Philadelphia DA Says Livestreamed Trials Pose Dangers to Witnesses (and Jurors?)
The Philadelphia County Court of Common Pleas recently announced it was launching a YouTube channel where, at a judge's discretion, trials could be streamed for any member of the public to view. And now, Law 360 reports that Philadelphia DA Larry Krasner told the Pennsylvania Supreme Court this week that the court's intent to livestream criminal trials this month after the pandemic largely shut down court operations in March would threaten the privacy of crime victims and raised the specter of rampant witness intimidation. In addition to the prospect of witness intimidation, the DA’s office asserted that broadcasting trials over YouTube made it virtually impossible to sequester witnesses. "A merely self-conscious witness might yield to temptation to compare her public performance with that of the other witnesses. A more self-interested witness could intentionally conform her testimony based on that of other witnesses to achieve her desired outcome."
Sinaloa Cartel Kingpin “El Chapo” Raises Numerous Juror Misconduct Issues
Earlier this month, attorneys for Joaquin Guzman-Loera filed a 245-page appellate brief in which 60 pages were devoted to a variety of jury misconduct allegations. For example, eight days after the guilty verdict was rendered, an anonymous juror spoke to Vice News saying numerous jurors during the trial followed news reports of the case and discussed the trial with others. The defense criticized the trial judge for not examining jurors regarding misconduct allegations.
Discussing Implicit Bias with Prospective Jurors
For the past decade, millions have taken the Harvard Implicit Bias Test to better understand the dynamics of unconscious influences on decision making. The Jur-E Bulletin has reported on a variety of efforts undertaken by social scientists and legal professionals to address the role of implicit bias in jury trials. Trial consultant Dr. Ken Broda-Bahm recently advocated for a voir dire questioning method that indirectly uncovers juror implicit biases. He recommends:
Instead of asking whether an experience would bias a juror, ask about the effect it would have. Instead of asking the “Yes/No” question of whether their given attitudes would bias their decisions, ask about the difficulty in setting it aside.
How would it affect you? Can you describe the influence that might have on you? Do you think you would inevitably be thinking about that on at least some level as you hear about this case? Can you tell me more about how that experience could be on your mind as you evaluate the similar situation at the heart of this case? How easy or how difficult would it be for you to set that experience aside and keep it out of your mind? How likely or unlikely do you think it is that you could just bracket that out?
In other words, instead of talking about “bias,” talk about influence on thinking.
Want to Watch a Good Ole Live Jury Trial During the Pandemic? Simply Go to the Court TV Archive
Lest we forget how we used to do it, we can take a trip down memory lane and log into the Court TV archives. For those of us who teach jury trial management, this video library is a great way to not only see some landmark trials (OJ Simpson, Casey Anthony, etc.) but also to behold some dos and don’ts for trial lawyers and judges.
6th Federal Circuit Orders New Trial Where Trial Judge Failed to Hold Evidentiary Hearing on Juror Misconduct During Final Deliberations
In a copyright and trademark infringement case that resulted in a split verdict, it was learned after trial that a juror during deliberations interjected off-the-record information that the plaintiff was willing to drop its lawsuit if defendant would make a few minor changes to his website but refused to do so. The juror reportedly told colleagues that if defendant wasn't so stubborn, none of us would be here. The juror also erroneously reported that the defendant’s annual income was $750K and, hence, he could suffer a compromise verdict. The appellate court opined the juror's statement had a negative impact on the jury's attitude toward defendant and influenced the jury's deliberations. Importantly, it was reversible error for the trial judge to not hold a hearing promptly after the juror misconduct allegations were discovered.