Role Of Jury Research Articles

Political Trials: From Clive Ponting To Bernard Collaery And Witness K

Witness K and his lawyer, Bernard Collaery, are on trial for alleged breaches of official secrets and security law for disclosing the Australian Government’s espionage against Timor-Leste in the context of disputes about access to oil and gas resources in the Timor Sea. Comparing and contrasting the Witness K/Collaery case with the prosecution of an English civil servant for disclosing that the UK Government had lied about a naval action in the Falklands War, this paper considers the role of juries in political trials and contextualizes the community’s response to governmental wrongdoing.

Appellate Courts and Civil Juries

In federal civil litigation, decisionmaking power is shared by juries, trial courts, and appellate courts. This Article examines an unresolved tension in the different doctrines that allocate authority among these institutions, one that has led to confusion surrounding the relationship between appellate courts and civil juries. At base, the current uncertainty stems from longstanding lack of clarity regarding the distinction between matters of law and matters of fact. The high-stakes Oracle-Google litigation--which is now before the Supreme Court--exemplifies this. In that case, the Federal Circuit reasoned that an appellate court may assert de novo review over jury's verdict simply by characterizing particular issue as legal rather than factual. But this approach misperceives the approach demanded by Rule 50 of the Federal Rules of Civil Procedure, which permits judicial override of jury's verdict only when a reasonable jury would not have legally sufficient evidentiary basis to reach such verdict. Rule 50's reasonable-jury standard does not permit de novo review of jury's verdict on particular issue. Rather, it requires deference to the jury's conclusion on that issue unless the reviewing court can explain why principles of substantive law or other aspects of the trial record render that verdict unreasonable. This deferential standard of review faithfully implements the text and structure of the Federal Rules and respects the jury's role in our federal system. Yet, it also preserves appellate courts' ability to provide meaningful clarification that will guide future decisionmakers.

US Patent Litigation and Jury Trial -the Role of Jury and Its Change-

US Patent Litigation and Jury Trial -the Role of Jury and Its Change-

The People's Peremptory Challenge and Batson: Aiding the People's Voice and Vision Through the Representative Jury

Using the metaphor of the People as a body, this article argues that the jury acts as the People's eyes and voice. It draws upon recent political science literature to describe the difference between and democracy and the conditions for each occurring. It concludes that a racially and otherwise diverse jury promotes those conditions. Consequently, if Batson is seen as aspiring to such diversity, then there are strong theoretical justifications for Batson. The piece also discusses a diverse jury's role in unifying the parts of the People's body, in combating political leader's manipulative scorn for the People, and in humbling those leaders -- all aspects of ocular democracy. Additionally, the piece finds evidence of support for a theory of ocular democracy and the jury in American history leading up to the Bill of Rights and in the structure of that Bill, pointing out the relevance of these matters for protecting of the jury trial right and today viewing it as a right to a diverse jury. Finally, in discussing vocal democracy, which others (unlike with ocular democracy) have addressed in the Batson context, the piece discusses the special political value of jury deliberation not only in the jury room but in the changed broader political behavior of the jurors long after the trial ends.

Liberalism, Nationalism, and Gender Dichotomy in Mid-Nineteenth-Century Germany: The Contested Case of German Civil Law

Often seen as immediate precursors of the Frankfurt National Assembly that convened during the 1848 Revolution, the Germanist conferences of 1846 and 1847 dealt at length with such politically fraught issues as the role of juries in German public life, the balance of Germanic and Roman legal traditions in the German states, and the looming crisis with Denmark over the Duchies of Slesvig and Holstein. The question of legal codification—which by the early 1840s had become a central demand of the German liberal nationalist movement—also featured prominently on the reformist agenda of the assembled scholars of German law, history, and literature who would so shortly help lead the German revolution. Among them was Carl Mittermaier, professor of law at the University of Heidelberg, leading opposition member of the Diet of the Grand Duchy of Baden, future president of the revolutionary PreParliament in 1848, and one of the most prominent German and European legal scholars of his generation. At the second Germanist conference in September 1847, Mittermaier introduced a motion. As a first, small step toward the legal unification of the German states, he urged that a committee be established to begin the process of codifying the many and varied versions of the law of marital property. With some biting references to the deleterious effects of Roman family law in the German context, and with suitable praise of the German family and companionate marriage, Mittermaier thought this the best place to make a start in the unification of Germany.1

