box needing a therapist. Extremely long cases and cases that involve shocking facts, such as homicide or rape cases, certainly have an impact on jurors. Arguably, you wouldn’t want a jury that wasn’t affected, on some level, by the facts of such cases. But few states offer any sort of counseling. Those that do tend to only have spottycoverage, with budgetary concerns keeping the programs small.

If courts aren’t sure how to approach the issue of jurors’ mental health, it’s a symptom of a larger societal problem. On the back end is the fact that therapy costs money. Knowing that jurors may leave the courtroom in need of professional help does not mean that the court has the resources to give them that hope. On the front end is the fact that having a therapist is still not considered normal and therefore isn’t prepared for, much like how, once upon a time, many restaurants did not have options for vegetarians or the lactose intolerant.

Jury Nullification II: The Practice Proliferates

Before Bushell’s Case there was a long history of stacking juries or using writs of attainders in order to ensure that juries returned verdicts the court approved of. As we learned last week, Bushell’s Case set the stage for protecting a jury’s right “to give their verdict according to their convictions.” This week we’ll take a look at how these jury protections made their way across the British Empire—in particular to the U.S.—and explore what the right of jury nullification (or conscientious acquittal or perverse verdict) looks like today. 

United States

The practice of jury nullification in the U.S. is brought about by several principles of American jurisprudence—even if nullification itself is not specifically set out in any one place. First, under Article III of the Constitution “[t]he Trial of all Crimes, except in Cases of Impeachment, shall be by Jury.” Second, under Federal Rule of Criminal Procedure 29, the court may only enter a directed verdict for acquittal, and not for a guilty verdict. Third, the Fifth Amendment’s double jeopardy clause does not allow the government to appeal a defendant’s acquittal. Finally, following Bushell’s Case, “members of [] juries will never be punished for their errors.” All of these separate protections come together and allow the practice of jury nullification to be effective in the U.S.

In fact, there is a long history of jury nullification in the U.S. One of the highest profile instances of jury nullification came in the case of Crown v. Zenger. Zenger was the printer of the New-York Weekly Journal, a newspaper that at the time criticized the Governor of New York, William Cosby. Zenger was charged with seditious libel for printing the paper that criticized Cosby and was tried by Cosby supporters, including Chief Justice DeLancey. After Zenger’s original attorneys were disbarred, they recruited Andrew Hamilton (no relation to Alexander Hamilton) to defend their former client. It should be noted that another Cosby supporter, John Chambers, was the interim court-appointed counsel for Zenger, and against expectations, was able to empanel a jury that would not be biased against Zenger. Hamilton, never denied that Zenger printed the articles in question, rather he argued that “truth is a defense against libel.” Chief Justice DeLancey on the other hand was sure that truth could not be a defense, and thus instructed the jury that English “laws in [his] opinion are very clear; they cannot be admitted to justify a libel.” The jury spent less than ten minutes deliberating, and ultimately found Zenger not guilty. This was one of the first instances in America recognizing the freedom of the press. And though the case itself did not become the legal precedent which fully protected the press, it showed the shift in thinking of the early colonists about which freedoms should be protected. 

While Zenger represents one of the most well-known instances of jury nullification in Colonial-Era America, it is most certainly not the only example. Throughout the colonies’ early history, juries would shape the law according to the new beliefs they built living away from the Crown. Juries often nullified the Navigation Acts in the colonies, indeed with such frequency that many British Prosecutors gave up trying such cases as conviction was deemed hopeless. However, jury nullification was not only reserved for English laws. After the Revolution, during the Pre-Civil War Era, many juries would acquit individuals being tried for violating the Fugitive Slave Acts. Further, during Prohibition, many juries also nullified liquor control laws—with some commenters suggesting they were nullified nearly 60% of the time.  More recently, during the Civil Rights Era there were even instances of all-white juries acquitting white defendants accused of crimes against African-Americans. 

