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When a person is convicted of a felony offense, they lose the right to vote, the candidacy to sit on a jury, the ability to hold public office, and the right to own firearms. In addition, civil rights revocation also denies the eligibility of certain occupational licenses and state-funded scholarships. It is unknown, a priori, if civil right status influences labor market outcomes, voting behavior, or educational attainment, any of which may affect incentives for convicted felons to re-offend. As an aggregate measure of these channels, I analyze the casual link between civil rights restoration and rates of recidivism. To establish this relationship, this paper uses variation in the Rules of Executive Clemency, which affect an ex-felons’ ability to restore their civil rights. I find that restoring an individual’s civil rights reduces their probability to recidivate by 18 percentage points, which translates to a reduction in the overall recidivism rates by 1 percentage point.

Rap is well-established as a predominantly black genre. Among the 500 readily identifiable criminal cases where courts admit rap lyrics against rappers, an overwhelming majority led to young black men’s convictions. Because society believes rap is “more literal, offensive, and in greater need of regulation” than country, punk rock, or heavy metal, most rap lyrics contain unfair prejudice which substantially outweighs the probative value of the lyrics in the eyes of a jury. Therefore, courts often misapply Federal Rule of Evidence (FRE) 403 to rap lyrics when they admit rap lyrics into evidence. Judges also participate in discrimination against young black male rappers because rap is so inextricably linked to black men and judges usually admit unfairly prejudicial rap lyrics into evidence against the rapper defendant, even though rap lyrics are usually unreliable sources of literal admissions of guilt. This discrimination is so prevalent today that it violates the Fifth Amendment Due Process Clause under Bolling v. Sharpe because it results in grossly unfair outcomes in the American justice system against young black men. Additionally, prosecutors commonly use rappers’ lyrics against rappers as evidence of literal admissions of guilt even though the First Amendment is intended to protect artistic expressions and rappers’ lyrics are usually not specific enough to be literal admissions. Therefore, judges also violate rappers’ First Amendment right to free speech when they admit lyrics that are not literal admissions of guilt. Unfortunately, the Supreme Court of the United States’ majority opinion did not discuss in depth the issue of the First Amendment on the most recent criminal rap case, Elonis v. United States. By avoiding the First Amendment issue, the Supreme Court left addressing rappers’ plight until another day. Accordingly, this Article is the first to propose that the Supreme Court adopts this Article’s unique and new stringent factor test into the Federal Rules of Evidence. This Article also proposes additional safeguards. For instance, the jury must be given jury instructions limiting the scope of the rap lyrics and providing a background on the realities of rap and its negative treatment in society. Lastly, defendants should be highly encouraged to hire an expert in rap to explain their prejudicial value if the prosecution wants to admit those lyrics into evidence. These new safeguards will serve to lower the chance of a court wrongfully admitting a rapper’s unfairly prejudicial lyrics into evidence against him in a criminal trial, give young black men a better chance at a fair trial, and allow for a broader right to freedom of expression. If this is not immediately remedied, other entertainers including comedians, horror story novelists, painters, and more could be convicted of crimes they did not commit simply for their artistic expressions.

The coronavirus pandemic has uprooted life as we know it. No institution is immune. As a result of the crisis, trials in every state (jury and bench, criminal and civil) have been continued until later dates. But must they be continued? Can they be constitutionally conducted over remote videoconferencing platforms like Zoom? And can they be conducted digitally even absent the consent of one (or both) parties? While due process concerns might render a digital jury trial unconstitutional in criminal cases, applying a balancing test to our current public health crisis weighs in favor of allowing videoconference jury trials in civil cases. In fact, a civil jury trial by Zoom might not only be permissible; it might also be necessary to actualize the Seventh Amendment's protections, especially if the COVID-19 pandemic continues longer than expected. If courts allow digital jury trials, the risk of certain pitfalls—such as the possibility of someone recording the proceedings—must be clearly communicated to the parties in advance. This paper will appear in an ABA book on online court procedures, set to be published at some point in the future.

In this chapter we discuss the strategic use of the alibi defense in U.S. criminal courtrooms. While the alibi defense appears to be the holy grail for defendants, in reality it shelters only a relative handful of defendants who face charges in our criminal courts. True alibi evidence is hard to come by, and convincing a jury of its trustworthiness is a further challenge still. Moreover, alibi notice rules in every jurisdiction require the defense to share key facts of the alibi with the prosecutor up front, thereby allowing the prosecutor to re-craft the suggested timeline or to marshal rebuttal evidence to refute the claims of alibi witnesses well before trial. We first explain the nuts and bolts of how alibis work in criminal cases, paying particular attention to influence of time: the precision with which police and prosecutors articulate the timeline for the alleged crime, the defense attorney’s assessment of the right time to present alibi evidence to law enforcement or the tribunal, the defendant’s ability to positively establish his alternate location at the time the crime allegedly occurred, and the amount of time that passes between the crime and the arrest of the defendant. We next provide a guide to alibi notice rules in federal court as well as in the 50 state jurisdictions in the United States. We examine the history and variety of rules about when notice must be provided, the constitutionality of those rules, and the impact of a defendant changing her mind after previously notifying the court and prosecution of her intention to rely on alibi. In the final section of the chapter, we discuss two specific risks that face defense attorneys who are considering whether to litigate an alibi defense at trial: procuring a false alibi, and failing to present an alibi defense when there is evidence to support it. Throughout the essay we offer evidence from an original survey of practicing and retired defense attorneys about how they investigate and deploy alibi defenses on behalf of their clients.

Part one of this paper examines how Hong Kong's new National Security Law reflects elements of post 9/11 security laws in liberal democracies including broad definitions of crime that include speech, the assertion of universal jurisdiction, elements to counter extremism, special national security courts including limits on trial by jury, increased police powers, new national security institutions including central government pre-emption and acceptance of co-ordinate construction. The second part, however, argues that the law goes far beyond even illiberal laws in liberal democracies in its impact on speech, the independence of the academy, the bar, and the judiciary and its effects on civil society, the media and educators by its emphasis on loyalty oaths, official disqualification, national security education and the creation of Beijing led national security institutions that may be immune from the rule of law.

Researchers have long argued that an important impetus for the creation of the administrative state was the desire to bring experts into government and especially into the regulation of business. Yet Progressive Era politicians did not focus on attracting experts when crafting one part of the administrative state, independent regulatory commissions. This article examines the contemporary understanding of regulatory commissions and shows that they were most often intended as a substitute for vacillating juries. Commissions’ most important advantage over juries was that they acquired experience in investigations of a single subject over time, not that their appointees were already academics or experts in a particular subject. This article also shows that appointments to these commissions did not demonstrate a desire for apolitical expertise. This is the first examination of all members appointed to the Interstate Commerce Commission, Federal Trade Commission, Federal Power Commission, Federal Communications Commission, and the Securities and Exchange Commission in the period from 1887 to 1935. This article finds that political and sectional balance, rather than previous expertise, were the most important criteria for these commissions’ members, at least until the late 1920s, after the end of the supposed Progressive Era.

