Archive for the ‘Challenges to the jury system’ Category
As you know by now, I edit The Jury Expert for the American Society of Trial Consultants and we try to alert you when new issues upload 4 times a year. This issue is special since it focuses on the perhaps premature reports of the death of the civil jury trial. Here’s the Editor Note from the new issue of The Jury Expert explaining how it all evolved and with some extra links thrown in so you can go directly to the articles themselves. –Rita
When we at The Jury Expert saw Renée Lettow Lerner’s writing on the collapse of the civil jury system in the Washington Post when she guest-blogged for the Volokh Conspiracy it was clear the ideas she expressed were not ideas that resonated with our own experiences in the courtroom. So we asked her to write for our readers here at The Jury Expert and she graciously agreed. Professor Lerner discusses her perspective and a trial consultant (Susie Macpherson) and a well-known litigator (Tom Melsheimer) offer very different points of view.
After Professor Lerner’s thoughts on problems with the US justice system, we have an article on changes in the Swiss civil system as they moved to abolish jury trials. This article is by two Swiss scholars (Gwladys Gilliéron and Yves Benda) and an American scholar (Stanley Brodsky). It describes the existing Swiss system and how abolishing the civil jury trial changed (and did not change) the application of justice in Switzerland.
Shortly after Renée Lerner’s work in the Washington Post, Adam Benforado wrote an excerpt from his new book UNFAIR that was published at The Atlantic website and titled: “Reasonable Doubts About the Jury System: Trial consultants allow the affluent to manipulate the biases of those who judge them, putting justice up for sale”. As you might expect, the article isn’t likely to fit the point of view of most trial consultants, so his viewpoint is important for any trial consultant to understand. I contacted Professor Benforado, and invited him to write an article for us that addressed the issues he raised in The Atlantic. He agreed, in the face of knowing there was vigorous disagreement among trial consultants with the position he took in The Atlantic. His article elicited thorough responses from Diane Wiley (representing all trial consultants), Jason Barnes and Brian Patterson (representing visual trial consultants), and Stanley Brodsky (representing academic and research trial consultants).
Following those first three articles about problems in our justice system, Hailey Drescher (a trial consultant) offers an interview with Steve Susman (a well-known litigator) and Tara Trask (a trial consultant) on Susman’s new Civil Jury Project at New York University. This ambitious, long-range project is unlike anything that’s been done before in this country and will attempt to examine the civil jury trial and offer suggestions for improving it. Read the interview if you want to know more about this project or the upcoming conference they will be sponsoring.
Then we move on to other exciting new research and ideas on the jury system from here in the United States. Krystia Reed and Brian Bornstein (academic researchers) offer recommendations on how to use joinder differently if you are in a civil versus a criminal trial. Sonia Chopra and Charli Morris (trial consultants) respond to this article and offer insightful questions and suggestions on implementing the research. Richard Gabriel (a trial consultant) saw the issue of peremptory strikes in the New York Times (again) and provides us with new ways to think about strikes (both peremptory strikes and strikes for cause). Allen Campo (a trial consultant) describes a newer way he’s been helping attorneys understand their cases—he calls it a feedback group. And finally, Bill Grimes updates us on the research literature about deception—do we know how to tell who’s lying yet?
It’s an intriguing quandary—the numbers of civil juries are declining, yet there is a plethora of ideas, programs, research, and strategies for improving our ability to work together to improve litigation advocacy. Is our system dying? That is questionable, although it is undoubtedly changing, as it always has. The energy around these new and exciting ideas makes me think perhaps our system isn’t dying. It is merely evolving and thus has to face hard questions as a new definition of our justice system emerges.
The role of trial consultants has evolved over time, as well. The idea that the trial consulting profession contributes to bias (while most trial consultants feel they are in the business of rooting out bias, not creating it) produced deep reactions from responders who are members of the American Society of Trial Consultants. Many of the founders of the profession are still alive and actively practicing—trial consulting is a young profession. I appreciate the measured responses from our trial consultant members in this issue and I appreciate the generosity and courage shown by Renée Lettow Lerner and Adam Benforado in writing about and standing behind their convictions despite disagreement. Both their offerings and the thoughtful commentary by ASTC members give us all much to consider. Combined, these contributors keep The Jury Expert an intellectually and morally stimulating forum, for which we are all grateful.