Today jury nullification is largely unused, but there are still proponents of jury nullification that argue it is akin to the fourth branch of government. Nullification supporters argue that the practice is the public’s protection against corrupt law enforcement and politicians. Recently, the Colorado Supreme Court dealt with the rising interest of jury nullification in Colorado v. Iannicelli. In the case, defendants Iannicelli and Brandt stood on the steps of the Denver courthouse asking people entering if they were going to the court house for jury duty. If they answered that they were reporting for jury duty, Iannicelli and Brandt would give the possible jurors information packets about jury nullification. Colorado charged Iannicelli and Brandt with jury tampering, but the court dismissed the charges, noting that in order for tampering to have occurred “the statute requires that [their] effort[s] to influence a juror must be directed to a specifically identifiable case.”

Other English Colonies

As noted, the practice of jury nullification is not only found in England and the U.S, but also throughout much of the old British Empire. The practice has been limited in some instances, and changed verdicts in others, but its influence is still felt. We’ll look at interesting happenings of jury nullification in Scotland and Canada, but other former British colonies like Australia have jury nullification as well. However, India interestingly does not deal with jury nullification since India has abolished jury trials.

In Scotland, the effect of jury nullification had a very profound effect, it led to the creation of the three-verdict system that is still in place today. In Scotland, juries can return guilty and non-guilty verdicts, but they also have the option of returning a verdict of not proven. The nullification that led to this strange system came in the case of James Carnegie of Finhaven. Finhaven was accused of killing the Earl of Strathmore, which he undoubtedly did, but he did so accidentally. At the time, the law required that the jury return a verdict of proven if they believed the facts had proven that Finhaven did in fact kill the Earl, or not proven if they felt the facts did not prove the act. The jury, not believing that Finhaven killed the Earl purposefully, instead asserted their ancient right to judge the whole case (as opposed to merely the facts of the case) and thus rendered a not-guilty verdict for Finhaven. Over time, the practice of delivering not-guilty verdicts was re-established. Today, juries most often return not-guilty verdicts when they feel the defendant is innocent, and instead use not proven when they tend to think the defendant is guilty, but that the prosecution didn’t prove the case—even though both verdicts end in acquittal. 

Canada has also experienced instances of jury nullification, however the practice is much rarer in the Great White North. Still, the Supreme Court of Canada has dealt with instances of juror nullification and set out some standards. One of the most famous instances of jury nullification in Canada came in R. v. Morgentaler. In the case, Morgentaler was accused of operating a private abortion clinic but was acquitted by multiple juries. The case eventually reached the Supreme Court of Canada and the court invalidated the law, noting in dicta that while juries could disregard laws, if they had the de facto power to do so, and were encouraged to do so by defendants’ counsel, it could lead to confusion and application of the same laws differently to individuals tried by different juries. In 2006, the Court again recognized in R. v. Krieger that juries may refuse to apply the law as stated if it goes against their consciences, noting that “juries are not entitled as a matter of right to refuse to apply the law—but they do have the power to do so when their consciences permit of no other course.” However, in an earlier case from 2001, R. v. Latimer, the Court also noted that it was the role of the trial judge to prevent jury nullification from occurring. The practice also has less finality than nullification in the U.S. because Canadian prosecutors have the ability to appeal acquittals—though only if there was an error of law, not only an unreasonable conviction. 

Conclusion

As we’ve seen, jury nullification has an interesting past and an equally interesting present. For the most part, the practice has fallen out of favor, with a few stalwarts still holding that jurors should be informed of their right to nullification in order for it to be utilized more. However, this may have some unintended consequences—a recent study in Scotland found that by removing the not proven verdict currently allowed in Scottish courts (and akin to a recognized jury nullification) would likely push jurors more toward guilty verdicts when the case seems close. Today, more and more cases never even reach the trial stage, but perhaps for those important cases that do, jury nullification will remain an effective tool when utilized correctly. 

