Post-Traumatic Jury Stress Disorder

Post-traumatic stress disorder is a mental health condition that is triggered by experiencing or witnessing a terrifying event, and people, such as jurors, can experience trauma from second-hand exposure to traumatic situations. 

A recent study shows that jury duty can lead to side effects consistent with post-traumatic stress disorder and depression. Gruesome/graphic evidence, emotionally disturbing evidence profound empathy for victim, past trauma, guilt over verdict, sequestration, etc. can all lead to traumatic stress symptoms that result in these long-term side effects consistent with post-traumatic stress disorder and depression, such as intrusive thoughts/memories, flashbacks, insomnia, nightmares, etc. 

According to the study, 28% of jurors stress derived from courtroom procedures, 24% derived from emotions, 17% derived from the verdict, 17% derived from the jury charge/deliberation, and 14% derived from evidence itself.

In accordance with the study, one juror reported that jury duty is stressful, especially in criminal cases. She sat in a two-week homicide trial with a defendant that had admitted to the horrendous facts of killing a man and wrapping him up in a carpet. Her stress mostly stemmed from seeing the dark side of human behavior and not being able to talk to anyone about her thoughts or feelings regarding the case. 

Another juror, who sat in a trial for the sexual assault of a fourteen-year old girl and saw graphic sexual testimony, said that she felt like she “wasn’t mentally prepared for the graphic descriptions of the sex . . . and [she] wasn’t prepared for the emotions of [the] young girl on the stand.” Ultimately, the jury found the defendant not guilty. After the trial, she realized they probably made the wrong decision. She “cried a lot” and even reached out to a fellow juror who also claimed to have been haunted by their decision. 

EFFORTS TO REDUCE JUROR STRESS: 

Efforts to reduce juror stress are being implemented at the discretion of judges, and many courts have implemented some procedures to reduce juror stress. However, I do not think that sporadic procedures are enough. I believe it should be mandatory for courts to offer all of the following: 

1. Pre-trial conversations with jurors: judges/attorneys should educate jurors about the potential to experience stress-related symptoms. It has been found that an educated juror is able to better manage their levels of stress while on jury duty. 
2. Post-verdict debriefing: judges should give jurors the opportunity to discuss their experiences and emotions. Studies have found that jurors, especially those in highly disturbing cases, have appreciated post-verdict counseling. 
3. Post-trial counseling: if requested, judges should offer jurors a series of free counseling to allow them to walk through their experience and unload it. This is essential for the jurors who do not quickly realize of their post-traumatic jury stress disorder. 

Jurors are human too and post-traumatic jury stress disorder is a real thing. We need to think seriously about designing appropriate resources for jurors that are duty-bound to serve the court.

Only 3 States are Honest With Their Jurors?

....and then the juror said, "there was a cap on damages??" 

Only three states - Massachusetts, West Virginia, and Wisconsin - tell juries that there is a cap on non-economic damages in civil cases. Although most states have enacted this rule, most state courts allow juries to deliberate and decide what damages the plaintiff is owed without any indication that there is an upper limit to the amount they may award. If their verdict is higher than the damages cap within that jurisdiction, the judge will decrease the damages in order to keep damages within the proper legislative range. 

Essentially, courts that do not disclose damages cap ask the jury to carefully decide an award. In their head, the judge is thinking: 

Why is this important? 

Well, sociologists studying juror behavior have concluded that the disclosure of a damages cap effects the way jurors assess damages. More specifically, when jurors are made aware of the damage cap, they adjust their final amount to the proper range permitted by the cap (Michael J. Saks's study). Meaning that in cases concerning minimal injuries, jurors would increase the size of damages to meet the cap, while cases dealing with major injuries would cause jurors to reduce their size of damages to meet the cap. The main focus of Michael J. Saks's study concerned "anchoring bias" - which described people's tendencies to rely heavily on a piece of information (here, the damages cap) to make their decisions. Furthermore, the way the information itself is disclosed to the jury can affect their actions and deliberation process. In conclusion, this study showed that awards were lower when the damages cap was disclosed to the jury as a "limit" compared to when they were stated as a mere "recommendation." 

Interestingly, jurors tend to compensate for a damage cap in one area (such as a limit on non-economic damages), by increasing the damage award for an area which is unlimited. Does this defeat the purpose of having a cap? It appears so. In Sasaki v. Class, the Fourth Circuit found that, after the jury was notified of the damages cap, there was a "strong reason to believe" that the jury attempted to make the plaintiff whole by simply awarding more damages for the counts that were uncapped. Professor Catherine Sharkey of NYU Law labels this the "crossover effect." 

This is the cross-over effect in-action: 

We talk about jurors being the ultimate fact finders. They are supposed to be fair, only using the evidence admitted by the judge. But then why do we keep the damages cap from them? I would argue that keeping this disclosure private would allow us to see what a jury would truly allocate to the plaintiff based on the facts of the case. When telling them the legal limitation, they will likely follow the rules. But without it, they will take time to carefully decide what amount is fair. The psychology behind the way jurors use the information regarding a damages award is fascinating - changing the way jurors behave with every accompanying word and instruction. While there is strong debate about whether caps on damages should be allowed at all, the way the limitation is communicated to the jury is another prong that must be considered by legislation in order to determine if and how the damages cap should be executed. 

