January 6

From Cyberlaw

Contents 1 History of jury 2 Stories 3 Cross Examination 4 Problem: Time travel to old Salem 5 Circumstantial evidence 6 Jury Challenges 7 How far can you go in investigating the jury? : Runaway Jury 8 Small group assignment 9 Tanner 10 Archibald Cox

History of jury

• England invaded in 1066
• Norman conquest breaks things up so people are run by the local don
• Roving tribunal to settle disputes that the local lord has not resolved
• Ride into town and you have a preexisting group of people who cared
• Problem: people caring about the controversy are the people most involved in it, so the factual resolution still rests with the judge. Huge vulnerability
• ‘we’ are the audience for this dispute resolving process; if it’s people ‘like us’ resolving this case, then the judge is insulated and we can defer to the judgment
• for a while, the judge holds jury in contempt if they wont rule the way he wants
• the jury evolves through great political courage with the idea that the jury should be independent
  • as soon as juries are independent of the judge, the juries have the power to nullify the law
• Rationale behind the jury system: supposed to be a group that represents the mores of society as a whole
• What is Scalia’s theory of how a court should run?

Stories

• is my cousin vinny a hero story?
• Once you assume that people can do what the rules of evidence allow them to do, you’re in a story
• Once you realize that what evidence is offered is your choice, you recognize that you’re a story teller

Cross Examination

• What distinguishes direct from cross examination?
  • No leading questions : Rule 611(c)
  • A leading question = a question that suggests the answer
• What are we pretending here?
• If the lawyer is doing the narrating, then the jury doesn’t have a chance to believe the witness when they tell the story
• We want the witness to be the story teller
• If the witnesses is asked, “was the light red," and the witness says yes, how do you break down the idea of credibility? What assumptions do you have to make about the witness in order to credit the statement?
  • That the witness perceived the event accurately; remembered it accurately; is sincere; is speaking the same language as the jury
    • These are the testimonial capacities of the witness.
    • They are focal points for relevance: perception, memory, sincerity, language
• Non leading questions are who,what,when,where,how,why – open ended questions that leave it to the witness to decide what’s relevant
  • But the actual practice is that you are allowed to lead a witness to the crucial issues, since that’s the only place where the focal points really matter
• Why is the leading question permitted on cross?
  • it's not a matter of efficiency
  • the fuction of the direct is to present the testimony, and the function of the cross is to test the testimonial capacities
• the leading question is an instrument of control
• Hearsay rule: we want the witness to limit their story to what they saw happen
  • otherwise they would be lending their credibility or non-credibility to that other person

Problem: Time travel to old Salem

• would you choose a jury from Salem or the present?
  • A jury from that time would believe in witchcraft
• Is the function of the trial to settle the dispute according to the mores of the community, or is there some higher responsibility?
• Duncan: juries required
• Winship – proof beyond a reasonable doubt = proof BRD of each of the essential elements of the offense
• But there's a problem:how do you deal with affirmative defenses?
• Ongoing confusion about what’s in and what’s out, leading up to Blakely

Circumstantial evidence

• presents us with a proposition that is not framed in terms of whether we believe a witness
• the jury has to make a distinct inference
• the jury is not in a preferred position – the more distinct the circumstantial evidence is, the less the jury has advantage of having been there and having deliberated
• this machine is not built for generating credibility in the same way as with testimonial evidence
• Blue Bus and license plate roulette
  • problematic probability
  • in practice, the offering party would not rest just after presenting the statistical evidence

