Chapter 17

Decline of the  Jury

Democracy at Risk

 

Intro: 

            Importance of Jury to Democracy

            Jefferson, more important than legislature

            Tocqueville, important for people's sovereignty

            Stats on Jury Service,  60% don't show up, 41% think it's important civic duty

            Jury nullification

            Reflection of community values

            Prevents alienation

            Civil stats:  1988, 8% go to trial, of that 30% are to a jury

            Criminal stats:  1988, 85% are plea bargained away

            Introduction to Alternative Dispute Resolution

            Trend toward less than unanimous juries

            Sophistication of jury selection techniques

            Expert witnesses and role of science

 

            Is jury trial still an important part of American law?  If jury is weakened, who gains?

 

17.1  Horwitz, Transformation of American Law

            Merchants were not fond of juries

            Procedural developments weakened juries, beginning of 19th Century                   

                        1.  Special case device.  Submit points of law to judge

                        2.  Judicial power to overrule verdicts contrary to weight of evidence

                        3.  New distinction, law is for judges, facts for juries

 

17.2  Van Voris, $145 Billion to Send a Message

            1.  Eagle v. R.J. Reynolds, huge judgment in Florida tobacco legislation

                        2003, Florida Appellate Court reverses, unconstitutional, invalid class action.  October 2004, Florida S.Ct. to hear the case.  No decision yet, it appears.

            2.  Jury verdicts are soaring into the billions. 

                        G.M. case, $4.9 b cut to $1.2b,  fuel tank explosion, L.A. jury

                        Case has been settled under confidentiality agreement

                        Key evidence, memo saying life is worth $200k

            3.  Jury members stated, well if we're wrong, appeal can fix it

            4.  Hot economy at the time, lots of jobs, makes jurors more generous

 

17.3  Corboy, Not so Quiet Revolution

            1.  Debunks the "Tort Crisis" 

            2.  Note, he's  a personal injury attorney;  insurance does not pay for punis

            3.  He says underwriters got too aggressive in good financial times

            4.  Tort scholars have suggested getting rid of tort law

            5.  Price of liability insurance more function of financial markets, not law

            6.  Tort Crisis Theory

                        Strict liability, lack of fault principles, driving up costs per right wing

            7.  Torts as Public Relations

            8.  Torts as a special interest

            9.  Tort reform in courts

            10.  Myth of absolute liability

            11.  Myth of litigation explosion

            12.  Myth of runaway jury

            13.  Myth of torts tax and competitiveness

 

17.4  Dooley, Feminist observations on juries

            1.  Modern jury very diverse.  Women make up over half of jurors,

                        Minorities well represented

            2.  Is attack on jury attack on women and minorities?

            3.  Judge is the father figure, jury is the woman figure

            4.  Juries are given female attributes

            5.  Back to Jerome Frank.  Juries are totally unpredictable. 

                        Common people make it hard to predict

            6.  Justice Burger suggested way to try cases without juries

                        Modern cases too complicated for juries

 

Followup:  Influences on settlement

 

17.5  Johnson v. Louisiana (1972)

            Facts, Crimes with punishment of hard labor could be decided by 9 of 12 vote

 

            Holding, Less than unanimous jury does not violate due process

 

            Reasoning, nine voting for guilt beyond reasonable doubt gives defendant his rights.  Just because 3 voted to acquit does not imply there was reasonable doubt.  For a lesser offense, this is acceptable.

 

            Stewart dissented, arguing that the less than unanimous jury diminishes the impact of minorities.  Also, if three reasonable people vote to acquit, that means there is also a reasonable doubt.  And deliberations are cut short that would go longer if unanimity required.

            NOTE!  There were concurring opinions, and with dissents those five add up to requiring unanimity.  Lower courts now cite Johnson to show unanimity is required in federal court.  e.g. U.S. v. Lee, (1st Cir. 2003).  Current issues include, does jury have to agree on every underlying fact, or on the basis for the verdict.  E.g. if instructed on more than one basis for first degree murder, do they have to agree on circumstances.

 

17.6  Apodaca v. Oregon

            Upholds 10-2 voting in Oregon.  Says that minority voices will still be heard and not robbed of influence.

 

NOTE ON MICHIGAN LAW:  Constitution requires jury of twelve for all felonies.  Most states except "petty crimes," but Michigan court has held that jury trial right for all misdemeanors subject to criminal prosecution.  People v. Antkoviak, (MichApp 2000) (right to jury trial for minor in possession of alcohol)

 

17.7  The Unanimous Verdict (1994)

            30 states use less than 12 jurors for "nonpetty" offenses.

            Louisiana and Oregon are the only less than unanimous jury states for felonies.

            Florida allows majority vote for death penalty, advisory opinion

           

            The Deliberative Ideal.  We don't want jurors to think of themselves as representing an interest group.  Their job is to seek the truth.  Persuade, not out vote

 

            Empirical Studies.  Impact of non-unanimous juries is that convictions and acquittals happen at the same rate.  Unanimity leads to more hung juries.

 

            Unanimous jurors are more certain of their results.  People less likely to feel justice was done, especially the minority voters.

 

            Problem with unanimity, what if jury splits difference?  Truth might not be served.

 

            Compare Brazil.  Jury votes by secret ballot, then majority wins.