Jury Instructions: Should Instructions be Improved and Why Good Instructions Matter

Photo by Tingey Injury Law Firm on Unsplash 

            For litigators, years of toil are often capstoned by the trial, and the trial is the final chapter for a litigant’s claims. The lawyers play their role by crafting the best arguments for their clients’ positions, witnesses play theirs by providing facts and context, and judges play their role by ensuring the rules of court are properly followed. But the jury has center stage when it is all said and done and when a decision must ultimately be made. And the last piece of guidance on law and procedure that jurors are given are the jury instructions or the jury charge.

What are Jury Instructions or Charges?

 Jury charges are the questions, instructions, and definitions given to a jury by the judge in a case. They provide direction and information to the jury regarding their deliberations. Often, pattern jury charges are available to help guide attorneys and judges in crafting jury instructions. Pattern jury charges are model jury charges designed to guide judges and lawyers in formulating jury charges.[1] Along with model charge text, they often include comments and references to major cases. The State Bar of Texas produces its own set of model jury charges called Texas Pattern Jury Charges (PJC), which are generally published on a two-year cycle.[2] Other Texas pattern jury charges are produced by private companies.

But, despite these pattern jury charges, research indicates that “[J]urors don’t understand their instructions as well as they think they do, as well as judges, would like to think they do or as well as we in Society might hope they do.”[3]

Why are Jurors Struggling with Jury Charges?

Why are jurors struggling to understand their instructions despite the legal community’s best efforts? Well, for starters, decisions may be rushed in the heat of trial, perceptions too narrowed, or the law too confusing.[4] But other factors contribute to the struggles of jurors as well such as legal language being too complex and the average juror being a legal novice, relatively low average literacy levels, jurors often relying on schemas, stereotypes or shortcuts, and the overall timing of the instructions.[5]

Homing in on the language used in jury instructions, it might be an easy assumption that juries simply don't understand complex legal ideas and so they simply discard them. While it has been found that jurors disregard instructions when they are confused by them, it’s not because they don’t or cannot understand the complex legal ideas.[6] Instead, linguistic complexity is a greater contributor to poor understanding than the actual complexity of the law, and when language is simplified comprehension improves.[7]

Of course, this can have a doubling effect when the fact that a vast majority of jurors are legal novices is taken into consideration. Everyday phrases and language can have a different, significant meaning in law that is lost on jurors, and instructions are too often not written with the novice in mind – leading to more confusion. To overcome this confusion, jurors turn to schemas, stereotypes, and other cognitive shortcuts to make sense of the instructions leading to improper applications of the law and an inconsistent application of the law.

Why Should We Want Better, More Understandable Jury Instructions?

The first and obvious reason why attorneys, judges, and society at large should all want better, more understandable jury charges is the same reason why jury charges matter – the charge is the last piece of guidance on law and procedure that jurors are given. The charge will guide the jurors during deliberations in coming to an ultimate decision.

Of course, all attorneys want jurors to understand their instructions and apply the law correctly to the facts. The same goes for judges. But it might be missed by attorneys and judges in exactly how better jury instructions will help jurors when crafting and giving jurors their instructions. Better written jury instructions have been found to help jurors during their deliberations to effectively discuss facts, evidence, and apply the law correctly to them.[8] Better and more clear instructions also help reduce juror bias, reliance on stereotypes, and overreliance on personal experience or possibly incorrect knowledge of the law.[9] Overall, lawyers and judges have a vested interest in crafting better, more understandable jury charges because better charges will lead to more legally accurate and fairer outcomes.

            Furthermore, proper instructions should be a concern for society as a whole because of society's interest in a fair legal system and the impact the legal system still has on so many. Despite the overall decline in jury trials, a significant number of trials still take place across the country in state and federal courts. An estimated 148,558 jury trials occurred in state courts across the United States in 2007, involving over a million jurors.[10] Poor jury charges or instructions could cause jurors to misunderstand, misapply, or disregard the law. Jury trials still have great impact and often decide the biggest issue in a person’s life. Better instructions will help these jurors make the correct decision in their trial based on a proper application of the law to the facts. Plus, better and more understandable instructions will help juries more consistently apply the law to cases based on the same claims or charges. More understandable instructions will create a fairer legal system and protect citizens' constitutional rights by creating a more consistent legal system.

           Overall, jury instructions are a vital part of the jury system. Instructions are often the last piece of guidance jurors get before beginning their deliberations. Clear instructions can be jurors’ compass or map to reach their decision, but confusing instructions can dismantle much of what trial lawyers have built during the trial. Attorneys, judges, and society will all benefit by taking the time to craft instructions that will guide jurors instead of leaving them lost in the woods.  

