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Full-Text Articles in Law

Recent Developments: The Right To A Fair Cross-Section Of The Community And The Black Box Of Jury Pool Selection In Arkansas, Raelynn J. Hillhouse Aug 2019

Recent Developments: The Right To A Fair Cross-Section Of The Community And The Black Box Of Jury Pool Selection In Arkansas, Raelynn J. Hillhouse

Arkansas Law Review

A Washington County, Arkansas court conducted a hearing on October 15, 2018 on a criminal defendant’s motion to compel discovery to assure a fair and accurate cross-section of the community for the jury as guaranteed by the United States and Arkansas Constitutions. At the hearing, the jury coordinator for the Circuit Clerk’s office testified that counties may elect to use a state-sponsored jury selection computer program, or they may use proprietary programs. Washington County uses a proprietary computer program to select the jury pool from a list of registered voters. The clerk described how her office takes an ...


Influencing Juries In Litigation "Hot Spots", Megan M. La Belle Jul 2019

Influencing Juries In Litigation "Hot Spots", Megan M. La Belle

Indiana Law Journal

This Article considers how corporations are using image advertising in litigation "hot spots" as a means of influencing litigation outcomes. It describes how Samsung and other companies advertised in the Eastern District of Texas--a patent litigation "hot spot"--to curry favor with the people who live there, including by sponsoring an ice rink located directly outside the courthouse. To be sure, image advertisements are constitutionally protected speech and might even warrant the highest level of protection under the First Amendment when they are not purely commercial in nature. Still, the Article argues, courts should be able to prohibit such advertisements ...


Surprise Vs. Probability As A Metric For Proof, Edward K. Cheng, Matthew Ginther Mar 2019

Surprise Vs. Probability As A Metric For Proof, Edward K. Cheng, Matthew Ginther

Edward Cheng

In this Symposium issue celebrating his career, Professor Michael Risinger in Leveraging Surprise proposes using "the fundamental emotion of surprise" as a way of measuring belief for purposes of legal proof. More specifically, Professor Risinger argues that we should not conceive of the burden of proof in terms of probabilities such as 51%, 95%, or even "beyond a reasonable doubt." Rather, the legal system should reference the threshold using "words of estimative surprise" -asking jurors how surprised they would be if the fact in question were not true. Toward this goal (and being averse to cardinality), he suggests categories such ...


The New Impartial Jury Mandate, Richard Lorren Jolly Feb 2019

The New Impartial Jury Mandate, Richard Lorren Jolly

Michigan Law Review

Impartiality is the cornerstone of the Constitution’s jury trial protections. Courts have historically treated impartiality as procedural in nature, meaning that the Constitution requires certain prophylactic procedures that secure a jury that is more likely to reach verdicts impartially. But in Peña- Rodriguez v. Colorado, 137 S. Ct. 855 (2017), the Supreme Court recognized for the first time an enforceable, substantive component to the mandate. There, the Court held that criminal litigants have a Sixth Amendment right to jury decisions made without reliance on extreme bias, specifically on the basis of race or national origin. The Court did not ...


Prosecuting In The Shadow Of The Jury, Anna Offit Jan 2019

Prosecuting In The Shadow Of The Jury, Anna Offit

Faculty Scholarship

This article offers an unprecedented empirical window into prosecutorial discretion drawing on long-term participatory research between 2013 and 2017. The central finding is that jurors play a vital role in federal prosecutors’ decision-making, professional identities, and formulations of justice. This is because even the remote possibility of lay scrutiny creates an opening for prosecutors to make common sense assessments of (1) the evidence in their cases, (2) the character of witnesses, defendants and victims, and (3) their own moral and professional character as public servants. By facilitating explicit consideration of the fairness of their cases from a public vantage point ...