The U.S. Supreme Court’s opinions in Ring v. Arizona (2002) and Hurst v. Florida (2016) are two critical parts of the jurisprudence related to capital defendants’ right to trial by jury under the Sixth Amendment to the U.S. Constitution. Each opinion clarified capital defendants’ rights under the Sixth Amendment. While the new rules announced in the opinions seemed clear at the time, courts have grappled with how to apply Ring and Hurst — specifically to defendants whose sentences were final when the opinions were issued. Courts have diverged on whether the new rules announced in Ring and Hurst apply retroactively. This Article attempts to unravel the confusion surrounding why courts across the country have reached differing conclusions about whether these landmark decisions should apply retroactively. Ultimately, this Article explains that the case law regarding retroactive application of Ring was mostly consistent. It was after the U.S. Supreme Court decided Hurst that four points of confusion arose surrounding retroactivity: (1) Was Hurst a direct result of Ring? If so, should it apply retroactively? (2) What role did the Eighth Amendment play in both Ring and Hurst? (3) Why did some courts reach divergent conclusions on Hurst retroactivity even in applying the same federal standard? (4) Does the Florida Supreme Court’s invention of partial retroactivity for Hurst make sense? By exploring and explaining these sources of confusion, this Article aims to help clarify the broader landscape of modern capital sentencing jurisprudence.

While the American civic religion is to be distrustful of government, feelings of discontent regarding our systems of criminal investigation and adjudication feel historic. And while those systems are capable of great carnage en route, the endgame is, ultimately, criminal punishment. Yet before it can be imposed, every prosecution—and therefore every defendant—is meant to encounter a potential “circuit breaker”: the jury. I propose that we re-inject this democratic voice into our criminal adjudications, but through an entirely novel structure: the defendant (and perhaps the prosecutor) would have the choice of invoking a jury empowered to ‘veto’ any judicial sentence. By carefully designing the ex-post system, including to discourage over-invocation, we could provide more democratic results in individual cases, hold prosecutors to their charging threats, and obtain a meaningful sense of whether—as many of us believe—our institutions of criminal justice are dangerously out of touch with popular conceptions of what ought to be.

The Framers of the Sixth and Seventh Amendments to the United States Constitution recognized that jury trials were essential for maintaining democratic legitimacy and avoiding epistemic crises. As an institution, the jury trial is purpose-built to engage citizens in the process of deliberative, participatory democracy with ground rules. The jury trial provides a carefully constructed setting aimed at sorting truth from falsehood. Despite its value, the jury trial has been under assault for decades. Concededly, jury trials can sometimes be inefficient, unreliable, unpredictable, and impractical. The COVID–19 pandemic rendered most physical jury trials unworkable but spurred some courts to begin using technology to transcend time-and-place limitations. These reforms inspire more profound changes. Rather than abolishing or cabining the jury trial, it should be reinvented with the benefit of modern science and technology. Features to be reconsidered include having local juries even for national civil cases, using unrepresentative groups of only six to twelve jurors, allowing attorneys to arbitrarily exclude jurors during voir dire, having synchronous and chronological presentations of cases over days or weeks, asking jurors to ignore inadmissible evidence and arguments that arise during live trials, and relying on secretive deliberations infected by implicit bias. Several of these extant practices work to disenfranchise or disempower Americans along racial, gender, and economic lines, thereby undermining one of the jury’s core functions. Other features cause jurors to err in resolving cases accurately, which can sometimes mean the difference between life and death. A reinvented, modernized jury institution can better serve its purposes by increasing citizen engagement, better fostering civic education and democratic deliberation, improving accuracy.

Illegal downloading of copyright materials by end-users had its heyday in the early 2000s, with music, television, and film studios desperately searching for a way to curb the tide of sharing. This chapter uses the example of Capitol Records v Jammie Thomas-Rasset, the first file-sharing case to be tried before a civil jury in the United States, to demonstrate the disproportionate penalties associated with P2P file-sharing. The matter concerned an individual’s sharing of 24 songs, and the damages varied between $222.000 and $1.92 million. Building on this copyright infringement case, the chapter ponders the appropriateness of copyright infringement damages in a world where many infringers see no profit from their copyright breaches. To reach this goal, the chapter discusses the content of the Thomas-Rasset case and the externalities of this judgement as well as copyright enforcement against P2P file-sharers in the US.

The William West v. Access Control Related Enterprises, LLC decision in which a California court held that a California citizen could not be required to litigate an action involving a Delaware LLC in the Delaware Chancery Court because that forum does not provide for jury trials. In a subsequent addition to the choice of law battle between California and Delaware, the Delaware Chancery Court in JUUL Labs, Inc. v. Grove held that the inspection of books and records of a Delaware corporation is governed by Delaware law notwithstanding a California statute to the contrary.

This is a review of Katherine B. Forrest’s new book When Machines Can Be Judge, Jury, and Executioner. The book does an excellent job discussing issues of fairness and racial disparities from the use of artificial intelligence risk assessment tools (hereinafter “AI”) for decisions such as pretrial release and likelihood of recidivism. This is a timely topic as the technology is currently a tipping point. While Europe has begun to implement protections for defendants regarding AI, the U.S. is increasing its reliance on AI without such safeguards. This review includes a discussion on the topics of how AI compares to human judge predictions and decisions, fairness and racial outcomes, how recidivism is frequently misunderstood and its relevance, how human decisions are inextricably intertwined with AI, and the proper understanding of an AI’s “error rate.”

The Supreme Court has gone to great lengths to prevent jurors from holding defendants’ silence against them. In a trilogy of opinions, the Court concluded that when a defendant refrains from testifying, (1) the prosecutor and judge cannot make adverse comments about that decision; (2) the judge can give a “no adverse inference” instruction even over a defense objection; and (3) the judge must give a “no adverse inference” instruction upon a defense request. Conversely, the Court has never ruled that jurors can impeach their verdict based upon jurors holding a defendant’s silence against him, and lower courts have ruled against recognizing such a right to jury impeachment. Meanwhile, the Supreme Court has addressed the issue of juror racial bias in reverse. In 2017, the Court ruled in Pena-Rodriguez v. Colorado that jurors must be allowed to impeach their verdict based on jurors holding a defendant’s race against him. But the Court has never held that there is a right to an implicit bias jury instruction, and no lower court has ever recognized such a right. In Pena-Rodriguez, however, the Supreme Court clearly recognized that the right to an impartial jury not only addresses “unique historical, constitutional, and institutional concerns,” but also requires “[a] constitutional rule.” Specifically, the Pena-Rodriguez Court concluded that “[a] constitutional rule that racial bias in the justice system must be addressed—including, in some instances, after the verdict has been entered—is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right.” This article contends that this rule must go further and address juror racial bias on both the back end and the front end. For the same reasons that the Supreme Court created the right to a jury instruction that jurors must not hold a defendant’s silence against him, it should recognize the right to a jury instruction that jurors must not hold a defendant’s race against him.