              In my next post, I'll dive into techniques that might improve clarity in jury instructions and ways to help jurors better understand their instructions overall.  

---

[1] Tarlton Law Library Jamail Center for Legal Research, Jury Charges, (Feb. 16 2022 3:34) https://tarlton.law.utexas.edu/texas-legal-resources/jury-instructions

[2] Id.

[3] Perkel, Steven E. and Perkel, Benjamin, Jury Instructions: Work in Progress, Vol. 27 The Jury Expert: The Art and Science of Litigation Advocacy Issue 2 (2015)

[4] Stride, John, A Year of Massaging Jury Instructions, TEXAS DISTRICT & COUNTY ATTORNEYS ASSOCIATION (March – April 2012)

[5]Chantelle M. Baguley, Blake M. McKimmie, Barbara M. Masser, Deconstructing the Simplification of Jury Instructions: How Simplifying the Features of Complexity Affects Jurors’ Application of Instructions, 41 Law and Human Behavior 3, at 284 (2017)

[6] Perkel et. al., Supra at 2.

[7] Id.

[8] Perkel et. al., Supra at 2.

[9] Kathy D. Patrick and James A. Reeder, Jr., An Effort to Enhance Jury Trials in Texas State and Federal Court, Jury Innovations Project Pilot Manual, (2011)

[10] Mize, Hon., G.E., retired, Hannafor-Agor, P. & Waters, N.L., (2007). The state of the states survey of jury improvement efforts: a compendium report. National Center for State Courts, Available at http://www.ncsc-jurystudies.org/~/media/Microsites/Files/CJS/ SOS/SOSCompendiumFinal.ashx

(Not So) Blind Justice: The Effect of Face Coverings on Juror's Perceptions of Guilt

        Nick Otto, Elizabeth Holmes wearing a mask during trial for conspiracy to commit fraud, Getty Images (2021).

     The importance of a first impression cannot be overstated- after all, you only get one. One of the most significant ways in which people deduce a first impression is, for better or worse, by a person’s physical appearance. Studies have shown that attractive people are seen as smarter, more socially intelligent, and more mentally sound than less physically attractive people. Scientist have theorized that this preference is a form of the phenomenon known as "halo effect," where people attribute other positive qualities to a person who is more attractive. One of the most salient examples of the halo effect is in our very own country's election history. The theory that voters prefer the more attractive candidate has been tested and proven time and again. If the mere appearance of a human being can affect citizens' decisions regarding who runs their country, how might it affect their perception of their peers? More specifically, how might it affect a jury in deciding the guilt of a criminal defendant? 

    

     Unsurprisingly, numerous studies have shown that physical appearance does indeed bear weight on a juror’s perception of a defendant. In a study done in the Journal of Research in Personality, researchers found that a physically attractive person is more likely to be found less guilty than a less attractive person while they are charged with the same crime. Another study showed that physically attractive individuals found guilty of a particular crime are more likely to receive more generous sentences than less physically attractive defendants. Additionally, a study published in the Journal of Applied Social Psychology found that physically unattractive defendants are considered to be more dangerous than physically attractive offenders in sex-related crimes.

    

     In many of today’s courtrooms, jurors and defendants alike are required to wear masks during trial. This creates a new problem in the courtroom- does wearing a mask help or hinder a criminal defendant’s case? The jury is still out on this one. One the one hand, we know that research exists proving that appearance can alter juror’s opinions of defendants, so it is a logical leap to conclude that covering one’s face could do the same. Some attorneys feel that covering your mouth, and therefore your smile, automatically makes one less attractive.  Others think it makes a defendant look “guilty,” because it appears that they have no reactions to the trial going on around them.  On the other hand, a recent paper in the Journal of Applied Research in Memory and Cognition suggested that mask wearing has no effect at all, stating, “The face is not a reliable source of information; therefore, depriving observers of parts of the face ought not to hamper them when detecting deceit. It may actually benefit them if it means that they will focus on speech content instead.”  Of course, the decisions a jury makes are influenced by a multitude of factors that can never completely be accounted for, but it never hurts to look the part you’re trying out for.

The Woman Juror: How we got here and the challenges we still face

 As a practice deriving from English common law, women have historically been excluded from serving on juries.  Blackstone's famous explanation for this prohibition was that the female was excluded "propter defectum sexus" - which means "on account of a defect of sex."  This is largely based on the belief that a woman's "sphere" was in the home.  Another explanation of why women were left off the jury is the idea that women were not as "rational" as men - meaning they let their emotions get the best of them.  Despite the fact that the Civil Rights Act of 1957 gave women the right to serve on federal juries, this practice was implemented throughout the United States until 1973 - when Alabama was the last state to pass legislation.  In Taylor v. Louisiana, the United States Supreme Court stated that "the Sixth Amendment's fair cross-section requirement mandated that states draw juries from venires in which women were not excluded as a class."  The court went on to explain that "community participation in the administration of the criminal law... is not only consistent with our democratic heritage but is also critical to public confidence in the fairness of the criminal justice system."