Do You See What I See? Problems With Juror Bias In Viewing Body-Camera Video Evidence, Morgan A. Birck Oct 2018

Do You See What I See? Problems With Juror Bias In Viewing Body-Camera Video Evidence, Morgan A. Birck

Michigan Journal of Race and Law

In the wake of the Michael Brown shooting in Ferguson, Missouri, advocates and activists called for greater oversight and accountability for police. One of the measures called for and adopted in many jurisdictions was the implementation of body cameras in police departments. Many treated this implementation as a sign of change that police officers would be held accountable for the violence they perpetrate. This Note argues that although body-camera footage may be useful as one form of evidence in cases of police violence, lawyers and judges should be extremely careful about how it is presented to the jury. Namely, the ...


Jury Selection In The Weeds: Whither The Democratic Shore?, Jeffrey Abramson Oct 2018

Jury Selection In The Weeds: Whither The Democratic Shore?, Jeffrey Abramson

University of Michigan Journal of Law Reform

This Article reports on four federal jury challenges in which the trial judge or defendants retained the author to provide research on jury selection plans. The research shows a persistent and substantial loss of representation for African Americans and Hispanics on federal juries, even though no intentional discrimination took place. Problems with undeliverable jury summonses, as well as failure to respond to summonses, were the main causes of departures from the ideal of cross-sectional jury selection. However, a cramped understanding of what it takes for a defendant to prove that minority jurors were systematically excluded, as required by Duren v ...


The Persistence Of The Probabilistic Perspective, Richard D. Friedman Aug 2018

The Persistence Of The Probabilistic Perspective, Richard D. Friedman

Articles

The publication now of an essay written by Craig Callen nearly a decade ago is cause for wistful celebration. Even while we are reminded how suddenly and prematurely Craig’s life ended, it is good to have one more academic contribution from him, especially because it is marked by the erudition, thoroughness, gentleness, and humor that characterized him.


Fairness In The Exceptions: Trusting Juries On Matters Of Race, Virginia Weeks Jun 2018

Fairness In The Exceptions: Trusting Juries On Matters Of Race, Virginia Weeks

Michigan Journal of Race and Law

Implicit bias research indicates that despite our expressly endorsed values, Americans share a pervasive bias disfavoring Black Americans and favoring White Americans. This bias permeates legislative as well as judicial decision-making, leading to the possibility of verdicts against Black defendants that are tainted with racial bias. The Supreme Court’s 2017 decision in Peña-Rodriguez v. Colorado provides an ex post remedy for blatant racism that impacts jury verdicts, while jury nullification provides an ex ante remedy by empowering jurors to reject convicting Black defendants when to do so would reinforce racially biased laws. Both remedies exist alongside a trend limiting ...


Batson For Judges, Police Officers & Teachers: Lessons In Democracy From The Jury Box, Stacy L. Hawkins Jun 2018

Batson For Judges, Police Officers & Teachers: Lessons In Democracy From The Jury Box, Stacy L. Hawkins

Michigan Journal of Race and Law

In our representative democracy we guarantee equal participation for all, but we fall short of this promise in so many domains of our civic life. From the schoolhouse, to the jailhouse, to the courthouse, racial minorities are underrepresented among key public decision-makers, such as judges, police officers, and teachers. This gap between our aspirations for representative democracy and the reality that our judges, police officers, and teachers are often woefully under-representative of the racially diverse communities they serve leaves many citizens of color wanting for the democratic guarantee of equal participation. This critical failure of our democracy threatens to undermine ...


Following Oregon’S Trail: Implementing Automatic Voter Registration To Provide For Improved Jury Representation In The United States, Julie A. Cascino May 2018

Following Oregon’S Trail: Implementing Automatic Voter Registration To Provide For Improved Jury Representation In The United States, Julie A. Cascino

William & Mary Law Review

No abstract provided.