This brief on behalf of Professor Daniel Epps argues that the Supreme Court should grant the petition for certiorari in Pon v. United States as this case presents an excellent opportunity for the Court to clarify the doctrine of harmless constitutional error and provide needed guidance for lower courts. Although this Court established a rule for harmless constitutional errors in Chapman v. California, it has never answered a set of fundamental questions raised by that decision. For example, the Court has never explained what source of law generates the Chapman rule or what its relationship is to the governing federal statute, 28 U.S.C. § 2111. The leading view is that harmless error is part of the law of remedies. Others believe that it is mandated by constitutional due-process guarantees. Amicus’s own theory is that harmless error flows directly from the underlying constitutional rights at issue in an appeal. This larger debate about harmless constitutional error is of more than merely academic interest. Trying to understand harmless error’s foundations is necessary if the Court is to explain how harmless-error analysis should work in practice. If harmless constitutional error is a wholly remedial doctrine, then an approach like the Eleventh Circuit’s—which looks to “overwhelming evidence of guilt”—may well be permissible. But as opinions from jurists ranging from Justice Brennan to Justice Scalia show, powerful intuitions about harmless error contradict the Eleventh Circuit’s approach. Rather than asking about whether a jury in an alternate universe would have convicted the defendant had the error never occurred, courts instead must ask “whether the guilty verdict actually rendered in this trial was surely unattributable to the error.”

This brief was filed by legal scholars with expertise in federal courts, federal jurisdiction, and federal civil procedure in TransUnion LLC v. Ramirez, which will be argued before the U.S. Supreme Court on March 30, 2021. In passing the Fair Credit Reporting Act, Congress imposed obligations on credit reporting companies like TransUnion that are designed to protect precisely the kind of individuals who were members of the plaintiff class in this case. Congress also provided a cause of action to allow those individuals to enforce the companies' obligations. At trial, the jury found that the evidence supported each statutory element of the cause of action as to each individual class member. And the jury awarded remedies that are specifically authorized by the same statute that created the cause of action. Nonetheless, TransUnion asks this Court to throw out the judgment below for lack of subject-matter jurisdiction based on additional, uncodified elements that are ostensibly necessary for this case even to qualify as a "case or controversy" under Article III. That is not, however, what Article III requires. Doing so would not only deprive class members of a jury verdict vindicating their rights after years of litigation, but also upend this Court's standing jurisprudence and require class members--and anyone injured by violations of similar congressionally created statutory rights--to seek redress only in state courts.

The Seventh Amendment requires that the civil jury trial right be “preserved” in “Suits at common law.” Those bits of constitutional text have long set the justices on a path of historical reconstruction. For roughly two centuries, the Supreme Court has determined the scope of the civil jury trial right in contemporary federal courts by reference to historic English courts. But no one is happy with the current test. In one widely used variant, it requires an inquiry into analogous 1791 actions, followed by an inquiry into the legal or equitable provenance of the remedy sought, and then a weighing that favors the second of these two incommensurable inquiries. The test is anachronistic and internally incoherent, and it leads to anomalous results. This Article critiques the current approach and offers a new test for the scope of the Seventh Amendment civil jury trial right. This test would presume a civil jury trial right, but with three categorical exceptions—one for claims developed in equity, another for remedies developed in equity, and a third for case-aggregating devices developed in equity (e.g., the class action). The historical inquiry that is required would be somewhat stylized. But it is more manageable than the current approach, and it would allow judges to determine the scope of the civil jury trial right with greater predictability and accuracy. Beyond addressing the scope of the Seventh Amendment right, this analysis also has implications for incorporation—should the states remain free to decide whether to retain a distinction between law and equity in their own courts?

The practice in Missouri of informing judges of incarceration costs resulted in reductions to both mass incarceration and recidivism. States that allow jury sentencing are ideal for allowing jurors to also consider incarceration costs. The need for such common-sense reform is timely. COVID-19 has drastically reduced state budgets and there is widespread agreement that the criminal justice system over-punishes. This results in rare, bipartisan support for criminal justice reform. Jury incarceration-cost salience is also a more palatable method for reform among politicians who fear being labeled “soft on crime.” This Article presents the findings of a first-of-its-kind study, the results of which strongly support juror incarceration-cost salience. This Article also includes analysis of the arguments for and against the practice. Such consideration results in a clear preference for juror incarceration-cost salience. It would save valuable state resources that could then be invested into more productive programs, lead to a reduction in crime rates due to the criminogenic effect of incarceration, and would benefit not only incarcerated individuals but also their families and communities. These benefits, combined with the promising results of this study and the near-perfect converging of political interests in favor of prison reform, all point to a climate that is ripe for such social change.

The COVID-19 Pandemic has arguably accelerated auditors’ shifts to 100% remote audits, with unknown consequences on auditor liability exposure. In this experimental study, a moderated-mediation model is proposed and tested to explore the joint effects of the modality of auditors’ interview evidence collection and the COVID-19 Pandemic on jurors’ perceptions of auditors’ intentions to collect high quality evidence and auditor liability. 158 jury eligible participants read a case that manipulated the client interview modality (face-to-face vs. remote/virtual) and the timing of the audit (before vs. during the COVID-19 Pandemic) in a 2x2 between-subjects experiment examining jurors’ perceptions of auditors who failed to detect collusion. After reading the case, participants provided their perceptions of auditors’ intent to collect high quality evidence and auditor liability for shareholder losses. Results indicate that, while the risks are likely to be lessened during the COVID-19 Pandemic time period, auditors may be exposed to increased risk of liability for collecting interview evidence virtually outside of the COVID-19 Pandemic time period.

The Sixth Amendment criminal jury right is integral to the United States criminal justice system. While this right is also implicated by the Due Process Clause, Equal Protection Clause, and several federal and state statutes, criminal jury trial rates have been declining for decades, down from approximately 20% to 2% between 1988 to 2018. This dramatic drop in the rate of criminal jury trials is an effective measure of the decreased access to fair and constitutional criminal jury trials. Prior to the pandemic, critics generally ascribed the decline in criminal jury trials to two sources, first the “trial penalty,”—the substantial difference between the sentence offered prior to trial versus the sentence the defendant receives after trial—and second, the unfettered abuse of the Speedy Trial Act by prosecutors, defense attorneys, and judges. Both of these sources have had the effect of pressuring criminal defendants to plea or otherwise delaying the accused’s ability to obtain a jury trial. The COVID-19 pandemic caused national criminal jury trial rates to plummet further, with some states or jurisdictions nearing or reaching zero. Several courts throughout the country contemplated or implemented procedures to continue conducting criminal jury trials, including trials that were (1) socially distanced and in-person; (2) conducted by video conference technology; or (3) a hybrid model of video conference jury selection with socially-distanced/in-person trial. This Article argues that the pandemic served as a type of stress test, revealing the inability of the criminal justice system to ensure the criminal jury right. Thus, the pre-pandemic problems, even if eliminated, will not solve the Sixth Amendment problems presented during the pandemic environment. The Article also argues that pandemic solutions to increasing criminal jury trial rates, while noble in intention, still likely force the accused to either waive his Sixth Amendment rights or choose the speedy trial right at the expense of the confrontation right or jury right, potentially causing prosecutors and defense attorneys to shirk their ethical obligations to seek justice or zealously represent their clients. Furthermore, because the Supreme Court’s rejection of a “functionalist assessment” of Sixth Amendment rights in Ramos v. Louisiana likely calls into question the constitutionality of such measures, greater action is needed to ensure a pandemic-proof criminal jury right. Indeed, while the vaccine may be a cure for the virus, it is not a cure for the problems it caused to our criminal justice system. Accordingly, to ensure a pandemic-proof criminal jury right, Congress should enact measures to end the trial penalty, provide courts and parties with a meaningful ability to enforce the Speedy Trial Act, and most importantly, amend the Constitution to create a criminal jury right that allows courts to conduct jury trials via video conference.