The Facts About Ring v. Arizona and the Jury's Role in Capital Sentencing

When it was decided in 2002, Ring v. Arizona appeared to be a watershed in the way capital sentences are handed out in the United States: it overturned several states’ death penalty statutes and appeared to imperil many more. Ring announced that the rule of Apprendi v. New Jersey applied to capital sentencing and required that any fact necessary to the imposition of the death penalty be proven to a jury and beyond a reasonable doubt. Yet eight years after the case was decided, it is not clear what, if anything, Ring in fact demands of the states. Determining exactly what constitutes fact-finding, and therefore which tasks must be carried out by the capital jury rather than a judge, remains a challenging task. In this article we investigate the impact of Ring by analyzing several typical capital statutes against both the language of the Ring opinion and the broader framework of the Court’s Sixth and Eighth Amendment jurisprudence. What we find is that in all but the most obvious cases, Ring’s mandate is an extraordinarily weak one. What is more, Ring creates perverse incentives for the states; juries can be removed from the capital sentencing equation entirely simply by making capital decisionmaking open-ended and amorphous rather than fact-based and legalistic. We argue that this pressure toward open-ended decisionmaking creates significant Eighth Amendment concerns. We conclude that this tension between the Sixth and Eighth Amendments demonstrates the limits of Ring’s narrow focus on fact-finding and argues for the grounding of a more robust capital jury right in the Eighth Amendment.

Why Modern Evidence Law Lacks Credibility

Witness is at the heart of every trial. And while it is axiomatic that credibility is left to the jury, evidence law is silent about how one decides whether a witness is accurate, lying, or honestly mistaken. More precisely, a finding that a witness is accurate rests on the following so-called assumptions: The witness accurately perceived the event; she accurately remembers those perceptions at trial; her testimony (words) accurately describes her memories; and she is sincere (not lying). Neither the law nor science provides a test for determining credibility. Rather, the jury's life experience and are thought to be sufficient or, more accurately, the only viable alternative.This article develops several themes. First, the testimonial assumptions recognized by evidence law are products of mainstream thought and culture, an epistemology founded upon lay common sense and popular ideas about how people perceive, remember, and describe events as well as their sincerity. Second, the legitimacy of the modern depends upon this correspondence between popular thought and evidence doctrine, yet that correspondence is inadequately understood at present. Third, evidence law is bereft of any systematic approach to determining credibility. Rather, impeachment doctrine consists of ad hoc techniques that lawyers use at their discretion, the assumption being that they are sufficiently adroit and skilled to draw out the strengths and weaknesses related to the testimonial assumptions (credibility). Set against the modern are several notable threats. First, proof that rejects or contradicts the law's common sense epistemology, particularly social scientific or psychological evidence directed at popular misconceptions relating to credibility, effectively diminishes the jury's role in fact finding and threatens the trial's legitimacy. Second, lawyers with insufficient skill to use common law modes of impeachment fail to present the fact finder with the information popularly deemed necessary to determine credibility. Third, the vanishing trial risks relegating the jury to history's museum of curiosities while breeding a generation of lawyers lacking fundamental skills and adept only at settlement. The purpose of this article is to assess the testimonial assumptions in light of the law governing the impeachment and rehabilitation of witnesses. Evidence law is understandably reluctant to substitute its common sense underpinnings for the infirmities of modern psychology. Nonetheless, it should strive to better understand its roots in mainstream thought and popular culture if only to better appreciate where and how cultural changes, and psychology's insights, might assist determinations without undermining the trial's legitimacy. Impeachment doctrine remains overly fixated on perjury and insufficiently attentive to the problem of the honestly mistaken witness. The article recommends several significant changes in practice and evidence doctrine that redress this imbalance without unmooring evidence law from its roots in the community's sense of credibility.

Usurping the Role of the Jury? Expert Evidence and Witness Credibility in English Criminal Trials

The reluctance of English and other common-law criminal courts to admit expert evidence of witness credibility is rooted in two main objections: that such evidence needlessly complicates the jury's task and that it threatens to ‘usurp’ the jury's role. The ‘usurpation’ objection can be understood as referring to a risk that the expert will be accorded unwarranted epistemic authority on matters which it is important for the jury to decide for itself. These objections have substance, and although they apply to expert evidence in general they have particular force when applied to evidence of credibility. But the jury, as a responsible fact-finder, also has a duty to attend to expert evidence that will help it avoid ‘epistemic injustice’. Particularly in rape and sexual abuse cases, there are good reasons for admitting some forms of expert evidence of credibility, and concerns about ‘usurpation’ do not justify the British government's apparent abandonment of proposals to make such evidence more widely admissible in rape trials.