Reasoned Verdicts: Oversold?, Kayla A. Burd, Valerie P. Hans Apr 2018

Reasoned Verdicts: Oversold?, Kayla A. Burd, Valerie P. Hans

Cornell International Law Journal

Jurors are lay fact-finders, untrained in the complexities of law and legal rules, and yet reasoned verdicts require that their reasons conform precisely to the law. This difficulty is the impetus for additional interaction with the court, as jurors must often call on legal assistance when drafting their verdicts. This necessity undermines the independence and power of jurors and opens the door for external pressures and biases to encroach on jurors’ decisions. When judges overturn jury verdicts that they consider insufficiently reasoned, judges substitute their judgments for those of the jurors. In addition, reasoned verdicts may lead to post hoc ...


Newsroom: Court As Classroom 03-01-2018, Roger Williams University School Of Law Mar 2018

Newsroom: Court As Classroom 03-01-2018, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.


The Subversions And Perversions Of Shadow Vigilantism, Paul H. Robinson, Sarah M. Robinson Jan 2018

The Subversions And Perversions Of Shadow Vigilantism, Paul H. Robinson, Sarah M. Robinson

Faculty Scholarship at Penn Law

This excerpt from the recently published Shadow Vigilantes book argues that, while vigilantism, even moral vigilantism, can be dangerous to a society, the real danger is not of hordes of citizens, frustrated by the system’s doctrines of disillusionment, rising up to take the law into their own hands. Frustration can spark a vigilante impulse, but such classic aggressive vigilantism is not the typical response. More common is the expression of disillusionment in less brazen ways by a more surreptitious undermining and distortion of the operation of the criminal justice system.

Shadow vigilantes, as they might be called, can affect ...


The Silence Penalty, Jeffrey Bellin Jan 2018

The Silence Penalty, Jeffrey Bellin

Faculty Publications

In every criminal trial, the defendant possesses the right to testify. Deciding whether to exercise that right, however, is rarely easy. Declining to testify shields defendants from questioning by the prosecutor and normally precludes the introduction of a defendant’s prior crimes. But silence comes at a price. Jurors penalize defendants who fail to testify by inferring guilt from silence.

This Article explores this complex dynamic, focusing on empirical evidence from mock juror experiments—including the results of a new 400-person mock juror simulation conducted for this Article—and data from real trials. It concludes that the penalty defendants suffer ...


Surprise Vs. Probability As A Metric For Proof, Edward K. Cheng, Matthew Ginther Jan 2018

Surprise Vs. Probability As A Metric For Proof, Edward K. Cheng, Matthew Ginther

Vanderbilt Law School Faculty Publications

In this Symposium issue celebrating his career, Professor Michael Risinger in Leveraging Surprise proposes using "the fundamental emotion of surprise" as a way of measuring belief for purposes of legal proof. More specifically, Professor Risinger argues that we should not conceive of the burden of proof in terms of probabilities such as 51%, 95%, or even "beyond a reasonable doubt." Rather, the legal system should reference the threshold using "words of estimative surprise" -asking jurors how surprised they would be if the fact in question were not true. Toward this goal (and being averse to cardinality), he suggests categories such ...


Disbelief Doctrines, Sandra F. Sperino Jan 2018

Disbelief Doctrines, Sandra F. Sperino

Faculty Articles and Other Publications

Employment discrimination law is riddled with doctrines that tell courts to believe employers and not workers. Judges often use these disbelief doctrines to dismiss cases at the summary judgment stage. At times, judges even use them after a jury trial to justify nullifying jury verdicts in favor of workers.

This article brings together many disparate discrimination doctrines and shows how they function as disbelief doctrines, causing courts to believe employers and not workers. The strongest disbelief doctrines include the stray comments doctrine, the same decisionmaker inference, and the same protected class inference. However, these are not the only ones. Even ...


Trials By Peers: The Ebb And Flow Of The Criminal Jury In France And Belgium, Claire M. Germain Jan 2018

Trials By Peers: The Ebb And Flow Of The Criminal Jury In France And Belgium, Claire M. Germain

UF Law Faculty Publications

The participation of lay jurors in criminal courts has known much ebb and flow both in France and in Belgium. These two countries belong to the civil law tradition, where juries are the exception rather than the rule in criminal trials, and they only exist in criminal cases, not civil cases. In spite of some similarities, there are substantial differences between the two countries, and their systems will be examined in turn.