In GlaxoSmithKline LLC v. Teva Pharmaceuticals USA, Inc., the Federal Circuit considered whether labeling and marketing materials for a generic drug could induce infringement of a patent on a method of using that drug, despite the label and those materials having carved out indications relating to that method pursuant to FDA procedures and the Hatch-Waxman Act. In an original opinion from 2020 and a revised opinion in 2021, a panel of the court affirmed a jury finding of inducement. This brief calls on the full Federal Circuit to reconsider that decision en banc, for two reasons. First, the panel’s treatment of inducement opens up a direct conflict between patent law and the Hatch–Waxman Act amendments to the Federal Food, Drug, and Cosmetic Act. Those amendments, which enable abbreviated new drug applications (ANDAs), require a generic to use the same labeling as its equivalent brand-name product with only limited exceptions, as part of the carve-out procedure that deals specifically with inducement. By requiring ANDA applicants to make scattered revisions throughout their labels lest they induce infringement despite FDA approval of the label otherwise, the panel decision conflicts with this aspect of Hatch–Waxman. Importantly, the decision does not merely create dual tracks of liability that ANDA applicants must navigate; it creates a tension between the laws themselves insofar as one threatens to frustrate the other. Such a tension must be resolved in the process of statutory construction, which the panel decision failed to do. Second, the panel relies on product advertisements and government submissions that a product is “equivalent” to another to find inducement of a method-of-use patent. Such a result is problematic insofar as it denies basic comparative product information to consumers. That problem is especially concerning given that statements of product equivalence are found in a range of industries beyond generic drugs, such as biosimilars, mechanical repair parts, and information and communication technology. En banc review is necessary to reevaluate the panel’s decision insofar as it potentially creates new and unexpected avenues of patent infringement in all of these fields.

We empirically test whether the Department of Justice (DOJ) engages in ethnic prejudice against Chinese in its prosecutorial decisions under the Economic Espionage Act (EEA) of 1996. Using data of EEA cases from November 1996 to June 2021, we conduct Becker's outcome test for evidence of ethnic prejudice. We find that Chinese-named defendants were more likely to be dismissed by trial or acquitted by jury, and were found guilty on fewer counts, and on average received harsher indictments. These results are robust regardless of whether we consider all cases or only arguably ``marginal'' cases. We also find that, for those publicly listed victim firms whose trade secrets were allegedly stolen by the charged defendants, the stock market reaction was much more muted to the news on the case filing date if the charged defendants are of Chinese descent. Our study provides the first systematic evidence that the DOJ's prosecutorial decisions in the application of the EEA may have been tainted by ethnic prejudice against Chinese, including American citizens of Chinese descent. Institutional subscribers to the NBER working paper series, and residents of developing countries may download this paper without additional charge at www.nber.org.

Studies indicate that the “future danger” standard used by juries in Texas when determining whether to sentence a capital offender to death can result in inaccurate predictions. This already difficult to apply standard becomes impossible to use when applying it to capital offenders between the ages of 18-25. Studies released since the Supreme Court decided to no longer sentence juveniles to death show that the brain development of young adults differs little from that of juveniles. Because of their lack of brain maturity, young defendants still maintain a propensity for risky behavior and lack impulse control. This makes it difficult for a jury in a capital case to differentiate between traits indicating that a person is a “future danger” and traits that could potentially improve with age. Some of the most common factors used by prosecutors to show that a defendant is a “future danger” such as criminal history, expert testimony, and character evidence, do not adequately show the threat posed by a young defendant because age cannot be ruled out as a factor in their behavior. If this standard cannot adequately determine which young offenders actually pose a risk to others, then juries are arbitrarily sentencing defendants to death, and therefore violating the Eighth Amendment of the United States Constitution. This Article proposes that because capital offenders already go through a separate trial to determine their punishment, Texas courts should wait until a defendant reaches 25 before they determine whether to execute a young offender. This will make a prosecutor’s use of expert testimony, a defendant’s criminal history, and character evidence more predictable because a jury can assess an individual once their brain has fully developed and consider their behavior in prison. Under this proposal, Texas courts can continue to apply the “future danger” standard but will be able to eliminate the Eighth Amendment concerns that formulate when applying the standard to offenders whose age make a predictable assignment impossible.

Among this year’s takeaways is that, if any social entity wishes to survive, it must—like biological entities—adapt. Yet adaptation requires change—and law is notoriously slow to change. Since a functioning legal system is fundamental to society, however, it is no exaggeration to say that the law’s capacity to adapt will have ramifications that extend far beyond the legal profession. Although the past year’s biological crisis is far from over, its dual political crises—a crisis of democratic legitimacy and an epistemic crisis—pose far more fundamental threats to our collective future than COVID-19 ever did. I recently co-authored a paper with Professor Christopher T. Robertson of the Boston University School of Law, in which we suggest that a large part of the solution to our dual political crises is staring us in the face: The jury. In the 18th century, the Framers recognized that the jury as an institution was crucial for maintaining the public’s faith in democracy, as well as for preserving its faith in the justice system’s ability to discern truth. In our paper, we propose six reforms aimed at making the jury relevant in the 21st century. This essay was published in a newsletter produced by NYU Law School, and attempts to provide a synopsis in order to describe a forthcoming (full-length) law-review article: https://ssrn.com/abstract=3796292

A young defense attorney earns his client, charged in federal court with bank robbery, a jury acquittal. (It’s the attorney’s first.) One would expect the ‘impartial’ judge to thank the jury for its service. Instead, this one harangues both jury and defense attorney (“entailing changes in his complexion from red to purple to dead white”), publicly rails against the verdict, attempts to bar the jurors from service for life, refuses to release the defendant, and prods prosecutors to bring a duplicative state prosecution that would end in conviction for the same crime. To anyone who respects the rule of law—or at the very least to anyone who respects the American jury—this should be deeply troubling. Yet when it took place in a Chicago federal courtroom in December 1953, state prosecutors leapt at the federal judge’s call. And when the appeal of the duplicative state prosecution reached the United States Supreme Court, the defendant lost 5-4. Criminal practitioners know that result as Bartkus v. Illinois, 359 U.S. 121 (1959), a rule of double-jeopardy ‘dual sovereignty’ that the Court reaffirmed in 2019. But next to nobody appreciates how it began in that Chicago federal courtroom. That history comes to life in the unpublished notes of the remarkable defense lawyer. It is a story that underscores just how wrongheaded is the legal rule, and that makes vivid the abuse of judicial power.

