Law Commons^™

Sentencing Roulette: How Virginia’S Criminal Sentencing System Is Imposing An Unconstitutional Trial Penalty That Suppresses The Rights Of Criminal Defendants To A Jury Trial, Caleb R. Stone

Caleb R. Stone

No abstract provided.

Correcting Deadly Confusion: Responding To Jury Inquiries In Capital Cases, Stephen P. Garvey, Sheri Lynn Johnson, Paul Marcus

Paul Marcus

No abstract provided.

Copyright Law’S Origin Stories, Laura A. Heymann

Laura A. Heymann

No abstract provided.

The Silence Penalty, Jeffrey Bellin

Jeffrey Bellin

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 when they refuse …

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

Jeffrey Bellin

No abstract provided.

Is Punishment Relevant After All? A Prescription For Informing Juries Of The Consequence Of Conviction, Jeffrey Bellin

Jeffrey Bellin

The American jury, once heralded as “the great corrective of law in its actual administration,” has suffered numerous setbacks in the modern era. As a result, jurors have largely become bystanders in a criminal justice system that relies on increasingly severe punishments to incarcerate tens of thousands of offenders each year. The overwhelming majority of cases are resolved short of trial and, even when trials occur, jurors are instructed to find only the facts necessary for legal guilt. Apart from this narrow task, jurors need not, in the eyes of the law, concern themselves with whether a conviction and subsequent …

Bargaining Inside The Black Box, Allison Orr Larsen

Allison Orr Larsen

When jurors are presented with a menu of criminal verdict options and they cannot reach a consensus among them, what should they do? Available evidence suggests they are prone to compromise—that is, jurors will negotiate with each other and settle on a verdict in the middle, often on a lesser-included offense. The suggestion that jurors compromise is not new; it is supported by empirical evidence, well-accepted by courts and commentators, and unsurprising given the pressure jurors feel to reach agreement and the different individual views they likely hold. There are, however, some who say intrajury negotiation represents a failure of …

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 …

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

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

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 …

Investigating Jurors On Social Media, Caren Myers Morrison

Caren Myers Morrison

This essay proceeds in three parts. First, it examines the current state of jury investigations, and how they differ from those conducted in the past. Then, it describes the evolving legal and ethical positions that are combining to encourage such investigations. Finally, it offers a note of caution–condoning such investigations while keeping them hidden from jurors may be perceived as unfair and exploitative, risking a possible backlash from outraged jurors. Instead, I propose a modest measure to provide notice and explanation to jurors that their online information is likely to be searched, and why.

Judge-Jury Agreement In Criminal Cases: A Partial Replication Of Kalven And Zeisel's The American Jury, Theodore Eisenberg, Paula L. Hannaford-Agor, Valerie P. Hans, Nicole L. Waters, G. Thomas Munsterman, Stewart J. Schwab, Martin T. Wells

Valerie P. Hans

This study uses a new criminal case data set to partially replicate Kalven and Zeisel's classic study of judge-jury agreement. The data show essentially the same rate of judge-jury agreement as did Kalven and Zeisel for cases tried almost 50 years ago. This study also explores judge-jury agreement as a function of evidentiary strength (as reported by both judges and juries), evidentiary complexity (as reported by both judges and juries), legal complexity (as reported by judges), and locale. Regardless of which adjudicator's view of evidentiary strength is used, judges tend to convict more than juries in cases of "middle" evidentiary …

Special Feature: The Future Of Lay Adjudication In Korea And Japan, Hiroshi Fukurai, Valerie P. Hans

Valerie P. Hans

Three years after Korea introduced the jury system for the first time in its history, and two years following the Japanese introduction of a mixed court in which citizen and professional judges decide serious criminal cases, the Second East Asian Law and Society Conference was held on September 30th and October 1st, 2011 in the vibrant city of Seoul, South Korea. This Special Issue of the Yonsei Law Journal offers an opportunity to present work on some of the key issues that were discussed and debated at this remarkable conference. In particular, the special issue offers new research on the …

Japan's New Lay Judge System: Deliberative Democracy In Action?, Zachary Corey, Valerie P. Hans

Valerie P. Hans

No abstract provided.

Diversity And The Civil Jury, Christina S. Carbone, Victoria C. Plaut

Victoria Plaut

No abstract provided.

The Decision To Award Punitive Damages: An Empirical Study, Theodore Eisenberg, Michael Heise, Nicole L. Waters, Martin T. Wells

Michael Heise

Empirical studies have consistently shown that punitive damages are rarely awarded, with rates of about 3 to 5 percent of plaintiff trial wins. Using the 2005 data from the Bureau of Justice Statistics Civil Justice Survey, this article shows that knowing in which cases plaintiffs sought punitive damages transforms the picture of punitive damages. Not accounting for whether punitive damages were sought obscures the meaningful punitive damages rate, the rate of awards in cases in which they were sought, by a factor of nearly 10, and obfuscates a more explicable pattern of awards than has been reported. Punitive damages were …

Judge-Jury Agreement In Criminal Cases: A Partial Replication Of Kalven And Zeisel's The American Jury, Theodore Eisenberg, Paula L. Hannaford-Agor, Valerie P. Hans, Nicole L. Waters, G. Thomas Munsterman, Stewart J. Schwab, Martin T. Wells

Stewart J Schwab

This study uses a new criminal case data set to partially replicate Kalven and Zeisel's classic study of judge-jury agreement. The data show essentially the same rate of judge-jury agreement as did Kalven and Zeisel for cases tried almost 50 years ago. This study also explores judge-jury agreement as a function of evidentiary strength (as reported by both judges and juries), evidentiary complexity (as reported by both judges and juries), legal complexity (as reported by judges), and locale. Regardless of which adjudicator's view of evidentiary strength is used, judges tend to convict more than juries in cases of "middle" evidentiary …

Juries: Arbiters Or Arbitrary?, Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

No abstract provided.