Original drawing for "Studies in expression. When women are jurors" cartoon by Charles Dana Gibson. First published 23 October 1902 in Life on pages 350–351.

While the Supreme Court has intervened and legislation has been passed (on a federal and state level), women are still being discriminated against during voir dire as a result of peremptory challenges.  Although the number differs between jurisdictions, attorneys have a certain number of peremptory challenges during voir dire.  Peremptory challenges differ from "for cause" challenges in that the attorney does not have to provide a reason for striking the juror.  However, if a reason is needed, it must be for a reason other than gender (or race) - which is often another characteristic of the juror and is often pretext.  There is much evidence of abuse of this device to discriminate based on race and gender.  The Supreme Court held in Batson v. Kentucky that the Equal Protection Clause of the Fourteenth Amendment governs the exercise of peremptory challenges by a prosecutor in a criminal trial.  Almost a decade later, the Supreme Couty decided to combat gender discrimination regarding peremptory challenges in the case J.E.B. v. Alabama ex rel. T. B.  In this case, the Supreme Court held that peremptory strikes based solely on gender violates the Equal Protection Clause.  Justice Blackmun stated "gender simply may not serve as a proxy for bias."  A Batson challenge can be brought if an attorney is suspected of using peremptory challenges to strike potential jurors based on their race or gender.  However the burden is largely on the proponent and these types of challenges are difficult to win. 

A diverse jury is an essential element to ensure a fair trial outcome.  Gender is only one component that makes up an individual and therefore stereotyping based on this characteristic often leads to inaccurate results.  According to one study, female jurors are more likely than male jurors to convict the defendant in a rape case.  However according to a different study, female jurors can be more skeptical of the victim than male jurors because of the shared life experiences.  Therefore, attorneys should be cautious of striking a potential juror solely based on her gender, and more concerned with asking her individualized questions during voir dire. If voir dire is appropriately conducted, reliance on stereotypes is unnecessary and illogical, because the attorney can strike potential jurors for what they actually know about the individual, instead of striking jurors for what they assume they know about the individual.

Failure to Keep Jury Decisions Records - Due Process Violation?

Jury Unanimity: A Constitutional Requirement 

        In Ramos v. Louisiana, the Supreme Court held that defendants in criminal trials cannot be convicted by non-unanimous juries. These practices were permitted in Louisiana and Oregon, and the Supreme Court ruled that these laws are unconstitutional. The Court sided with Ramos in finding that the Sixth Amendment's unanimous jury requirement was fully incorporated against the states. Despite this finding, last year, in Edwards v. Vannoy, the Court decided that the Ramos ruling created a new law and reserved the issue of retroactivity for the states. After this ruling, Oregon lawmakers have been contemplating ways to address this issue and are in the midst of discussing SB 1511. However, the Ramos decision highlighted a significant problem within our system - the failure to record juror decisions in some jurisdictions. At Lewis and Clark Law School, Professor Kaplan notes that while Louisiana has been polling juries for a long time and keeping the data for eighty-six years, Oregon has had no system to keep a record of this. Suppose unanimity is a constitutional requirement inherently granted to all defendants as held by the Supreme Court. How do some jurisdictions lack the foundation to implement or maintain a system that keeps a record of jury decisions?  

A Due Process Violation

        SB 1511 proposes that those who have final judgments and are incarcerated can file a petition for post-conviction relief indicating that they had a unanimous jury conviction. However, it's not as easy as it seems because the individual is responsible for proving that they were convicted by a unanimous jury. As Professor Kaplan notes, "the truth is, the majority of people who likely had unanimous juries don't know and will never have any way to prove it." This is chilling for multiple reasons, but more specifically has a significant chilling effect on a defendant's Due Process rights.

        John Wentworth, the Clackamas County DA, recognizes that while the Oregon Supreme Court may hold that the law must apply retroactively, they will not outline a particular procedure or process as to how to implement this effectively. Lawmakers are essentially left blindly creating a solution for a problem that they definitively cannot solve simply because they did not keep records. We have constitutional safeguards in place for defendants to ensure a fair and impartial process. Still, the failure to record jury decision-making directly encroaches on those safeguards. This inherently delegitimizes the trial by jury system and only furthers distrust of the criminal justice system, especially by marginalized communities (who are more adversely impacted.) 

Juries and Expert Witnesses: A Balanced or Toxic Relationship?

 As with any legal inquiry, the answer is: it depends.

Federal Rules of Evidence: Rule 702

Rule 702 states that an expert witness's testimony is admissible if: 

"A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case."

Fed. R. Evid. 702

In 1993, the Supreme Court in Daubert created a non-exhaustive list of factors to consider when evaluating expert testimony admissibility. Later, Rule 702 was amended to the current version shown above to broad factors that include those enumerated by the Supreme Court. As common practice, "exclusion of expert testimony is the exception rather than the rule." 