The People Have Spoken: Taiwan's Fledgling Democracy Continues Towards Citizen Participation in the Judiciary

Taiwan’s current president, Tsai Ing-wen, was recently re-elected in a landslide in part due to her policies relating to China and maintaining Taiwanese democratic ideals. Taiwan remains a new and potentially unstable democracy, with its first competitive democratic elections occurring only in the 1990s and the constant threat of China’s growing power (especially in the wake of developments in Hong Kong). The 2020 elections marked the fourth peaceful transition of power, a step beyond the “two-turnover” test for democracies. However, elections alone do not define a democracy. As one author wrote: “freedom is not just gauged by periodic free elections, but also by the many ways that the government exerts its coercive power over individuals.”

In their book, American Juries: The Verdict, Vidmar and Hans emphasize the important role the jury held in the creation and sustainability of early American democracy. The jury system—placing peers between the government and its citizens—protected the people against government officials, helped ensure that “justice was kept in the hands of the people,” and “allowed the injection of local norms and values into legal disputes.” The authors go on to document how America’s early resistance to imperial rule largely took place through the jury system, which was “used to defy the broad institutions” of imperial governance in the colonies. Citizen participation essentially:

• provides citizens their most active and participatory opportunity to participate in the process of governing,
• allows for the voice of common sense and experience to impact a country’s developing law.

Taiwan currently suffers from a serious problem of distrust of their justice system. The young democracy certainly has room to celebrate civil and political rights victories, such as becoming the first country in Asia to legalize same-sex marriage. However, critics remind us that citizens remain concerned about the judiciary’s competence with respect to Taiwan’s freer culture. The new Taiwanese nickname for the arbiters of their justice system—“dinosaur judges”—captures their concerns about judges being out of touch with their society. Citizens fear that judges with ties to the authoritarian era, which ended only in the 1990s, cannot promote a fair system: they continue to document instances of judicial bias, incompetence, corruption, and general impropriety.

While the government proposed a draft citizen judge system in November 2019, a large alliance promoting the jury system still urges the government to implement a jury system and has planned a march for May 2020. Proponents of a jury system argue the system is necessary to allow the public’s collective wisdom to conduct fair trials. Regardless, recently re-elected President Tsai Ing-wen promised during her campaign to continue moving the Taiwanese judicial system toward one that incorporates its citizens in a meaningful way.

Since she was first elected in 2016, Tsai has rejected the one-China principle, which considers Taiwan a wayward province that must return—perhaps even by force—to the fold of the mainland. Tsai’s opponent in this most recent election advocated for closer ties with mainland China, arguing that easing tensions will boost and diversify Taiwan’s economy. However, Tsai won in a landslide due to the majority’s overwhelming fears of what warmer cross-strait relations could mean for the current Taiwanese democracy. The Taiwanese people have spoken: they plan to maintain their fledgling democracy despite the negative ramifications already felt from China.

A Guide, Not a Commander – Reining In the Foreman's Tendancy to Dominate

The trial just ended.  The jurors head back into the jury room because they must.  They know their purpose: to determine whether this defendant did it.  Some jurors feel confident about their vote—the evidence was too strong to ignore.  For others, perhaps the evidence was too circumstantial to be sure.  Doubt creeps in (just an inch), but the jurors feel better knowing that they will now have a chance to discuss the evidence with their fellow jurors.

Deliberations begin with an awkward pause…then the foreman calls for a vote.  The jurors cannot remember his last name.   He speaks with authority.  No one can think of a reason not to listen to him, so the jurors vote.  No consensus.  The foreman then begins the process of raising each piece of evidence for discussion.  When moving to new topics, the foreman always tells everyone what he thinks, then opens the floor for everyone else to speak.  Some jurors talk, some jurors do not.  The foreman makes some good points.  The jury votes again: Guilty.

How Forepersons Dominate Deliberations

A wide body of research indicates that the above scenario accurately depicts a common dynamic between jurors and their foreperson.  Forepersons simply speak more often than other jurors.  Although the foreperson’s role inherently demands that the foreperson provide procedural instruction, forepersons still communicate their opinions about the facts twice as often as other jurors.  Further, forepersons tend to speak first, which frames the entire discussion going forward. 