In France, the Cour d’assises itself was inherited from the French Revolution. Since a law of 1941, it is a mixed jury system, meaning that lay citizens ...


Stricken: The Need For Positive Statutory Law To Prevent Discriminatory Peremptory Strikes Of Disabled Jurors, Jordan Benson Jan 2018

Stricken: The Need For Positive Statutory Law To Prevent Discriminatory Peremptory Strikes Of Disabled Jurors, Jordan Benson

Cornell Law Review

A representative jury ensures a truly impartial trial and that all groups are able to share in this valuable opportunity for civic engagement.Though the disabled constitute a minority of the population, their viewpoint is no less necessary to securing the benefits of a representative jury than that of groups already afforded protection from discriminatory strikes. As the disabled become more represented in many areas of society, their continued underrepresentation on juries will become even more difficult to justify. Discriminatory peremptory strikes are a significant, discretionary means by which the disabled can continue to be excluded from juries even when ...


Expanding The Search For America's Missing Jury, Richard Lorren Jolly Jan 2018

Expanding The Search For America's Missing Jury, Richard Lorren Jolly

Michigan Law Review

A review of Suja A. Thomas, The Missing American Jury: Restoring the Fundamental Constitutional Role of the Criminal, Civil, and Grand Juries.


It's Still Too Easy To Push Blacks, Minorities Off Of Juries, Jeffrey Bellin Dec 2017

It's Still Too Easy To Push Blacks, Minorities Off Of Juries, Jeffrey Bellin

Popular Media

No abstract provided.


Racism, Juries, And Justice: Addressing Post-Verdict Juror Testimony Of Racial Prejudice During Deliberations, Andrew C. Helman Oct 2017

Racism, Juries, And Justice: Addressing Post-Verdict Juror Testimony Of Racial Prejudice During Deliberations, Andrew C. Helman

Maine Law Review

From the beginning, race played a role in the prosecution of Christopher McCowen for the rape and murder of well-known fashion writer Christa Worthington. To some, the trial was even a spectacle and treated as “one of the most spectacular homicide cases in [Massachusetts'] history.” It quickly became a “made-for-cable-news tale of the heiress fashion writer and her lowly Portuguese fisherman lover, illicit sex, and an out-of-wedlock child,” all set in a seaside village. McCowen, an African-American garbage man, was right in the middle of it; police and prosecutors did not believe his assertions that he had consensual sex with ...


The Trial Lawyer And The Reptilian Brain: A Critique, Louis J. Sirico, Jr. Jun 2017

The Trial Lawyer And The Reptilian Brain: A Critique, Louis J. Sirico, Jr.

Cleveland State Law Review

This Article brings together neuroscience, cultural symbolism, and the strategies of practicing lawyers to critique the reptile strategy, now popular among trial lawyers. The strategy directs the lawyer to trigger the reptilian brains of jurors so that they react instinctively to threats to themselves and their communities. When humans feel threatened, the reptilian brain, the most primitive part of the brain, takes charge and instinctively controls human conduct. Therefore, if a lawyer can make a juror feel threatened, the lawyer makes an appeal to the juror’s reptilian brain and virtually assures a victory. Thus, a lawyer’s argument should ...


Newsroom: Logan On Trump And Libel Law 01-03-2017, Roger Williams University School Of Law Jan 2017

Newsroom: Logan On Trump And Libel Law 01-03-2017, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.