Jury Challenges

• Swain v. Alabama
  • when looking at the Warren court cases, have a look at how many were death cases involving black defendants
  • established law to that point that you don’t have a right to a particular balance in your jury.
  • There had never been a black member of the jury in that area. They used the struck juries method. There would be a venire of 100 and then would proceed to strike the jury
  • Justice White said that it couldn’t be known whether the P or the D struck the jurors, and unless Swain could prove that the state proved this pattern of all white jurors, he hasn’t got a claim
  • Not reversed until 1986 (Batson)
• Nesson’s first case was the one that made it unconstitutional to strike women. Showed that the same group of white people served over and over again on juries (looked at 50 year record)
• Old way of selecting jury: Key man system (A "key man" in the community picks the jury venire, so regardless of what you said about striking jurors, your pool was already limited)
• Peremptory vs. for cause challenges
• Peremptory challenges are how you game the system. The way you handle yours vs. how the other side uses theirs, you can end up at the end of the jury selection process with a little control.
• Batson
  • No more peremptory challenges based on race. Peremptories are no longer peremptory.
  • OK, so how do you actually work the process.
  • The prosecution strikes the first juror, who is black; do you object?
    • Yes, but judge probably overrules. Won't sustain until the second one.
    • On the second one, P gives two plausible explanations, and then the judge must decide pretextuality.
  • “A defendant may establish a prima facie case of purposeful discrimination solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial.”
    • Only needs one case, doesn’t need to show the show a history of discrimination
    • Must come forward with a legitimate explanation
  • Batson = a process for flushing out the prosecutor
  • It places in the hands of judges a weapon to control the racial use of peremptory challenges.
    • If the judge is as biased as the P, these determinations are going to still come out in an unsatisfactory way.
    • This is a huge change in trial practice.
• J.E.B.
  • The jury also has constitutional rights
  • Even though it might be true that women will favor a female defendant, you can’t strike them for that basis.
• Ever since, the SC has denied cert. It looks as if the court was ready to embark on the elimination of the peremptory challenge, but they stopped. So now we have a structural presumption.

How far can you go in investigating the jury? : Runaway Jury

• The model of the perfect jury is 12 Angry Men, where at the end of the film they all just disappear back into the crowd. Anonymous, representing the people as a whole
  • but both sides are extremely invested in selecting the jury it wants
• is there anything illegal about investigating the venire?
  • Can you invetigate? Call friends?
• What should the court do to protect jurors?
  • Should their names not be released?
  • Should courts resist investigation?
• In MA, the jury is selected very quickly. The lawyers don’t get to ask questions. The jury is selected within 20 minutes.
• In TX, AL, FL, (“plaintiff’s states”), lawyers get voir dire.
• Hypo: company that does social science research on the kinds of jurors that are most likely to rule for P in a negligence case. Based on a lot of research data.
  • Turns out on the basis of a survey, that republicans are much less likely to rule for the plaintiff.
  • Could you ask if the jurors were republican? How about Catholics?
• Nesson helped with the Ellsberg defense.
  • Had a huge network of people, who all called in about potential jurors when the venire list was revealed.
  • Had a pschyatrist sitting with them during selection
    • Take the 64 year old woman who has just lost her husband. Someone who has just suffered a loss is looking for someone to reconnect with a sense of meaning and purpose. She will take up your cause and be your advocate in the jury room.

Small group assignment

• Get together in groups and talk about the two differenct perspectives from yesterday.
• Talk about what Fern said when she made the point that the failings of the proof process were a huge imposition on the victim. That it’s by reason of the inadequacy of the trial to come to a well supported conclusion that the victim now bears a tremendous burden. *Carry that to the role of the defense counsel in seeking that the case is well prosecuted
  • Is the system designed to accomplish excellent prosecutions??
  • D’s role is not to get to the truth, but to test P’s case.
  • Keeping the system honest
  • Give D the tools that are needed to test P’s case
• Interested in the forest not the trees; a progression of thought emerging where first we want to know what the law’s mission is, then what a trial is meant to do, then how the truth has two sides, then the argument between wendy and martin
• Law, trial, and the duality of truth

Tanner

• juror comes forward and says everyone was doing drugs
• is a high water mark of the picture of the jury as the black box
• not as clean a case as it might be, since the activities didn’t take place in the jury room.
• Rule 606: jurors are made incompetant as witnesses to testify int eh juror process
• Do you think the D atty actually missed this?
  • Ask: are drunk juries are good or bad for us?
• Principle: we don’t want post-facto juror challenges; make it then

Archibald Cox

• He always won. Here’s how he would do it.
• Cox would begin his oral argument by stating the other side’s case, and he would do it so well that it would shock the lawyers on the other side, and the judges would sit back in amazement.
• Then the judges are sitting back and ready to listen to him. He has their full attention, since they want to know how he’s going to get out of it.
• Show your vulnerabilities ; what your opponent has been thinking about
• Similarly, reveal the vulnerabilities of your witness
• The way in which you show your understanding of the other side makes a huge difference. Cox was so respectful of his opponents that his power as an advocate grew; he becomes someone you want to be persuaded by