Apprendi's Domain

Apprendi v. New Jersey and subsequent Supreme Court cases have extended the Sixth Amendment right of jury trial to some, but not all, factual disputes at sentencing. These court decisions require juries to resolve any non-recidivist sentencing fact that increases the ceiling on a defendant's punishment, but do not extend this requirement to facts that decrease a defendant's punishment or that establish mandatory minimums without raising the maximum allowable sentence. This fails to provide a coherent or sensible constitutional rule for distributing factfinding powers between judge and jury. The reason is that the Supreme Court has inexplicably decided that all facts subject to the Sixth Amendment jury requirement must also be proved beyond a reasonable doubt, as if they were elements of substantive criminal offenses. This tie-in arrangement between the jury right and the reasonable-doubt rule is mistaken, and has caused two serious problems with the Court's Apprendi jurisprudence. First, it has produced a formalistic jury right that is easily evaded by legislatures and that hinges on an untenable distinction between aggravating and mitigating sentencing facts. The criminal jury's role was traditionally understood as extending to all questions of fact, as opposed to questions of law, but the Supreme Court cannot adopt this approach because it is unwilling to countenance a corresponding expansion in the proof-beyond-a-reasonable-doubt requirement and the concept of elements. Second, Apprendi's all-too-limited efforts to expand the jury right have propagated an overbroad concept of elements that lacks historical support and brings needless doctrinal complications to judicial efforts to broaden the right of jury trial. This article urges a different approach that uncouples the Court's link between these two constitutional protections. Juries should decide all disputed questions of fact that aggravate or mitigate a defendant's guilt or punishment. But courts should not require these facts to be charged by prosecutors or proved beyond a reasonable doubt whenever they increase a defendant's maximum allowable punishment. This will give meaningful content to the right of jury trial while avoiding the historical and pragmatic problems caused by an expansive theory of elements.

“Science,”“common sense,” and DNA evidence: a legal controversy about the public understanding of science

Law courts are important institutional settings in which public understanding of science is problematic. Courts have struggled with the question of how to handle scientific evidence in a system of justice in which lay jurors are responsible for deciding the facts of the case. Judicial conceptions of science and of jurors' capacities to understand scientific evidence inform decisions in particular cases. Such decisions, in turn, act as precedents that, for better or worse, embed judicial conceptions of public understanding of science into the workings of the legal system. This paper examines an English case in which the difference between “scientific” and “common sense” evidence was explicitly at stake. In this case Regina v. Adams, DNA evidence was used to convict the defendant of rape. The principal item of prosecutorial evidence was a match between DNA profiles developed from the defendant's blood and from semen recovered at the crime scene. Prosecution experts expressed the evidence in probabilistic terms, estimating a probability of one in 200 million that a DNA profile from a randomly chosen unrelated man in the relevant population would match the profile developed from the crime stain. Other so-called “common sense” evidence supported the defendant's not guilty plea. The case was appealed twice in the mid-1990s as the Court of Appeal deliberated over an innovative effort by the defense to counteract the prosecution evidence by converting the non-DNA “common sense” evidence into probability estimates. In its decisions, the Court reinstated a boundary between the “scientific” and “common sense” evidence, arguing that this boundary was necessary to preserve the jury's role as trier of fact. The paper's discussion of the court's boundary work addresses unresolved problems with the place of probability estimates in jury trials.

The Jury's Role In Deciding Normative Issues in the American Common Law

Two great movements in the American common law in the second half of this century put into question the jury's role in deciding normative issues. The shift from rules to standards has given the jury more say regarding what is inappropriate conduct because the jury makes that normative decision at the point of application of a standard. The movement from rules to standards has been especially pronounced in contract law. Meanwhile in tort law, in reaction to a perceived liability explosion, judges have taken the power to define what is inappropriate conduct from the jury by announcing no-duty rules. These two movements raise similar questions regarding the relation of the choice between rules and standards to the allocation of normative authority between judge and jury, and in particular, the question whether any values other than the familiar costs and benefits of rules and standards bear on how this authority is allocated. This article argues that other values do weigh on the scale. The American common law manifests a commitment to popular judgment regarding what is inappropriate when conduct foreseeably causes physical harm as well as a commitment that runs in the opposite direction to professional judgment regarding what is inappropriate conduct affecting only economic interests. Because of the latter commitment the choice to define inappropriate conduct in the marketplace by standards need not entail the transfer to the jury of the power to decide what is inappropriate conduct in the first instance. Judges can and do define good faith, improper interference, unjust enrichment, and other legal standards of fair dealing though they do so on a case by case basis. Because of the former commitment judges do not and ought not decide what is reasonable conduct in negligence unless they can frame their decision in the form of a categorical rule that applies beyond the immediate case. This article closes with a discussion of the law of restitution and the concept of abuse of a confidential relationship. While judges historically have defined what is inappropriate conduct in the marketplace, juries have defined what relationships rise above the morality of the marketplace through their power to define when a confidential relationship exists and whether it has been abused. To preserve this power for juries without allowing it to encroach too significantly upon conduct in the commercial sphere the concept of abuse of confidential relationships should be defined as the exploitation of trust for personal gain.