The right to a criminal jury trial is a constitutional disappointment. Cases almost never make it to a jury because of plea bargaining. In the few cases that do, the jury is relegated to a narrow factfinding role that denies it normative voice or the ability to serve as a meaningful check on excessive punishment. One simple change could situate the jury where it belongs, at the center of the criminal process. The most important thing juries do in criminal cases is authorize state punishment. But today, when a jury returns a guilty verdict, it authorizes punishment without any idea of what is in store for the defendant. This principle of jury ignorance is a profound mistake. It is unmoored from history and the core function of the jury to authorize punishment. Worse, it exacerbates the criminal legal system’s predilection for excessive severity. This Article offers and defends a proposal to replace ignorant juries with informed ones, by requiring juries to be told of the statutory minimum and maximum punishment in every case before being asked to return a conviction. Informed juries would change the dynamics of criminal justice for the better. In individual cases, punishment information would make juries more careful before convicting and would sometimes lead juries to refuse to convict where punishment would be excessive and unjust. But more importantly, informed juries would provide systemic benefits. Requiring informed juries would set in motion a political feedback loop that would counteract existing incentives for legislators and prosecutors to prefer severity. In addition to being good policy, there are powerful arguments that informed juries deserve to be recognized as part of the constitutional jury-trial right.

In Jones v. Mississippi, the Supreme Court adopted a narrow reading of its Eighth Amendment categorical bar on mandatory juvenile life-without-parole (JLWOP) sentences. Specifically, the Court rejected the Jones’ claim that the Eighth Amendment categorical limit required a sentencing jury or judge make a finding of permanent incorrigibility—that the defendant is beyond hope of rehabilitation—as a prerequisite to imposing a JLWOP sentence. In dicta, the Court suggested that Jones could have made an individual as-applied challenge to his sentence under the Eighth Amendment by claiming that his JLWOP sentence was disproportionate to the crime he committed. While the Court has used a narrow disproportionality standard in non-capital, non-JLWOP cases, it is not clear what standard would apply to individual as-applied Eighth Amendment challenges in capital and JLWOP cases. The Court customarily reviews such cases categorically under a heightened evolving standards of decency standard, which suggests that an individual as-applied challenge would also merit some heightened level of review. Accordingly, this Article argues for the adoption of heightened standards of Eighth Amendment review for individual as-applied proportionality challenges in capital and JLWOP cases. Specifically, the Article advocates for the adoption of an intermediate level of review for JLWOP cases and a strict scrutiny level of review for capital cases. Further, the Article argues for a broadening of the kinds of sentences that receive heightened scrutiny under the Eighth Amendment, both for categorical challenges and for individual as-applied proportionality challenges. Part One of the Article describes the Court’s evolving standards of decency doctrine and Eighth Amendment’s categorical limitations on capital and JLWOP sentences. In Part Two, the Article explains the other side of the application of the Eighth Amendment, the narrow disproportionality test the Court uses to evaluate as-applied challenges in individual non-capital, non-JLWOP cases. Part Three then argues for the adoption of heightened as-applied standards of review in individual capital and JLWOP cases as an application of the evolving standards of decency doctrine. Finally, Part IV sketches some possible extensions of the Eighth Amendment’s evolving standards to other punishments and other classes of defendants.

The Sixth Amendment sentencing doctrine recognizes the right to a jury trial of facts that increase criminal sentences. The doctrine has had only a minimal effect on sentencing because subsequent cases crafting a remedy largely undermined the right. The remedial cases have undermined the Sixth Amendment sentencing right in three notable ways: (1) by repeatedly refusing to recognize that district courts possess an unfettered power to sentence based on nothing more than a policy disagreement; (2) by encouraging appellate court judges to review sentences in a manner that is designed to curtail district court discretion; and (3) by refusing to require district court judges to engage in any independent sentencing analysis. Although the Supreme Court has justified its remedy by reference to historical sentencing practices, these three choices in its remedial cases represent significant departures from historical practice. What is more, the current remedy fails to vindicate the interests protected by the Sixth Amendment—the liberty interests of criminal defendants and democratic input into individual criminal cases. Until and unless the Court revisits its remedial decisions, the Sixth Amendment sentencing right will continue to be little more than a meaningless formalism.

This paper identifies multiple challenges that courts face to achieving fairness in the selection of juries in civil cases. Achieving representative cross-sections of the community in jury venires, and ensuring that our civil juries reflect the community as well, are essential components contributing to the fairness and legitimacy of our civil justice system. Although legal rules and practices attempt to maximize fair and representative juries, the courts encounter substantial difficulty in achieving this important goal. Problems arise in summoning citizens for jury service, in questioning them during voir dire, and in exercising peremptory and for-cause challenges. Systematic empirical research on representativeness and new psychological studies on implicit and unconscious bias raise questions about the efficacy of current jury selection procedures. This paper identifies these problems and the challenges they present for producing representative and fair juries.

Given recent events, the country has begun to recognize the impact of implicit bias on the criminal justice system. Washington and California, for instance, have made progress in creating broader opportunities and diversification within the jury selection system. Oregon, however, has yet to revise its rules for jury selection. This Report examines the connection between implicit bias and the nature and use of peremptory challenges in Oregon’s jury selection process. Accordingly, this Report argues that Oregon must implement a rule that strengthens—or even eliminates the need for—Batson’s rule and limits the impact of bias in our judicial system. In doing so, the Report proposes two solutions to reduce the impact of implicit bias on Oregon's jury selection process. This Report’s first recommendation is to abolish peremptory challenges in criminal proceedings. This would require repealing and replacing Or. Rev. Stat. § 136.230, which authorizes peremptory challenges in criminal prosecutions. The Task Force finds that persistent and ongoing racially motivated constitutional violations will continue unless the peremptory challenge is eliminated. This proposal tracks with the recommendation of U.S. Supreme Court Chief Justice Thurgood Marshall, U.S. Supreme Court Justice Stephen Breyer, and a growing body of scholars. It also follows the lead of England, which abolished the peremptory challenge, through the Criminal Justice Act of 1988, due to its propensity for discriminatory use. For similar reasons, Canada eliminated peremptory challenges in 2019 due to their propensity to exclude minority jury panelists. Batson challenges allow attorneys to articulate supposed reasons for “gut-reactions” and are widely acknowledged to serve as a poor mechanism for dealing with the documented implicit bias that exists within the criminal justice system. As Chief Justice Marshall once said, “Even if all parties approach the Court’s mandate with the best of conscious intentions, that mandate requires them to confront and overcome their own racism on all levels—a challenge I doubt all of them can meet.” Faced with a better understanding of implicit bias, Oregon has the opportunity to reduce the impact of implicit bias in its courts by abolishing the use of peremptory strikes. Alternatively, this Report recommends that Oregon implement a rule that combines aspects of both Washington’s GR-37 and California’s Assembly Bill No. 3070 (“AB 3070”). Such a rule would strengthen Batson challenges, as well as expand the classes of persons protected against discrimination. The hybrid Oregon rule would adopt GR 37(h), which lists presumptively invalid reasons for peremptory challenges that have historically been associated with improper discrimination in jury selection. It would also adopt AB 3070(d)(3), which provides a non-exhaustive list of circumstances a court may consider when ruling on an objection to a peremptory challenge. Such a rule would address some of the problems associated with implicit bias in Oregon’s juror selection process and, in doing so, better ensure that Oregon’s defendants receive a fair trial. At its core, this Report demonstrates that the deficiencies of Batson must be remedied in an effective manner, whether by the elimination of the peremptory challenge or the formulation of a new Oregon rule.