Juries and Expert Witness Testimony

Why even bother with expert witness testimony if it is ultimately up to the jury to act as the factfinder and determine liability? As mentioned in a variety of case studies, some cases involve very technical issues that do not arise in daily lives of common people. Some cases need a medical expert to describe a victim's injuries and/or how those injuries may occur. Other cases need a business expert to describe what all the numbers mean and how they relate to each other to show a mismanagement of funds. However, when an expert is needed to further explain a complex issue, expert witness testimony is one of many forms of evidence lawyers should rely on. At the end of trial, it is still up to the jury to decide whether the testimony is credible and reliable or if other evidence was presented to overcome the expert's opinion. 

A juror's task is to evaluate all the facts and testimony presented at trial without bias and in a fair manner. But what if the expert is using highly technical terms and does not break it down into digestible pieces for the jury? Then, the expert's testimony is usually lost on the jury, and the jury is less likely to rely on that expert's testimony. It is important for lawyers to practice with their expert witnesses to present an engaging, understandable story with unambiguous language.

However, there is a power struggle between an expert and a layperson on a jury. Sometimes jurors defer to experts because they are clearly more knowledgeable in the subject matter. With that being said, in a simulated situation, jurors valued an expert's high expertise and extensive time researching and practicing in their field of expertise. But a survey showed that the jurors did not let the expert's expertise sway their final verdict. They considered all evidence presented, as they should, before deciding on their final verdict.

After many case studies on this issue, there are three main takeaways. First, it is vital for lawyers to prep their expert witnesses to tell an engaging story that the jury will be able to understand instantly. Second, a judge has discretion under the Federal Rules and caselaw on whether to admit the expert's testimony. And third, proper display and organization of other evidence in addition to expert testimony will encourage juries in their fact-finding capabilities on reaching a fair and just verdict.

It is up to judges and lawyers to make sure there is a balanced relationship between juries and expert witnesses.

The Deep Pocket Effect in Civil Damage Awards

Within the last twenty years, the number of excessively high civil damage awards has grown exponentially. Juries, for a variety of reasons, are entrusted to compensate a victim in civil tort cases. Indeed, a term coined for these type of verdicts is the nuclear verdict,  which describes a vast amount of money that a jury awards the winning party. So why have jury verdicts increased in recent years? Among the various factors, one justification is that juries will award damages because of a growing distrust in larger businesses and corporations. The idea in some of the public's mind is a perception that larger companies should be held more responsible and to a higher standard than an individual defendant. This is certainly one factor that may be contributing to these high damages awarded. 

Billion Dollar Awards

Not only are juries compensating the victim or injured party, but they also seek to send a message to larger companies. One message of high civil damages is that it sends a message to larger companies to stop anti-social and destructive behavior against members in the community. For example, a recent Texas jury awarded a Plaintiff $301 billion dollars in damages against a bar in Corpus Christi. Although the jury awarded the Plaintiff roughly $1 billion in actual damages, the jury awarded also awarded $300 billion in punitive damages. Though it is unclear if the Plaintiff will be fully compensated for the $301 billion award, because the bar is now closed and having insurance coverage to cover that high an amount is incredibly unlikely. Another example of a deadly trucking crash, ended with a $730 million dollar award against the employer of the driver. Because of the potential for high jury awards against companies, there is a real concern for insurance companies and certain industries. Some are lobbying for protections in the legal system. 

HB19 

In the trucking industry, the large jury awards within the industry caught massive attention of trucking companies. After all, such an award could potentially whip out a trucking company. For instance, in Texas, the trucking industry recently lobbied for changes in Plaintiff's lawsuits. The American Trucking Association successfully convinced the Texas Legislature to pass HB19 which requires a Plaintiff to first sue the truck-driver in an automobile accident before filing suit against the operator or owner of the trucking business. Not only that, but the Court must first find the truck-driver liable before a Plaintiff may file suit on the employer. 

One legal article, calls this a bifurcated trial. With the first phase, determining driver liability, and the second part determining the employer's liability. Procedural protections for companies, such as these, might be effective because they will create extra costs and steps in the litigation process for Plaintiffs. Additionally, they create an extra barrier to a lawsuit of an employer who might have deeper pockets. Companies are aware that juries will award excessive damages against companies. For example, a report from the American Transportation Research Institute found that jury verdicts for trucking related awards rose roughly 500% from 2017 to 2018. Because jury verdicts for civil damages against larger companies continue to increase, it is almost certain that more industries will continue to lobby for tort reform and attempt to make a Plaintiff's case more difficult. 

Jury Instructions Do Not Instruct

Jury instructions can make the world of a difference in a trial. Well-drafted instructions can help bring together your entire trial strategy by focusing the jury on the critical issues in the case. However, on the other hand, if not drafted properly, jury instructions can leave the jury confused, which often happens. The complexity and linguistic construction of jury instructions can hinder jurors’ ability to comprehend and apply the law.  Remember, lawyers come across legal jargon daily, jurors do not. Thus, jury instructions tend to be confusing and mysterious to non-lawyers who are unfamiliar with legal jargon. 

