Jur-E Bulletin: June 10, 2022

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New Jersey Legislation Would Codify Procedures for Challenging Peremptory Strikes

Following a court-led study of jury selection practices undertaken earlier this year, Senate Bill #2778 was recently introduced to spell out steps a trial court must take when ruling on challenges to peremptory strikes.  The new procedures are modeled on standards set out in "Principles for Juries & Jury Trials," promulgated by the American Bar Association in 2005.  The legislation creates a presumption that each party is utilizing peremptory challenges validly, without basing those challenges on constitutionally impermissible reasons.  The procedures would follow the traditional three-step Batson analysis:

  1. An objecting party establishes a prima facie case of purposeful discrimination;
  2. Followed by a burden shift to the challenged party; and
  3. Then a finding by the trial judge of whether the challenged party’s reasons are pretextual or not.

The legislation would direct the trial judge at the third step to determine by a preponderance of the evidence the reasons stated for the use of the peremptory strike, and whether they are the product of (1) an acceptable situation-specific basis and (2) have a reasoned, neutral purpose supported by the record. If that burden of proof is met, the court would permit the use of the peremptory strike.  Otherwise, the court would veto the peremptory strike and state the basis for its ruling on the record.

Washington State Judges Advocate for Continuing Virtual Jury Selection Post-Pandemic

The Seattle Times published an op-ed piece by King County Superior Court judges Patrick Oishi, presiding judge, Jim Rogers, superior court judge and Sean P. O’Donnell, chief judge, addressing the question whether Washington State courts should keep video jury selection in the future or return to the “old” days of crowded in-person jury rooms and lengthy wait times. The authors note the Washington Supreme Court will answer this soon when it decides whether to adopt a rule allowing video jury selection to continue.  The trio advocates for a permanent option.  In summary, they argue video jury selection allows more options for participation and respects the time of the thousands who show up to do their civic duty. It allows more cases to go to trial and will help reduce an unprecedented case backlog. They also believe it is safer because it means fewer people are exposed to risks like COVID or conditions around the downtown courthouse.

Juror Conduct Post-Verdict Does Not Affect Verdict Outcome

In a case before the federal court of appeals for the 2nd Circuit captioned United States v. Hopkins ($), Mr. Hopkins argued that the district court abused its discretion by declining to hold a hearing or interview jurors about potential bias.  After the trial, a juror told the trial judge she and other jurors were afraid of retaliation after the guilty verdict.  Another juror relayed that (a) one juror saw Hopkins's mother taking notes during the voir dire and later feared that the notes could include identifying information about the jurors; and (b) Hopkins's mother followed one juror immediately after trial yelling that the jury got it wrong and let out a “blood-curdling scream,” leading certain jurors to fear for their safety.

Hopkins argues that the district court should have conducted further inquiry to determine whether the jury was improperly influenced.  However, the appellate panel reasoned “probing jurors for potential instances of bias, misconduct or extraneous influences after they have reached a verdict is justified only when reasonable grounds for investigation exist; in other words, where there is clear, strong, substantial and incontrovertible evidence that a specific, nonspeculative impropriety has occurred which could have prejudiced the trial. There was no such incontrovertible evidence here. Indeed, other than the observation of Hopkins's mother taking notes, the comments reflect events that occurred after, not before or during, jury deliberations. We thus conclude that the district court did not abuse its discretion.”

Upcoming Webinar Bonanzas: Jury Size Makes a Difference + Implicit Bias & Juror Decision Making

On Wednesday, June 15 at 12 p.m. CT, the ABOTA Foundation Webinar Series will launch a program to talk about civil jury size from a practical, experienced perspective, as well as the impact of jury size on the cost of impaneling a jury, access to justice and improving juror experience.  The speakers will also discuss results of studies on how jury size may affect the quality and dynamics of deliberations, demographic and attitudinal diversity and how verdict decision rules may impact any disadvantages of smaller juries.  Register here.

Two days later on June 17 at 1 p.m. ET, the National Center for State Courts will host a webinar on “Implicit Bias and Decision Making” as part of a five-part series on Understanding and Solving the Diverse Jury Problem.  Registration is now open.

Iowa Examines Whether “Hesitant to Act” Should Have Been Added to Reasonable Doubt Instruction

In State v. Davis, the Iowa Supreme Court was called upon to decide whether a final jury instruction that explains reasonable doubt in terms of “hesitate to act” should have been added by the trial judge.  The subject phrase was already part of an approved standard instruction that also contained an explanation of reasonable doubt in terms of “firmly convinced.” Defense counsel requested the “hesitate to act” be included in the final instruction, but the trial judge denied it.  This appeal followed.  After recognizing the disputed phrase is “an acceptable definition of reasonable doubt,” the state's supreme court nevertheless denied the appeal saying it was not legally necessary for the judge to include both “hesitate to act” and “firmly convinced” in the final charge.

We want to know about jury innovators we want to know about jury innovators

NCSC is accepting nominations for the G. Thomas Munsterman Award for Jury Innovation, which recognizes states, local courts or individuals that have made significant improvements or innovations in jury procedures, operations or practices. If you know a group or individual that meets this criteria, send your nomination to Greg Mize. Be sure to complete and include this form with your nomination by September 2, 2022.