The role of juries in patent cases

What should be the role of juries in patent cases? That was the question before the Court of Appeals for the Federal Circuit (CAFC) in two recent cases, Markman vs. Westview Instruments Inc. and Hilton Davis Chemical Co. vs. Warner-Jenkinson Co. As technology has become more complex, questions have been raised as to whether lay juries (or lay judges) are able to understand and make meaningful decisions in patent cases. The general wisdom has been that juries favor patent owners since they tend to have difficulty in seeing the technological importance of small differences, and that they also tend to be more reticent in overturning the original decision of the Patent and Trademark Office to grant a patent. The two cases described illustrate the fine line that sometimes must be drawn between what the judge does and what the jury does in a trial. Being a fine line, it should come as no surprise that neither of these cases was decided unanimously. The majority decisions, however, make it clear that juries will continue to play an important role in patent cases, albeit not as large as they did in the past.< <ETX xmlns:mml="http://www.w3.org/1998/Math/MathML" xmlns:xlink="http://www.w3.org/1999/xlink">&gt;</ETX>

Challenges to Lay Judges in Germany

Scepticism about the role of juries in the American judicial process has prompted consideration of alternative ways of involving lay persons in adjudication. One possibility is to incorporate into American courts a mixed tribunal of the type common to European judicial systems; in these tribunals, which have nearly displaced the traditional jury of the Anglo-Saxon tradition, there is a mixed bench composed of both professional (legally trained) judges and lay persons who serve temporarily in the role of judge. A prerequisite to evaluating the advantages or disadvantages of American adaptation of the mixed tribunal is to discern the controversial issues in jurisdictions where it already exists. As in the United States, there is in the Federal Republic of Germany a possibility of challenging a lay judge. The focus of this paper is on the grounds for such challenges and the stages of the judicial process at which challenges can be made. Differences in the procedures for selection of lay judges in Germany and...

Criminal Juries

The jury represents the very cornerstone of the Anglo-American legal system, and a massive literature has built up over the course of this century as testimony to this fact. Three important sets of empirical questions can be isolated: whether the jury is a competent fact finder, able to assess evidence, understand legal instructions, and reach appropriate results; whether juries are representative of the communities from which they come and, where not, whether juries of representative composition would achieve significantly different verdicts; whether non-unanimous juries and juries smaller than twelve are inferior to traditional twelve-member juries. Findings on all these questions are inconsistent and in dispute. All of the empirical research is flawed by severe methodological limitations, but faulty interpretation of research results is a more important problem. A critical evaluation of the empirical research casts doubt on many of the claims made by researchers about the working of the jury. Part of the confusion results from different notions of the jury's role. The authors argue that research on the jury should be redirected toward methods which would make for a fuller appreciation of the jury's political function.

Rule Departures and Making Law: Juries and their Verdicts

This study addresses the issue of rule departures and law-making activity by juries adjudicating guilt in felony cases. Analysis of data from a sample of jury trials suggests considerable conformity to rules. That is, jury verdicts are influenced by evidence of the defendant's guilt and credibility as a witness. Rule departures appear to be limited. They reflect a concern not only with the defendant per se, but also with his choice of a victim and with the seriousness of the prosecution charge against him. The findings suggest that, as actually performed, the jury role is neither clerklike nor discretionary. Rather, it conforms more closely to Kadish and Kadish's (1973) notion of a recourse role, where rule departures occur only under certain circumstances.

The Institutionalization of Conflict: Jury Acquittals

Legal systems, like other social systems, sometimes adjust to the circumstances of human life otherwise than through the procedures for controlled change explicitly built into them. One primary way is through the institutionalization of powers, rights, privileges, and duties that engender conflict for individuals who must reach their decisions with respect to such powers, rights, privileges, and duties. A prime example is the jury role in acquittals. The obligation to defer to the court's instructions, while binding on the juror, exists side by side with a protected power and privilege to override that obligation. The result is the legitimated interposition of the juror's judgment between the consequences of the court's instructions and the fate of the defendant. There follows the possibility of a justified departure from rules by agents acting in role, a possibility that may serve social ends of major significance.