It’s no party for the sequestered juror. No morning paper. No TV. No internet cable or WiFi access in your room. No phone. They even take the Bible from your bedside table. While jury sequestration is often requested in high-profile trials, it is rare to actually have it happen. Jodi Arias asked for it and was refused. So did Conrad Murray. Casey Anthony’s jury was sequestered for 43 days—and rather than do an official change of venue, the jurors in her case were chosen in Clearwater, Florida and then shipped 100 miles to Orlando, Florida without access to cell phones or internet. Charles Manson’s jury was sequestered for 225 days. Manson’s jury held the record until the OJ Simpson jury was sequestered for 265 days.
Circuit Court Judge Debra Nelson’s recent decision to sequester the Zimmerman jury means all 10 people [6 jurors and four alternates] will stay in a “hotel for the duration of the trial, which is expected to take two to four weeks”. While the Zimmerman trial is not expected to run longer than one month and the jury selection itself is expected to take at least as long as the trial, “it cost the state of Florida $350,000 to sequester the jury in the Casey Anthony trial for 43 days”. Judge Nelson reversed her initial decision not to sequester the jurors after several jurors appeared to be trying to obtain seats on the jury for their own personal reasons.
“A potential juror at the George Zimmerman trial who told the court he had little knowledge of the case apparently indicated otherwise on Facebook. “I CAN tell you THIS. ‘Justice’…IS Coming,” the juror appeared to write of the Zimmerman case on the Facebook page for the “Coffee Party Progressives,” a page with which he was confronted in Judge Debra Nelson’s courtroom.”
Supporters of sequestration say that the isolation means you hear the evidence without media bias or community pressures. You focus on the evidence and make a decision based on what is admissible and not what is posted on social media sites or discussed in the ever-present media. Jurors who are sequestered bond and some say they can thus deliberate more collaboratively.
Critics (and they are many) say that sequestered jurors get “too chummy”. They begin to think so similarly that the goal of a group coming together with diverse opinions is completely lost to “group-think”. There is a very real possibility that jurors will be irritated by being cooped up for so long and stop paying attention, react against both parties, et cetera. And sometimes, they fall in love or various permutations on that theme.
Finally, it is often said (in hindsight) that jurors fail to deliberate thoughtfully following sequestration because they “just want to go home”. This “just want to go home” theory was often used to explain the “quick” Casey Anthony jury’s ‘not guilty’ verdict. Over the last 20 years I have interviewed thousands of jurors and mock jurors, and this is not my experience. Jurors invariably take their responsibility very seriously. Given the seriousness with which jurors approach their task, this idea simply is simply wrong, as I explained at the time on CNN’s Opinion page.
Still others question if it can even make sense anymore in our lives of constant media saturation to sequester juries. Attorneys still seem to think so. Three recent examples of why attorneys request sequestration are the Google mistrial rationale, the Nancy Grace mistrial rationale, and the Media meddling rationale.
Google mistrial rationale: “In an age when Google is a verb, and many rely on their phones to wake them up, schedule their lives, and pay their bills, is it still reasonable to expect juries to make decisions in a vacuum? Yet sequestration may be the only option. Judges have struggled to keep up with a growing number of outlets, and ‘do not communicate’ about the case has become ‘do not Tweet’.”
Nancy Grace mistrial rationale: Nancy Grace’s constant pro-Prosecution coverage of the Casey Anthony trial resulted in the Conrad Murray Defense requesting sequestration at least while Nancy Grace was on the air. “Attorneys for Dr. Conrad Murray said the case should be sequestered to prevent the panel from being influenced by media reports. Specifically, the jury should be sequestered during the hours that television pundit Nancy Grace is on the air.”
Stop the media from meddling rationale: “Lawyers for accused serial killer James “Whitey” Bulger today threatened to ask to have his jury sequestered for the anticipated four-month duration of his blockbuster trial, arguing the Boston Globe is poisoning the pool in its fight to free two reporters from the defense witness list.”
The financial troubles in the court system coupled with the strains sequestration places on jurors and complicated by the fears (and often reality) of public attacks on jurors rendering an unpopular opinion, will make juror sequestration a hot topic for years to come.
[If you still want to know more about this topic, you can see an April 2013 slide show on sequestration (with all the nitty gritty details) here.]