Scientific Jury Selection And The Equal Protection Rights Of Venire Persons, Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

Jury trials have always been a source of anxiety for litigators. Despite years of preparation, the outcome of a case can turn on the whimsical biases of a group of people who may or may not understand the legal arguments involved. In recent years, attorneys have taken steps to reduce this uncertainty by hiring social scientists who study jury decision making. One of the most popular services which these consultants offer is assistance in the jury selection process. The use of sociological and psychological methods in identifying and excluding unfavorable jurors from service, known as Scientific Jury Selection ("SJS"), has …

Heuristics And Biases In The Court: Ignorance Or Adaptation?, Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

No abstract provided.

Reflections On The Korean Jury Trial, Valerie P. Hans

Valerie P. Hans

Booth V. Maryland, Insights Into The Contemporary Challenges To Judging, Joan M. Shaughnessy

Joan M. Shaughnessy

No abstract provided.

Chapters Of The Civil Jury, Doug R. Rendleman

Doug Rendleman

The civil jury, though constitutionally protected by the seventh amendment, has remained a controversial institution throughout much of Anglo-American legal history. Our romantic ideals are questioned by critics who view the civil jury as prejudiced and unpredictable; proponents note the sense of fairness and "earthy wisdom" gained by community participation in the legal process. This debate surfaces in the process of accommodation between certain substantive goals of the law and the pre-verdict and post-verdict procedural devices courts have employed to control the jury. In this article, Professor Rendleman examines this conflict in his three "chapters" involving racially motivated discharges of …

Taking A Stand On Taking The Stand: The Effect Of A Prior Criminal Record On The Decision To Testify And On Trial Outcomes, Theodore Eisenberg, Valerie P. Hans

Valerie P. Hans

This article uses unique data from over 300 criminal trials in four large counties to study the relations between the existence of a prior criminal record and defendants testifying at trial, between testifying at trial and juries' learning about a criminal record, and between juries' learning about a criminal record and their decisions to convict or acquit. Sixty percent of defendants without criminal records testified compared to 45 percent with criminal records. For testifying defendants with criminal records, juries learned of those records in about half the cases. Juries rarely learned about criminal records unless defendants testified. After controlling for …

The Predictability Of Juries, Valerie P. Hans, Theodore Eisenberg

Valerie P. Hans

This article discusses the meaning of jury “predictability” and whether jury research supports claims of unpredictability. It then analyzes the factors that are associated with perceptions of civil jury unpredictability using data from (1) surveys of corporate and insurance attorneys’ views of the civil justice system, and (2) the outcomes of civil jury trials in state courts. Perceptions of punitive damages dominate business and insurance industry attorneys’ jury predictability ratings. Punitive damages data are significantly and strongly related to attorneys’ judgments about jury predictability across states. This strong association occurs despite evidence of infrequent punitive damage award requests and less …

Science In The Jury Box: Jurors' Views And Understanding Of Mitochondrial Dna Evidence, Valerie P. Hans, David H. Kaye, B. Michael Dann, Erin J. Farley, Stephanie Albertson

Valerie P. Hans

This article describes parts of an unusually realistic experiment on the comprehension of expert testimony on mitochondrial DNA (mtDNA) sequencing in a criminal trial for robbery. Specifically, we examine how jurors who responded to summonses for jury duty evaluated portions of videotaped testimony involving probabilities and statistics. Although some jurors showed susceptibility to classic fallacies in interpreting conditional probabilities, the jurors as a whole were not overwhelmed by a 99.98% exclusion probability that the prosecution presented. Cognitive errors favoring the defense were more prevalent than ones favoring the prosecution. These findings lend scant support to the legal argument that mtDNA …

The Relation Between Punitive And Compensatory Awards: Combining Extreme Data With The Mass Of Awards, Theodore Eisenberg, Valerie P. Hans, Martin T. Wells

Valerie P. Hans

This article assesses the relation between punitive and compensatory damages by combining two data sets of extreme awards with state court data from the National Center for State Courts (NCSC) for 1992, 1996, and 2001. One data set of extreme awards consists of punitive damages awards in excess of $100 million from 1985 through 2003, gathered by Hersch and Viscusi (H-V); the other includes the National Law Journal's (NLJ) annual reports of the 100 largest trial verdicts from 2001 to 2004. The integration of these data sets provides the most comprehensive picture of punitive damages in American civil trials to …

The Twenty-First Century Jury: Worst Of Times Or Best Of Times?, Valerie P. Hans

Valerie P. Hans

In thinking about legal developments, new research findings, and the continuing swirl of controversy over this venerable American institution, I observe the same paradoxical condition that Charles Dickens found in 18th Century London: "It was the best of times; it was the worst of times." There is evidence of both the expansion of jury trial rights, yet contraction of jury trials. Research evidence indicates that juries perform well, yet the 21st Century jury confronts more complex decision making tasks and continuing doubts about its fairness and competence.

"Bad Juror" Lists And The Prosecutor's Duty To Disclose, Ira P. Robbins

Ira P. Robbins