Qualified immunity is awful. But it’s not just the substantive defense that is a problem. Qualified immunity also comes with a slew of special appellate procedures that add difficulty, expense, and delay to civil-rights litigation. Defendants have a right to immediately appeal from the denial of immunity. And the federal courts have steadily expanded the scope and availability of those appeals, further ensuring that civil-rights litigation will not be quick or easy. There is one seeming exception to the ever-expanding right to appeal from the denial of qualified immunity: Johnson v. Jones’s limit on the scope of appeals from the denial of immunity at summary judgment. Johnson holds that, with rare and narrow exceptions, the courts of appeals lack jurisdiction to second guess the factual basis for the immunity denial. They must instead take the district court’s assessment of the summary-judgment record as given and limit themselves to the core qualified-immunity issues. This limit on the scope of appeals was supposed to simplify and streamline litigation. But defendants flout Johnson’s limits with some regularity. They appeal and—without invoking an exception to Johnson—base their arguments on facts different than those that the district court thought a reasonable jury could find. Courts eventually reject these arguments as barred by Johnson. But at that point, the damage has been done. The defendant has created wholly unnecessary work for plaintiffs and delayed any progress in the suit for a year or more. Should qualified immunity stick around in its current or an altered form, it will be imperative to reform the rules governing qualified-immunity appeals. Foreclosing defendants’ abusive, fact-based qualified-immunity appeals will be a central part of that reform. But in the interim, something must be done. And that something is sanctions. I found few instances in which courts of appeals sanctioned defendants for violating Johnson. That needs to change. These appeals are frivolous. And the defendants who take them should be sanctioned.

We investigate whether the gender of judges as well as the gender composition of juries affect individual performance evaluations using information on single diving competitions at three World Championships. Our results indicate that gender per se does not affect individual opinions, while gender composition does. The more judges of the same gender as the athlete are part of a jury, the higher is the rating of both same- and opposite-gender judges. Thus, findings indicate that female (male) athletes benefit from juries who consist of mostly female (male) judges.

The celebrated Jury Theorem of Condorcet (1785) considered an odd size jury in which jurors vote simultaneously after receiving independent signals, correct with the same probability p > 1/2, concerning which of two binary possibilities (maybe innocent or guilty) is true. The reliability of the majority verdict, the probability it is correct goes to 1 as the jury size tends to infinity. Recently, Alpern and Chen (2017a) considered a variation of the Condorcet model in which jurors vote sequentially (rather than simultaneously), with knowledge of prior voting. In addition, jurors are heterogeneous in a quality called ability, which affects the usefulness of their signals for predicting the true possibility. Their notion of ability was abstract, modeling for example eyesight quality for jurors making line calls in tennis. For a jury of size three of given distinct abilities, they found that reliability was order dependent and maximized when jurors vote as follows: first the juror of median ability, then of high ability, then of low ability. This paper makes the notion of ability concrete, with a different signal distribution than Alpern-Chen. A (sealed) card is removed from a deck of m red and m black cards. Each juror draws a number of cards equal to his integer-valued ability and votes for the color of the sealed card, based on his draw and prior voting. We find that the Alpern-Chen (median-high-low) ordering has the highest reliability in most cases, and it generally is also better than simultaneous voting. In the cases where the latter is better, the abilities of the jurors tend to be similar. An analog of this ordering has high reliability for larger juries.

Like Congress and other deliberative bodies, the Supreme Court decides its cases by majority vote. If at least five out of the nine justices come to an agreement, their view prevails. But why is that the case? Majority voting for the Court is not spelled out in the Constitution, a federal statute, or Supreme Court rules. Nor it is obvious that the Court should decide by a majority vote. When political decisions are made, it makes sense to follow the majority. The general will of the public ought to govern. But judicial decisions are not supposed to reflect popular sentiment. Rather, they must respect the rule of law. Thus, on many matters, courts override the preferences of the majority to protect the rights of the minority. Moreover, juries in the United States decide their cases unanimously. As the Supreme Court has recognized, it is important for jury decisions to emerge from a deliberative process that represents the views of the entire community. For the same reasons why it is important for juries to decide cases unanimously, so is it important for the Supreme Court, as well as other appellate courts, to decide cases unanimously. In particular, unanimous decisions would be better decisions, and they would be fairer decisions. They would be better because they would take into account a broader range of relevant perspectives, and they would be fairer because they would reflect the views of both sides of the ideological spectrum. Deciding cases by consensus would not be new for the Supreme Court. For most of its history, it operated under a norm of consensus, with dissenting opinions being written infrequently. This article will make several points, which have gone almost entirely unrecognized to date: (1) Majority voting does not make sense on an appellate court, (2) majority voting on an appellate court violates principles of due process, and (3) unanimous decisions promote the quality and fairness of judicial decision-making by ensuring that decisions reflect a broad range of perspectives. In addition, (4) unanimous decision making reflects the original intent of the Framers, (5) it is consistent with Supreme Court precedent, and (6) the experience of the Supreme Court, juries, and other decision-making bodies indicates that a rule of unanimity can work well.

The author of this Comment surveyed the lyrics of many current hip-hop artists, along with many articles and novels, to find just how popular and prevalent crimes are in in the hip-hop industry. Research led to the finding that the industry of hip-hop has become commercialized. Court transcripts of cases involving various hip-hop artists were used in order to exploit the path prosecutors take when seeking to admit evidence of defendant-authored lyrics. For many years now, prosecutors have had their way when bringing cases against defendants who happen to also be musical artists. Specifically, prosecutors have been able to maneuver their way around the Federal Rules of Evidence by admitting music videos and lyrics written by the defendant into trial. From putting a theoretical cap on the careers of artists in the hip-hop industry, to the belief that rappers actually engage in all the behavior that they write about in their lyrics, this Comment illustrates the dangers and biases that are reinforced when prosecutors are allowed to partake in this underhanded practice. While evidence of the defendant’s conduct is generally inadmissible, when using the evidence to prove something other than character, such as intent, motive, or as a confession, the evidence is often deemed admissible. Throughout my research, it was found that while some prosecutors often attempt to admit the character evidence for a reason such as motive, the underlying outcome is what they are actually after, to present the character of the defendant in a bad light. Once a jury hears lyrics of a defendant detailing how he “kicks in doors” or “catches bodies” or watches a music video in which the defendant plays a role in a murder, the character and reputation of the defendant is tarnished for the remainder of the trial. For reasons explained in this Comment, the author purposes that the determination of admitting lyrics or music videos of the defendant into trial become more in-depth by using lyrical experts and making the inquiry into the realism of the lyrics being offered more critical.