            When a foreperson speaks first and more often than other jurors, that foreperson disproportionately influences the jury.  For example, studies show a strong correlation between a foreperson’s pre-deliberation opinion and the entire jury’s final vote.  Our system intentionally relies on a relatively large jury (of at least 6) because smaller juries achieve (a) poorer-quality deliberations; (b) less-accurate results; and (c) a poorer cross-section of the community, which the U.S. Constitution demands under the Sixth Amendment.  If jurors do not speak or otherwise participate, jurors may as well not be present, and the jury becomes effectively smaller.  When the foreperson dominates deliberations, all the downsides of a smaller jury reveal themselves.

Potential Solutions

We cannot simply abolish the foreperson.  Research shows that forepersons (even ineffective ones) play a critical role in maintaining fair communication and order during deliberations.  Mock juries without a foreperson tend to analyze each topic more narrowly, and tend to spend too little time on each topic.  Also, in their defense, actual forepersons are not intentionally manipulative; they try to be fair. 

Instead of abolition, we should accept that the presence of a foreperson will automatically trigger certain behaviors in the jury, and courts should provide the jury with two instructions designed to counteract those undesirable behaviors.  First, courts should inform jurors that the foreperson tends to have an outsized influence; therefore, the jury should not necessarily select the richest or most aggressive person.  Instead, the jury should select the most balanced person who can most effectively organize the discussion.  Such an instruction should help jurors put more thought into their decision.  Second, courts should make clear that the foreperson is not the boss, therefore other jurors should not feel intimidated by that person.  If a juror wants to say something, that juror needs to know that he/she can say it, even if the foreperson changes the topic or gives someone else the floor.  Although some conflict may ensue when jurors disregard the foreperson’s instructions, our system includes so many jurors for a reason.  They are not meant to always get along.  Although courts could take a wide range of actions to diminish a foreperson’s unusually powerful influence, these two simple instructions could heavily improve the quality of juror participation and jury deliberation as a whole.

See you in (Practice) Court!: The Benefits of Summary Jury Trials

Photo Source: Adobe Stock

The United States has typically been viewed as a sue-happy society; that is, we Americans “will sue at the drop of a hat.” However, even with over 83 million cases filed in state courts alone in 2017, the United States comes in only at #5 of the world’s most litigious countries. Despite the occasional frivolous lawsuit, Americans have a deep-set fear of litigation because it is costly, inefficient, and largely comes down to how a group of 12 random people is feeling that day. Only 3% of civil cases filed subsequently go to trial; the rest are resolved by some form of alternative dispute resolution. Of these, summary jury trial is the only form of ADR that allows for an actual jury.    

In the 1980s, District Court Judge Thomas Lambros developed the idea for summary jury trials to encourage settlements. He found that parties resisting settlement believed they would fare better in front of a jury. A summary jury trial allows parties to present abbreviated versions of their cases to real juries, but the jury verdict is nonbinding—it only serves as a preview for what would happen during a full-fledged trial. From 1980-1984, 92% of cases ultimately settled after summary jury trials, and the court saved more than $73,000 just in jury fees.

The rules governing summary jury trials are court-specific, but just think normal trial at 100x speed (most are finished within a day). Generally, a small jury (usually six) is empaneled from the court’s normal jury pool for the day. To ensure they take their roles seriously, the jurors are not told that their final verdict is only advisory until the trial concludes. Attorneys each have an hour to present their case: the rules of evidence are relaxed and there is not much time for expert witness testimony. The judge will charge the jury and give instructions, and the jurors will deliberate and return their verdict. In some cases, jurors are further separated into panels for deliberation, which is helpful to determine a range for appropriate damages. The attorneys may consult with jurors about the verdict, and then retire for settlement negotiations. If a settlement is not reached, neither the occurrence, nor the result of the summary jury trial is admissible in a future trial.