Study on Jury Instructions:

A nationally recognized expert on jury behavior constructed a project that was funded by the American Bar Foundation and the National Science Foundation that studied fifty civil juries. The study found that jurors are very attentive; they notice everything from an attorney’s posture to the brow sweat on a defendant. The observances that jurors make help them develop the most plausible reconstruction of events that led to the trial. They “focus on inconsistencies in behavior and testimony[;] are sensitive to sources of witness interest[;] draw on common knowledge and personal experience[;] search for reference points[;] and attend to legal instructions.” (Emphasis added). However, jurors  have previously struggled in relying on jury instructions as there have been substantial failures in the jury instruction process. 

According to the study, the most common issues with jury instructions are language problems and omitting any mention of issues the jury should not answer. To top it off, when jurors ask for an explanation while deliberating, attorneys and judges do not really help. More often than not, judges and attorneys are too afraid to engage the jury so they “just let [the jury] figure it out.”

Jury Instructions That Instruct: 

Well-crafted instructions require preparation and strategy. Nevertheless, at minimum, jury instruction should identify the critical issues of the trial, and guide the jury in understanding the law that governs their decision. Without instructions that identify the critical issues of the trial and that guide the jury in understanding the law that governs their decisions, jury deliberations would be ineffective (e.g., free-for-all discussions).

Tips and tricks to enhance jury instruction:

1. Provide jury written instructions for each juror. Although the judge makes the ultimate decision to provide jurors with instructions or not, you should always request jurors be given a copy of the instructions. In fact, there are studies showing that reading is easier than listening.
2. Write jury instructions in plain language by avoiding legal jargon. You should construct instructions in the language you spoke before you entered law school, understandable to friends and family who do not practice law. 
3. Attend to the relationships among the instructions. It is important to relate your instructions to the facts of your case. Additionally, providing steps would be helpful (e.g., "if you find that all the elements are met, go to instruction 12"). 
4. Read your instructions aloud to someone who knows little to nothing about the case. If they understand the instructions, your jury should too. 

Crafting good instructions can help you win your next case!

Reducing Jury Diversity: Strict Jury Exclusion of People with Criminal Records

Every state has some form of jury exclusion. The state laws bar people with criminal convictions (or pending charges) from serving on juries. There are two key factors: the types of convictions that trigger exclusion and how long the exclusion lasts. 

Ginger Jackson-Gleich, Policy Counsel at The Prison Policy Initiative (PPI), released a report in 2021 called Rigging the Jury. It examined the varying states’ jury exclusion laws. As it differs from state to state, 43 states prohibit anyone with a felony conviction from being on a jury, 21 states prohibit current and past felons from serving on a jury indefinitely, and 6 states indefinitely prohibit jury for current incarceration, all past felony convictions, and some past misdemeanors. 

 

The report found approximately 19 million Americans with felony convictions in 2010. Of the 19 million, 7 million were Black, which means about one in three Black men have a felony conviction. Even though the report does not have specific data for Latinx people, other studies show that Hispanic people are more likely to be incarcerated than non-Hispanic whites as they are overrepresented at numerous stages of the criminal justice process. The data is sparse because information about Latinx heritage has not always been collected or reported accurately within the criminal justice system.

 

In Texas, current incarceration, all past felony convictions, and some past demeanor convictions trigger exclusion from serving on a jury. Texas is one of the six states who have the strictest jury exclusion laws that ban these people from jury service forever.

 

This brings up a couple of arguments. First, the argument in courthouses is that minority defendants are deprived the promise of a “jury of their peers.” A lack of racial diversity in juries is partially caused by prohibiting people who have been convicted, or accused, of crimes from serving on juries. Therefore, it is argued that people’s protected right of a fair trial by jury under the Constitution is being harmed or violated. 

 

Second, studies have shown that diverse jurors in a trial foster curiosity. In one of her other studies, Jackson-Gleich showed when white members were a part of a racially mixed jury, they “raised more case facts, made fewer factual errors, and were not amenable to discussion of race-related issues.”

 

There is a possibility of change in this area of the justice system. California recently passed legislation that ends permanent jury duty exclusion for people with felony convictions. However, the reformation of jury exclusion laws to create more diverse juries is highly dependent on each state taking the initiative to change their legislation.

Palin’s Press Problem is Our Problem, Too

Introduction

        In Sarah Palin’s defamation case against the New York Times, jurors received push notifications that the judge dismissed the case while in deliberations. Juror sequestration is an age-old issue, but the smartphone era has provided new challenges as jurors’ lives are more intertwined with media.

In light of Palin’s case, we must ask: does trial publicity interfere with fair trials and if so, how can we fix it?