Despite the constant headlines about frivolous lawsuits and ridiculously high awards, when the GAO came out with a report on lawsuit awards back in 2003, it received little fanfare even though it strongly contradicted media reports of excessive jury awards. The same results have been seen every year. Now it’s 2011 and we’re hoping a new report gets a bit more attention.
This time it’s a report from the Center for Justice and Democracy, a nonprofit consumer group. The Center uses data from the Department of Justice and other sources to point out that juries seldom award punitive damages in addition to compensatory awards. Further, when punitive damages are awarded, they tend to be fairly modest (a median of $64K in 2005).
Key findings from civil trial data in the nation’s 75 most populous counties include:
“Winning plaintiffs received punitive damages 6 percent of the time in 2001, and 5 percent of the time in 2005.
From 2001 to 2005, the percentage of successful medical malpractice plaintiffs awarded punitive damages dropped from 4.9 percent to 2.6 percent.
From 2001 to 2005, the share of winning plaintiffs awarded punitive damages in product liability trials dropped from 4.2 percent to 1.3 percent.”
Hardly an example of runaway juries. In fact, as author Emily Gottlieb says,
“The availability of punitive damages protects us all by holding wrongdoers accountable for egregious misconduct and deterring its future occurrence. Laws that restrict punitive awards place the public at serious risk, and lawmakers should not be misled by falsehoods spread by corporate special interests about this most valuable and important feature of our civil justice system.”
We all like to think we are independent thinkers, assessing the facts and evidence before us and drawing conclusions that make sense based on new information that comes in. If you, like us, have spent time observing through darkened windows while focus groups or mock juries deliberate (and eating way too many M&Ms) you know it isn’t true.
We hope you’ll read the complete report from the Center for Justice and Democracy here. And that you’ll forward the report to your friends and to opposing counsel. That you’ll blog about it. We need to spread the word. Don’t let history repeat itself. Spread this new report far and wide.
Gottlieb, E. (2011). What you need to know about punitive damages. Center for Justice and Democracy.
I was flattered to be invited to address the Eighth Circuit Judicial Conference last week, on the topic of “Social Networking and Other Evils of the Internet in Jury Trials.”. I joined US District Judge Donald Molloy (Montana), Andrea Henson-Armstrong (Federal Judicial Center in DC) and Tom Waterman (Lane & Waterman, PC, Davenport, IA) in our discussion of the issues, including the ways that jury instructions are being revised and why some jurors appear to refuse to abide by the admonitions of the court. I also provided an updated and expanded version of the 2009 KTC paper on this subject, which includes current case law and proposed versions of jury instructions. You are welcome to a copy of the paper here.
Judges like to be listened to and obeyed. No surprise there. Part of my hope is that through the panel presentation, the judges were able to understand how society has changed over the last couple of decades, and how technology has become so second-nature to American citizens that many juror rule infractions are unconscious, while most others are well-intended, even if uninformed. If the goal is to achieve higher compliance among jurors, we will need to do a better job in readying them for their duties.
There are two main categories of violators of judicial admonitions regarding use of technology among jurors.
• The Innocent and Oblivious. Most who don’t follow the court admonitions don’t realize they are breaking the law. After spending the evening surfing the internet, they would tell the judge “I didn’t do research! I haven’t been to the library in years!”
This group needs to be clearly and fundamentally informed of the myriad ways we do research, including “just looking stuff up on the internet”. Use common language. Use personal examples. Explain why it is important, and don’t stop with the issuance of behavioral demands. Judicial edicts will not help this group obey the rules.
• The Angry and Defiant. This second group is more problematic. They include the subset of Americans who are angry and mistrustful of all branches of government, especially Federal. The judiciary is not immune from their anger, and there is a great deal of suspicion about the validity of the court’s authority, and the rules by which the court plays. “I hear what you are saying, but I will decide for myself what justice requires!”
To solve the challenge of this group, the court has to conduct, or otherwise allow, meaningful voir dire. Asking rhetorical questions about whether they will “follow the law as given to them” is not useful, and for the Angry/Defiant jurors it is an example of the problem, not the solution. If these people can’t feel that following the rules is an extension of their values and their beliefs, they can’t be counted on to abide by the rules or respect the judicial process. Send them home.