This paper estimates the cost of wrongful convictions and the time spent in prison based on a cross sectional regression analysis of awards and settlements for individuals who were wrongfully convicted and incarcerated for crimes they did not commit. Key variables of interest are number of days spent in prison, days on probation, and demographics of wrongfully convicted and their families. The sample consists of all known individuals (n=514) who successfully sued for damages and received payment through either trial or settlement between 1992 and 2019. Wrongful convictions cause significant tangible and intangible harm to individuals and their families which can be monetized using ex post jury awards. The average “cost” of a wrongful conviction is estimated to be $6.1 million, or $1,334 per day of incarceration. The marginal cost decreases over time: initial incarceration is valued at over $50,000 for the first day; year one is valued at $1.5 million ($4,000/day), while the marginal cost of the 10th year is estimated to be approximately $350,000 ($950/day). Wrongfully convicting and incarcerating one individual is about as costly as the harm caused by a career criminal over their lifetime. Future research might focus on society’s ex ante willingness-to-pay to avoid wrongful convictions. This study provides policymakers with a tool to value increased expenditures for DNA testing, indigent defense counsel, and other innovations designed to reduce wrongful convictions.

If you trade securities on the basis of careful research, then you are a brilliant and shrewd investor. If you trade on the basis of a hot tip from your brother-in-law, an investment banker, then you are a criminal. What if you trade for both reasons? There is no single answer, thanks to a three-way circuit split. Some courts would forgive you according to your lawful trading motives, some would convict you in keeping with your bad motives, and some would hand the issue to the jury. Sometimes called the “awareness/use” debate or the “possession/use” debate, the proper treatment of mixed motive traders has occupied dozens of law review articles over the last thirty years. This Article demonstrates that courts and scholars have so far followed the wrong reasons to the wrong answers. Instead, this Article takes trader motives seriously, drawing on insights and solutions from the broader jurisprudence of mixed motive. This analysis generates a new legal test and demonstrates the test’s superiority.

During its most recent Term, the U.S. Supreme decided an unusually large number of cases of interest to health care and mental health professionals on topics that included abortion, capital punishment, contraception, DACA, HIV prevention, the insanity defense, jury verdicts, Obama Care, police-official immunity, and sex. The degree of interest among health professionals in these issues was evidenced by the large number if amicus curiae briefs filed this Term by health-related organizations. The Court also decided a variety of other issues of general interest and importance, including asylum and immigration, elections, international child custody, gun laws, presidential subpoenas, religious schools, and robocalls. The work of the Court was interrupted by COVID, and near the end of the Term, the Court held some oral arguments by telephone. The Court decided 60 cases, including 53 “signed” merits opinions after oral argument, an unusually low number of cases. Chief Justice Roberts was the “median” justice—in the majority in 12 of the 13 5-4 decisions. The Court will undoubtedly open with only eight justices. On September 18, 2020, Justice Ruth Bader Ginsburg passed away at age 87. She had served on the Court since 1993. She was a gifted lawyer and justice. She also became a cultural icon—“the Notorious RBG.” Her death in the middle of a presidential campaign set off a major political struggle. The cases already selected for the October 2020 Term (beginning October 5), suggest another extraordinary Term ahead.

In civil litigation voir dire (jury selection) has a fundamental impact on jury composition, and by extension, is inextricably entangled with constitutional, statutory, and precedential guarantees regarding an impartial jury of the parties' peers. However, despite its deep influence on jury composition, and by extension trial outcomes, the rules for jury selection vary wildly by jurisdiction, ranging from almost no questioning of jurors at all to extensive questioning that dives into details of the underlying cases. Indeed, selection can take a week in some states and 20 minutes in others. This article involves a first of its kind empirical study that analyzes results from a national sample of over 2,000 mock jurors. The study measures the impact of jury selection across three distinct civil case presentations based on actual cases. It measures existing jury biases, explores how those biases impact juror decisions, considers whether existing methods common to voir dire sufficiently identify those biases, and analyzes whether existing methods for "curing" such biases are effective. It concludes that a) existing biases, many of which are prevalent in the existing jury population, fundamentally impact juror decision making - sometimes in ways that are inappropriate, b) these biases can harm both sides of civil litigation but they skew in favor of civil defendants, c) these biases will often go unidentified under existing rules so that an impartial jury is not assured, d) this problem is not cured by existing interventions, and e) jurors are largely blind to the role bias plays in their decision making. The article concludes with best practices that could be useful to attorneys, legislators, and judges.

While the deadly and highly contagious COVID-19 virus rages across the country, courts are resuming criminal jury trials. In moving forward, judges reference case backlogs, speedy trial rights, and concern for the rights of the accused. Overlooked in this calculus is the importance of juror safety. The Sixth Amendment guarantees “the right to a speedy and public trial, by an impartial jury.” There is no justice without jurors. Even before the COVID-19 pandemic, the justice system sometimes took advantage of juror vulnerability, treating jurors callously, if not rudely, during voir dire by asking them intensely personal questions. During the pandemic, courts have intensified this mistreatment of jurors by exposing them to serious health risks – sometimes to decide cases with minor charges. This exploitation of jurors is irresponsible and short-sighted. By endangering jurors, courts are creating serious due process concerns for the accused and eroding public confidence in an already beleaguered system. If jurors are forced to serve on jury duty without adequate protections, verdicts will be suspect, mistrials will prevail, and many citizens who are fearful or susceptible will fail to appear, creating juries less representative of the community. Concerns about the virus are already resulting in some jurors defying their legal obligation and refusing to appear for service. Recent surveys show that because of COVID-19, three out of four jurors are at least somewhat nervous about attending a trial and that people of color, Democrats, and older Americans are very concerned about spreading and contracting the virus. When jurors are worried and distracted, they may rush to a verdict – any verdict – or fail to appreciate all of the evidence, resulting in wrongful convictions and erroneous acquittals. And, if even one juror tests positive during the trial, a mistrial may be declared to allow trial participants to quarantine. If we are going to require jurors to serve during this dangerous time, we must protect them to protect the criminal justice system itself.