Although summary jury trials cut down legal fees tremendously (for both preparation time and court time), they are not frequently used. In a recent poll conducted by the National Judicial College, 87% of judges (of the 355 responses) do not use summary jury trials. Many believe that they take valuable court resources away from traditional trials, further congesting the court’s docket, especially if the parties still refuse to settle. Attorneys face an additional risk of revealing their trial strategy that may be used against them in subsequent litigation if the parties don’t settle. The time constraints also limit what cases may use summary jury trials—complex legal issues or fact patterns and cases requiring expert testimony typically prefer traditional trials.

Unfortunately, courts do not report statistics on the use of summary jury trials, which may explain why clients haven’t heard about them or are resistant to using them. However, the judges and attorneys that have used summary jury trials “have fallen in love with the system.” They provide all of the benefits of a traditional trial, without the risk of a binding verdict. Summary jury trials may also be more efficient than mock juries and focus groups because the attorneys will still have to present their case to a real jury, which may be different than their test groups. Consulting with jurors after the case also allows attorneys to learn how real jurors would have decided their case, the strengths and weaknesses of their arguments, and may provide some insight on juror biases (and how attorneys can reduce them in the future).

How did you find me? A Breakdown (and Update) on How States Summon Jurors

When you recieve a jury summons in the mail, you may find yourself wondering how you were found.

States use a number of lists that they maintain to create a jury wheel, or a master jury list. The goal of this list is to include as many residents of the state as possible to ensure that juries are comprised of a "fair cross section of the community."

One of the most standard lists used to create this master list is the list of registered voters. A number of states use this list alone. Those states include:

Alabama, Alaska, Arizona, Georgia, Illinois, Kansas, Kentucky, Louisiana, Maryland, Mississippi, New Mexico, New York, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, and West Virginia.

A few states limit their master list beyond the list of registered voters. Wisconsin's jury wheel is comprised only of residents who actually voted, and Florida uses either the list of registered voters or people who actually voted, whichever is available in that district.

Pennsylvania requires its districts to at least use its list of registered voters, but it allows its districts to add to their wheel using other available lists of residents.

A number of states expand upon the list of registered voters by including people who have a drivers license. Those states include:

Arkansas, Connecticut, Delaware, Hawaii, Montana, New Hampshire, Ohio, Oregon, and Vermont.

To capture more residents, some states create a master list using the list of registered voters, people with a drivers license, and anyone with a state-issued personal identification card. These states include:

Colorado, Idaho, Iowa, Minnesota, Missouri, Nebraska, Rhode Island, Texas, Washington, and Wyoming.

Kentucky's new bill would add it to this list of states, but even prior to this bill, Kentucky also included residents who filed an individual tax return. California's new bill would join Kentucky in including all taxpayers in its master list. Michigan similarly includes residents holding a drivers license or state identification card along with people who have filed state income taxes.

A few states have come up with innovative ways to ensure diverse jury pools. Massachusetts maintains a municipal resident list, which acts as its master list. Maine's master list consists of licensed drivers, people with a Maine ID card, and anyone who has asked to be eligible for jury service. Nevada's master list consists of licensed drivers and state ID card holders, customers of Nevada Energy, Nevada voter rolls, and the Nevada Department of Employment, Training, and Rehabilitation. New Jersey uses registered voters, licensed drivers, filers of state gross income tax returns, and filers of Homestead rebate application forms.

With so many ways to gather a district's population for jury duty, why do so many states go through the effort to combine these lists, rather than use one list, like the states that rely only upon voter registration lists? It all ties back to the importance of accurately representing the state's population to ensure that those on trial get tried by a jury of their peers.

While it is easier for states to rely on their lists of registered voters for their jury summons, this typically will leave out an important sector of the population, as voter turnout is highly correlated with a higher socioeconomic status.

Including the list of residents with driver’s licenses will expand that list, but still, driver’s licenses often carry a fee. It was for that reason that Kentucky pushed to include the list of residents holding personal identification cards, as Kentucky’s personal identification cards are provided cost-free to individuals, whereas drivers licenses carry a $30 fee to obtain that form of identification.

These new bills in California and Kentucky demonstrate that states are recognizing the importance of creating a diverse jury pool that accurately reflects the state's population. Also, it makes it harder to avoid getting summoned to jury duty.