Palin’s Defamation Case

        Sarah Palin brought suit against The New York Times (“the Times”) for a 2017 editorial they published. In an editorial entitled “America’s Lethal Politics,” the Times had incorrectly implied that a shooting spree had been inspired by an ad circulated by Palin’s political-action committee. The suit charged the Times and its former editorial board editor, James Bennet, with knowingly publishing false information about her. 

        On Friday, the jurors began deliberations. Three days later, U.S. District Judge Rakoff stated in open court that he would dismiss the case regardless of the jury’s decision. Judge Rakoff ruled that Palin failed to prove that the Times acted with “actual malice,” which is an essential element to her case. Palin couldn’t show that the Times had knowingly published a false statement or acted with a reckless disregard for the truth, according to Judge Rakoff. However, the Judge did not share this ruling with the jury. He planned to let deliberations conclude because a verdict could benefit a potential appeals court. Neither side objected to Judge Rakoff’s plan. The Judge cautioned the jurors that they should avoid news coverage of the trial. 

        Nevertheless, that afternoon, jurors involuntarily received push notifications on their phones (ironically, from the Times) that Judge Rakoff had decided to dismiss the case regardless of the jury’s verdict. On Tuesday, after another four hours of deliberations, the jury unanimously ruled against Palin. 

Unfair Trials are a Result of a Free Press

        Palin’s trial could lend ammunition to the argument that the United States neglects its commitment to fair trials in favor of free press principles. Studies have established that “pretrial publicity can influence evaluations of the defendant’s likability, sympathy for the defendant, perceptions of the defendant as a typical criminal, pretrial judgments of the defendant’s guilt, and final verdicts.” 

        Courts have used several devices to ensure jury partiality, including gag orders and jury seclusion. However, only the most extreme measures would have prevented involuntary push notifications. In high profile cases, therefore, judges should be cautious to present inadmissible information in open court. Additionally, judges could instruct jurors to disable news apps on their phones to avoid tainting the jury pool. Regardless, particularly in high profile cases, judges must stringently guard the jury against media bias.

Bad Blood: A Glimpse at Jury Deliberations

 

Business Insider. Artist: Vicki Behringer

    After 17 weeks of trial and a weeks-worth deliberations, Elizabeth Holmes, the former CEO of now-defunct blood testing company Theranos, was found guilty on four charges. Deliberations took place over seven days, that spanned two weeks at the end of December into January 2022. The jury found Holmes guilty on three counts of fraud and one count of conspiracy to commit fraud related to defrauding investors; not guilty on four charges related to defrauding patients; and were unable to reach a verdict on the three remaining charges related to defrauding three other investors.

 Inside Jury Deliberations

    Following the verdict, jurors discussed their experience throughout the trial, shedding some light on what a lengthy deliberation looked like for the dense and complex case. Deliberations occurred in an adjoining courtroom where the jurors had more space – with one juror consistently arriving early to take the judge’s seat throughout deliberations. The jurors unanimously voted for a foreman and took an anonymous vote on all eleven charges before beginning deliberations. From juror’s descriptions, it appears the jury followed an “evidence-driven deliberation,” moving through the evidence and discussing the evidence and arguments presented to reach a consensus. (American Juries, Vidmar & Hans, 2007 (143)).

    Notably, Juror 11 recalled the sheer amount of evidence and witness testimony the jury had to discuss. He recalled the jurors covered the court room walls with oversized sticky notes to map out their discussions. In discussing the 32 total witnesses presented, the jury came up with a star system from 1 to 4 to rank the credibility of each witness, with 1 star being the lowest and 4 stars being the most credible. Former Defense Secretary General Jim Mattis received a 4, while Elizabeth Holmes herself received the lowest score of 2. Juror 11 noted that this low score was heavily influenced by the fact that Holmes had a high likelihood of spinning her testimony to make herself appear in the best light, as she had the most at stake in the outcome.

    Juror 11 stated that jurors each raised points and counterpoints, with Juror 11 frequently offering points made by the defense. Juror 6 reported that a unanimous verdict on the first eight counts within three days but remained divided on the remaining three charges. Two jurors reported that a majority of the jurors were on the side of guilty for the three charges that eventually would result in no verdict.

 The Jury’s Narrative

    Both Juror 6 and Juror 8 are quoted as pointing to the jury’s belief that Holmes had originally started out with genuine intentions of making a difference and truly believed in her company’s mission. Jurors receive, filter, and understand trial presentation through their own schemas or scripts based on their personal and lived experiences, understanding of social norms, and biases. (Vidmar & Hans, 133). This understanding of Holmes’ genuineness may have influenced the jury’s deliberations and ultimate not guilty verdict on a portion of the charges.

    Several jurors noted that Holmes testimony alleging abuse at the hands of former boyfriend and Theranos CFO was generally believable, but was out of place in trial, with one noting “[t]here was a certain amount of cynicism that it was a sympathy ploy.” Here, the jurors still fit the evidence into a narrative but rejected the weight of this portion of the narrative in light of other evidence specific to the fraud charges (such as a doctored document and false financial statements). Ultimately, the jurors seemed to focus on each charge as a separate narrative, as evidence by the divided verdict.