Also discussed during the panel discussion were problems with discoverability due to electronic open records, and the challenges associated with the fact that some jurors look up court documents, and some do searches on potential witnesses, parties, attorneys, and judges. Reference was also made to a chilling article recently published in the New York Times, “The Web Means the End of Forgetting.”
The program was, in many ways, cautionary. We all spoke as advocates and defenders of jury trials, and out of the conviction that it is not necessary for Web 2.0 to be another nail in the coffin of citizen participation in justice. The word needs to get out that the jury system is not anachronistic, but some of our traditions (edicts instead of explanations) and assumptions (judges are obeyed) clearly need to be revisited. If the federal judiciary is listening (and they were!), there is hope.
March has been a big month for juries in the news. Our last post on Twittering jurors was still fresh when the uproar over the issue of peremptory strikes began.
The original article proposing the elimination of peremptory strikes was published in the Wall Street Journal but the debate immediately hit law blogs all over the internet. Doug wrote this letter to the editors of the Wall Street Journal and it was also published in the March, 2009 issue of The Jury Expert.
Fairness, Justice and True Understanding:
The Benefits of Peremptory Strikes
by Douglas L. Keene, PhD
[President, American Society of Trial Consultants]
Your article of March 5, 2009, “Three Strikes and You’re Out? Critics Seek Juror-Dismissal Cap”, by Nathan Koppel, raises important questions about fairness and justice in the court system, but it ignores many dimensions of voir dire and the use of peremptory strikes that are crucial for true understanding.
As a psychologist and litigation consultant (and current President of the American Society of Trial Consultants), I am intimately aware of the complexity of discerning bias, and the affect that such bias might have on jury decision-making. Prof. Baldus makes some assumptions in his paper that are superficially tempting but not factual.
First, demographic differences, including race, are not normally the best predictors of juror attitudes. Our senior membership is asked to teach scores of education programs at law schools and legal seminars every year, and this is one of the consistent messages. If all you look at is the race of jurors, you are likely to over-simplify their attitudes, which are not usually driven by race at all.
What drives juror decision-making are core values, life experiences, and the way the juror views the world. There can be an intersection of these factors with the experience of living in a crime-ridden neighborhood, or having a friend who was assaulted, or not feeling that the police have the right amount of authority, for instance, but those attitudes transcend race. The same worries can exist equally in a white suburban homemaker as in an African-American urban retiree, and they could be the cause of a peremptory strike by the same trial lawyer.
One of the unfortunate trends in recent years is that courts have reduced the amount of time allowed for questioning jurors, and this raises the tendency to rely on demographics to ‘guess’ where to find bias, instead of actual information. Beyond that, in a world where people are struggling to keep up with mortgages, we lose far more jurors to the crisis of economic hardship than we do to peremptory strikes. The poor and those in vulnerable jobs (often under-represented in the venire under any circumstance) are thus least likely able to afford jury service.
Racism does exist, and racial stereotypes are out there, among the public and among some trial lawyers. What is far more important in jury selection is to understand whether those attitudes and biases are going to affect juror decision-making, and what the effect will be.
I am reminded of a research group I conducted on a personal injury case in which members of a Mexican-American family were severely injured in a motor vehicle accident. When considering damage awards, two jurors demurred that the medical, rehabilitation and lost wages damages should be very low, because the family (who had lived in the US for decades) might just go back to Mexico. Should we have been limited in our peremptory strikes? These people were not subject to a strike for cause, and in their hearts they did not feel themselves to be biased.
In an Alabama court, an entire community of African-Americans was suing for damages related to a massive chemical spill. One of the peremptory strikes was used for a white woman who sat at an angle in her chair for 3 hours during jury selection, never once even acknowledging the presence of the African-American juror to her left, while talking freely with all of the white jurors sitting around her. She denied any bias related to the race of the Plaintiffs, yet she could not even acknowledge the woman sitting 8 inches to her side.
Without peremptory strikes, fairness is what is lost. Americans are the beneficiaries of a system that is under a dynamic tension, with the considerations of the trial court under the scrutiny of an appellate system that keeps its eye on global ramifications, as well as those specific to a particular case. However imperfectly this legal system works, it does generally work very well. The unintended consequence of changes that Prof. Baldus proposes, and which Mr. Koppel appears to embrace, are that far more racial bias, as well as prejudice of other kinds, will overwhelm justice. Peremptory strikes are not merely a favored anachronism, they are an essential part of the justice process.