12 Angry Men V. The Agency: Why Preemption Should Resolve This Conflict In Drug Labeling Litigation, Michelle L. Richards Jan 2017

12 Angry Men V. The Agency: Why Preemption Should Resolve This Conflict In Drug Labeling Litigation, Michelle L. Richards

Marquette Law Review

The Supreme Court has found in favor of preemption in tort liability cases involving matters of heavy federal regulation in which Congress has delegated implementation of a statute involving technical subject matter to the agency. It has not been the case, however, in matters concerning the labeling of prescription drugs, despite the fact that the FDA has exclusively regulated drug labeling for more than a century. In fact, the current state of affairs now allows a jury to substitute the judgment of the FDA in approving a label on a name-brand drug for their own in state law failure to ...


Copyright Law’S Origin Stories, Laura A. Heymann Dec 2016

Copyright Law’S Origin Stories, Laura A. Heymann

Popular Media

No abstract provided.


Response To Keeping Cases From Black Juries: An Empirical Analysis Of How Race, Income Inequality, And Regional History Affect Tort Law, Jennifer Wriggins Sep 2016

Response To Keeping Cases From Black Juries: An Empirical Analysis Of How Race, Income Inequality, And Regional History Affect Tort Law, Jennifer Wriggins

Washington and Lee Law Review Online

Issues of race and racism in the U.S. torts system continue to deserve much more attention from legal scholarship than they receive, and Keeping Cases from Black Juries is a valuable contribution. Studying racism as it infects the torts system is difficult because explicit de jure exclusions of black jurors are in the past; race is no longer on the surface of tort opinions; and court records do not reveal the race of tort plaintiffs, defendants, or jurors. Yet it is essential to try and understand the workings of race and racism in the torts system. The authors ...


Introduction To Juries And Lay Participation: American Perspectives And Global Trends, Nancy S. Marder, Valerie P. Hans Aug 2016

Introduction To Juries And Lay Participation: American Perspectives And Global Trends, Nancy S. Marder, Valerie P. Hans

Valerie P. Hans

The jury in the United States is fraught with paradoxes. Even though the number of jury trials in the United States continues to decline, jury trials play a prominent role in American culture and continue to occupy headlines in newspapers and top stories on television. Americans might not always agree with the verdict that any given jury renders, but they continue to express their support for the jury system in poll after poll. This Symposium of the Chicago-Kent Law Review presents new theories and research, with a focus on the contemporary American jury. The Introduction begins by connecting discussions at ...


Legal Interpreter For The Jury: The Role Of The Clerk Of The Court In Spain, Mar Jimeno-Bulnes, Valerie P. Hans Aug 2016

Legal Interpreter For The Jury: The Role Of The Clerk Of The Court In Spain, Mar Jimeno-Bulnes, Valerie P. Hans

Valerie P. Hans

The Clerk of the Court (secretario judicial) in Spanish provincial courts is an important legal actor in the proceedings of the modern Spanish jury, introduced in 1995. In contrast to the general verdicts of traditional common-law juries, Spanish juries must answer an often lengthy list of specific questions, and must provide the reasoning supporting these responses. Early on, many Spanish juries found the task of providing legally acceptable responses and reasons challenging. Because the law permits the clerk to enter the deliberation room to assist the jury in its writing of the verdict, the clerk has come to act as ...


Introduction To Juries And Mixed Tribunals Across The Globe: New Developments, Common Challenges And Future Directions, Nancy S. Marder, Valerie P. Hans Aug 2016

Introduction To Juries And Mixed Tribunals Across The Globe: New Developments, Common Challenges And Future Directions, Nancy S. Marder, Valerie P. Hans

Valerie P. Hans

This introduction to the special issue of Oñati Socio-legal Series describes the goals of the conference on Juries and Mixed Tribunals across the Globe, and identifies themes that emerged as jury scholars from all over the world examined different forms of lay participation in legal decision-making. The introduction focuses on common challenges that different systems of lay participation face, including the selection of impartial fact finders and the presentation of complex cases to lay citizens. The introduction and special issue articles also highlight new developments and innovative practices to address these challenges, including some tools, like decision trees, that remain ...