Alaska’s House Bill 315

The Anchorage Daily News reported on March 26, 2014 that Alaska House Bill 315 was briefly considered by the House Judiciary Committee but was held for future consideration. The bill would give criminal defendants the right to present evidence in support of a nullification argument and argue that theory to a jury. The key language of the bill is:

(b) A defendant has the right to inform the jury of the jury's power to judge the just application of the law and to vote on the verdict according to conscience. Failure to allow the defendant to inform the jury of the jury's power is grounds for a mistrial.

(f) A potential juror may not be excused or disqualified from serving on a jury because the juror expresses a willingness to exercise a power granted to the jury under this section.

The state attorney general's office opposes the bill, indicating it would lead to “unfair and disorderly trials.” Additionally, Doug Gardner, director of the Legislature's legal services division wrote a memo which expressed concern that the bill may not comply with U.S. Supreme Court precedent that "it is the duty of juries in criminal cases to take the law from the court, and apply that law to the facts as they find them to be from the evidence." Additionally, he wrote another memo comparing the provisions in House Bill 315 to New Hampshire Revised Statute 519:23-b, which is New Hampshire’s statutory authority for jury nullification.

The Fiscal Note Analysis prepared by the Department of Law includes some interesting commentary. It states:

Passage of this bill would result in more cases brought to trial by jury because even though the offender does not dispute that he or she broke the law, the offender could argue for the jury not to follow the law.

Impeachment by Prior Conviction

Professor Kathryn Stanchi of the Temple University Beasley School of Law and Professor Deirdre M. Bowen, J.D., Ph.D. of the Seattle University School of Law released a law review article titled, “This is Your Sword: How Damaging are Prior Convictions to Plaintiffs in Civil Trials?” This paper challenges a fundamental assumption that every U.S. law student is taught; prior convictions are a powerful tool to impeach an opposition witness in the eyes of jurors. The abstract to the article states:

The conventional wisdom in law is that a prior conviction is one of the most powerful and damaging pieces of evidence that can be offered against a witness or party. In the legal lore, prior convictions seriously undercut the credibility of the witness and can derail the outcome of a trial. This paper suggests that may not always be true.

This paper details the results of an empirical study of juror decision-making that challenges the conventional wisdom about prior convictions. In our study, the prior conviction evidence did not have a direct impact on the outcome of the civil trial or the credibility of the witness with the conviction. Moreover, we tested prior conviction evidence with a white witness and an African-American witness and saw no difference in results.

The prior conviction evidence did, however, change the trial in a substantial, but indirect, way. Rather than the direct effect on outcome that we might have expected, the introduction of the prior conviction evidence changed the mental decision-making process of the jurors. Specifically, the evidence seemed to subconsciously lead the jurors to conclude that to decide liability, they had to believe one party over the other. The prior conviction evidence thus turned the trial into a zero sum credibility contest in which believing the plaintiff’s story meant disbelieving the defendant’s (and vice versa). This “zero sum” effect did not appear in the control version of the trial.

In sum, the results of our experiment suggest that while prior convictions are highly noticeable and powerful pieces of evidence, they may not always be the bane that lawyers think they are. Nevertheless, the introduction of this evidence has the potential to change a civil trial by changing the juror decision-making process.

Illinois: Juror Questions in Criminal Trials?

Kristen L. Sweat, a University of Illinois College of Law 2014 J.D. candidate published a note in the current issue of the University of Illinois Law Review titled, Juror Questioning of Witnesses in Criminal Trials: The “Jury’s Still Out” in Illinois,” 2014 U. Ill. L. Rev. 271. The abstract to the article states:

Over the last couple of centuries, the American jury has devolved from an active interrogator to a passive observer. Various reform movements have attempted to restore the jury’s active role. Most recently, Illinois passed Illinois Supreme Court Rule 243. This rule allows members of the jury to ask witnesses questions. The hope is that by allowing jurors to ask questions, they will become more engaged and more deeply comprehend what is occurring in the trial. Additionally, it will make for a more informed jury, raising the chances that a fair verdict is returned.
Rule 243, however, only applies in civil trials. Jurors cannot ask questions of witnesses in criminal trials. This Note argues that Rule 243 should expand to allow jurors to ask witnesses questions in criminal trials. In criminal trials, the most basic American interests of freedom and justice are at stake. Allowing jurors to ask questions of witnesses is paramount to preserving these interests.

This Note begins by looking at the history of juror questioning in America, as well as in Illinois, specifically the events leading up to the passage of Rule 243. Additionally, it presents the approaches of other jurisdictions to juror questioning. There are three types of approaches: (1) express prohibition of jury questions; (2) no express prohibition but lack of implementation of the practice; (3) allowance of jury questions within specific guidelines. While there are noted benefits and drawbacks to allowing jurors to ask questions of witnesses, this Note argues that the interests of justice are best served by allowing these questions in both civil and criminal trials. It concludes by proposing a rule similarly worded to Rule 243 but including guidelines particular to criminal trials.

United Kingdom Continues to be Tough on Juror Discipline

The Chichester Observer March 26, 2014 that a juror in the United Kingdom was jailed for 21 days for failing to appear for a trial he was hearing. Presiding Judge William Wood QC, said: “The defendant has not been able to produce any medical evidence but has had to admit today that when he said he was ill, the reality is that whatever the state of his throat, he did actually go and work the night shift from 7pm to 7am." The judge noted that he has been released from hearing the remainder of the trial at a “substantial” cost to the court, the jurors and the parties.

Upcoming Events

March 28, 2014

Jur-E Bulletin is a publication of the Center for Jury Studies.

Editor: Greg Hurley

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