Tips For Drafting Effective Jury Instructions

     More often than not, juries can be misled in deliberation by unclear jury instructions. When instructions are confusing or contain legal language that is not easy to understand, the jurors tend to ask more clarifying questions, which makes the deliberation process even longer. 

    As lawyers, it is within your control to draft jury instructions that the jury can understand and that can help you win the case. First and foremost, jury instructions should identify the issues that the jury is being asked to decide and include the applicable law. Helpful explanations of the law should be included so that the jury can apply it to the facts and evidence presented. Often, lawyers fail to recognize that by drafting solid jury instructions and having those instructions be adopted for the jury to use, they are capitalizing on another opportunity for their theory of the case to be heard by the jury. 

    Here are some tips and tricks to write effective jury instructions that will allow the jury to best understand the issues and hear your theory of the case.

1. When crafting the instructions, especially if there are cross-claims or counterclaims, use the plaintiffs and defendants names. Defining the names of the parties in a trial consistently will help the jurors understand how the issues apply to the characters involved. In civil cases, using the party's name like, "Mr. Smith" rather than Plaintiff makes the person seem more human and it makes the charges more real in the minds of the jurors when they feel as though a person's rights are at stake. However, using names rather than specific terminology in criminal cases can be more difficult. For example, referring to the prosecution by his or her names is misleading because the case is technically being brought by the State. 
2.  For jury instructions to be effective, they must be simple and clear. Each point should be explained in a singular fashion. Definitions of important terms should be included. All necessary explanations should be concise and to the point. Examples and illustrations are helpful to include to clarify difficult points. Instruction should be separated by topic and be directly related to the circumstances of the case. 
3. Provide valid steps to direct jurors on when to deliberate and in what order to decide the issues. For example, in a breach of contract case, it may be best to tell the jurors to first determine if there is a valid contract. Providing a frame work within each issue is also instructive. Sticking with the contract hypothetical, listing the elements of a valid contract and explaining what each element entails will help the jurors determine how the factual circumstances of the case fit into the frame work.
4. Once the instructions are drafted, have someone read them that is not a lawyer. Having a non-lawyer read the instructions will show if the instructions can be understood by someone that does not have a legal background. Word choice can be critical in making sure the instructions are clear. Having this person explain the instructions to you will show you what the jury may take away from what you have drafted. This will allow you to make changes and adjust your wording so the instructions are universally understandable. 

    Overall, using the jury instructions to your advantage as an additional opportunity to share your theory of the case with the jurors is critical to success. But, the jurors must be able to understand your instructions to understand your theory. Therefore, draft to your advantage with a keen eye for clarity. 

    

Down in the DM - Social Media’s Threat to the Impartial Jury

“Don’t friend the defendant on Facebook, and please do not slide into their DMs.”

This phrase has more or less made its way into model jury instructions across the country. The issue of jurors looking up parties in a case on social media—and in some cases, contacting them—has resulted in mistrials and hefty consequences for jurors. As social media has become a prominent part of everyday life, courts are taking extensive measures to mitigate its impact on trials.

For example, a juror in the UK was sentenced to eight months in jail after friending and Facebook messaging a defendant in the trial to which she was a juror in. The juror messaged the defendant while jury deliberations were ongoing, revealing “highly sensitive” details about the deliberations for the other co-defendants. Consequently, the case collapsed, and the juror was held responsible. 

Here in the US, a similar incident occurred with a Texas juror. The juror, who felt a great deal of sympathy for the defendant in an auto wreck case, attempted to friend the defendant on Facebook after trial recessed for the day. The juror was dismissed from the case, pleaded guilty to four counts of contempt of court, and received a sentence of two days of community service.

In a more indirect form of contact, a juror’s decision to look up a defendant on LinkedIn during trial raised concern of potential juror misconduct. Despite the juror only looking at the profile, LinkedIn sends automated notifications to its users disclosing who has viewed their profile and when. While the judge in this case ultimately found that no misconduct had occurred, these incidents raise awareness to a larger issue jury service faces in the day and age of social media. 

While jurors may be less likely to make blatant contact with parties in the trial to which they are serving, they may still feel inclined to do their own form of “social media stalking” outside of the courtroom. Attorneys work incredibly hard to paint a favorable picture of their case and client within the four walls of the courtroom. Outside research by juries has the potential to hinder these efforts.

While it is nearly impossible to limit juror use of the internet or social media during trial, courts continue to take steps to mitigate its impact. For example, a federal judiciary committee issued model jury instructions that heavily warn against the use of social media during trial. The instructions warn against using social media to communicate with other jurors and parties, conduct outside research, post about the case, and even warn against using fake social media accounts. Other courts in states like California and New York have also implemented fines for jurors caught using social media improperly during trial.

Social media is not going away, and if anything, will continue to present more complex issues for courts. While unavoidable, courts and parties can continue to take steps to mitigate its effect.