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 …

Bulwark Of Equality: The Jury In America, Nino C. Monea

West Virginia Law Review

Many decry the state of societal inequality in modern America. Juries are not normally thought of as part of the solution, but history shows that they should be. It reveals that juries oftentimes advanced the interests of the poor and lowly when no one else would. It also reveals that powerful interests—government and corporate—have sought to disempower juries that rule in favor of marginalized groups. This Article examines four contexts throughout our history where juries have enhanced societal equality. (1) In early America, they resisted the British government and in the nascent republic were friends to debtors and farmers. (2) …

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 extra step …

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 altogether, …

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 …

Saliency, Anchors & Frames: A Multicomponent Damages Experiment, Bernard Chao

Michigan Technology Law Review

Modern technology products contain thousands, sometimes hundreds of thousands, of different features. Nonetheless, when electronics manufacturers are sued for patent infringement, these suits typically accuse only one feature, or in more complex suits, a handful of features, of actual patent infringement. But damages verdicts often do not reflect the relatively small contribution an individual patent makes to an infringing product. One study observed that verdicts in these types of cases average 9.98% of the price of the entire product. While both courts and commentators have blamed the law of patent damages, the role cognitive biases play in these outsized damages …

Accounting For Awards: An Examination Of Juror Reasoning Behind Pain And Suffering Damage Award Decisions, Krystia Reed, Valerie P. Hans, Valerie F. Reyna

Cornell Law Faculty Publications

What do civil jurors think about when they are asked to make damage award decisions? Given the secrecy of the jury deliberation process, often we are unaware of jurors' thought processes. This Article presents the results from three studies in which mock jurors explained the reasoning behind their damage awards for pain and suffering. We highlight the most common explanations and distinguish between reasons justifying high and low pain and suffering awards. We conclude with a discussion for what this means for attorneys during trial.

Perjury By Omission, Ira P. Robbins

Articles in Law Reviews & Other Academic Journals

“Do you swear to tell the truth, the whole truth, and nothing but the truth?” There are few legal phrases that the layperson can repeat verbatim; this is one of them. But how many people truly understand the nuances and ramifications of testifying under oath? Many assume that if they do not provide the “whole truth” under oath, they will face a perjury charge. However, perjury is a charge often threatened but rarely used. The offense requires that the defendant willfully and knowingly make a false statement, under oath, regarding a material fact.

The federal perjury statute does not contemplate …

Prosecuting In The Shadow Of The Jury, Anna Offit

Faculty Journal Articles and Book Chapters

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, …

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 …