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.
Jury Summons
Tuesday, March 29, 2022
What Jurors Want and Need from Expert Witnesses
Sunday, March 27, 2022
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.
Monday, March 21, 2022
Celebrity Jurors Causing Courtroom Drama
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
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
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.Saturday, March 19, 2022
The Cost of Jury Service: "Wait, I have to pay for parking too?"
Wednesday, March 16, 2022
Trial by Jury: Immersive and Interactive Performance as Public Practice
What Is One Day One Trial and Why It Should Be Standard for All Courts
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 21st 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.
Tuesday, March 15, 2022
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!
Sunday, March 13, 2022
How Social Media can be Used as a Tool to Learn More About Jurors
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]