The coronavirus pandemic has uprooted life as we know it No institution is immune As a result of the crisis, trials in every state (jury and bench, criminal a

The right to an impartial jury and the right to serve on a jury are defining aspects of the American legal system. However, this nation has yet to fully make good on these guarantees to African Americans. Black people are routinely underrepresented in jury pools and Black defendants often face juries that fail to reflect the communities in which they are prosecuted. Despite laws prohibiting racial discrimination in jury selection and legislation to improve jury representation, the under-representation of Black people on juries persists. This article draws an unbroken thread from the history of total exclusion of Black people from juries to the contemporary under-representation of Black people in jury pools. Historically, the framers excluded Black people from citizenship, and by extension from serving on juries. Although the Reconstruction Amendments extended citizenship rights to African Americans, racially neutral, but vague juror qualifications enabled state officials to continue excluding Black people from juries well into the Twentieth Century. Today, felony disenfranchisement prevents millions of Americans from being eligible to serve on juries, including a disproportionate number of African Americans. This article argues that policies to increase racial diversity on juries must account for the centuries’ long exclusion of Black people. Such reforms must be large scale and transformational, addressing juror eligibility standards, fair cross section jurisprudence, and policies governing juror summons. Only then can America’s promise to Black people of an impartial jury selected free from racial discrimination be recognized.

This article begins from the realization that there are at least two jury rights: the individual right of the criminal defendant, and the collective right of the community to adjudicate allegedly criminal behavior. Those two rights come into conflict when, for example, the criminal defendant waives his or her jury right or moves for a change of venue, thus robbing the local community of its adjudicatory authority. Thus far, there has been little attention to the conflicts between these two jury rights. My primary aim in this article is to shed light on this important subject. First, I explore the history of the jury through the lens of the two rights. The history of the jury reflects (1) the strong collective jury right backdrop against which the Constitution was drafted, (2) a growing ambivalence towards that collective right between the Constitutional Convention and the Civil War, and then (3) a century-long individual jury right regime. The ascendance of the jury right is associated with the increased empowerment of criminal defendants to waive their jury right or move to transfer to a new venue. In recent decades, legal practitioners—scholars, activists, judges, and Justices—have attempted to resuscitate the collective jury right. In addition to curbing the rights of criminal defendants (and judges) to exclude juries from particular aspects of the adjudicatory process, there has been an increasing effort to empower juries to exercise their collective right through nullification. After exploring the history of the two jury rights, and describing some of the corollaries of each right, I consider some of the possible implications of this analysis for different constitutional theories: Dworkinian moral reading of the law, constitutional pluralism, and originalism. By shedding light on these underexplored jury rights, this article is designed to enable more rigorous analysis by many different breeds of constitutional theorists. Additionally, given the occasional tension between these rights, the analysis in this article will enable legal practitioners to meaningfully debate issues and proposals that implicate one or both of the jury rights.

In a criminal trial, a jury may observe characteristics about the defendant (or victim) and use them to form a belief on the likelihood of guilt. Many evidentiary rules attempt to limit this inference. If jury beliefs are rational, such rules may be counterproductive. Any prohibition on the use of defendant characteristics as a form of evidence will never simultaneously reduce conviction rates for the innocent and increase conviction rates for the guilty. In fact, the opposite will occur under plausible conditions. However, if juries are sufficiently biased in their beliefs about guilt rates within groups of defendants, an evidentiary rule may simultaneously reduce wrongful convictions and increase rightful convictions.

In 1990, the Northwestern University Law Review published The Competency and Responsibility of Jurors in Deciding Cases, 85 Nw. U. L. Rev.190 (1990). The Article conceptualized the jury “as a democratic representative of the community through its verdicts” and argued that because of this democratic role, it should be equipped for success. The Article suggested that a modern active jury model, where jurors under the proper circumstances should be permitted to take notes and ask questions, was preferable to the traditional passive model, particularly when both a cross-section of the community and verdict accuracy were desired jury parameters. That is because there is a natural conflict between the accuracy and cross-section objectives. If the cross-section of the community means jurors would be drawn from all persons in the community, the result would be to attract average citizens who may or may not have solid educational skills. Consequently, the accuracy goal would be easily marginalized, especially under a passive jury model where jurors are expected to remember evidence and arguments up to weeks—even months—at a time before they can discuss it. The argument in favor of the active jury suggested that it provided a way to improve jury efficiency and accuracy. How have those arguments of 1990 weathered the storms of intervening decades? Fairly well, I think. This short Essay doubles down on these claims, arguing that neuroscience discoveries have shown that active, engaged thinkers have better retention and recall and therefore will be better jurors overall. The Essay makes four points about how advancing neuroscience, especially in the digital age, supports active jury functioning.

This paper is a submission to the House of Commons Justice Committee Inquiry into Court Capacity. The purpose of this submission is to describe how technology has been used, especially during the COVID-19 pandemic, to increase court capacity in Australia. The submission identifies some challenges raised by the use of technology, and the responses to those challenges. The submission also covers some measures, not limited to technology, that have been taken to increase court capacity in response to COVID-19. Part I of this submission sets out the range of uses for which technology may be used in the justice system and develops a taxonomy of these uses. Part II provides an overview of the use of technology to increase court capacity in Australia, both before and during the COVID-19 pandemic. Part III identifies challenges that have arisen in connection with open justice, procedural fairness, access to justice and jury trials. We explain how Australian courts have responded to these challenges.

Jury nullification traditionally refers to the jury’s power to deliver a verdict that is deliberately contrary to the law’s clearly dictated outcome. A spirited scholarship is built around this understanding, with some painting nullification as democratic and others as lawless. But this debate is increasingly unmoored from experience. In practice, courts have long formally eliminated the jury’s right to review the law and have established procedures that make it easier to prevent and overturn seemingly nullificatory jury verdicts. Thus, outside of a jury’s verdict acquitting a criminal defendant, jury nullification as traditionally understood does not exist: In no other context is a jury’s verdict inviolate. Jury nullification, then, describes a largely antiquated institutional power; it is a concept (over)ripe for review and reconsideration. This Article proposes a more capacious understanding of jury nullification, conceptualizing it as the routine injection of extralegal considerations into the jury’s deliberations. It contends that all jury verdicts fall upon a nullification spectrum in which extralegal considerations exert greater or lesser influence, regardless of whether the verdict appears reasonable. This spectrum is implicit in the rules and case law but has largely been overlooked in the literature. Making it explicit allows us to reconsider the ways juries exercise their institutional power both to undermine—and bolster—black letter law within the confines of modern procedures. Finally, this model allows us to better understand the continued vitality of the modern jury even as a seemingly side-lined constitutional actor.

In light of the significant impact COVID-19 is having on the operation of the courts, JUSTICE are concerned to ensure that access to justice and fair adjudication can be maintained. In early April 2020, JUSTICE organized two experimental virtual jury trials with the support of AVMI and Corker Binning solicitors. These were designed to explore whether it will be possible for a fair trial to take place when all of the participants were appearing from different physical locations. Volunteers to play the various roles in the trial were recruited from amongst JUSTICE members. This report has been commissioned by JUSTICE with the following objectives: to evaluate how well the technology worked in the virtual trials; to compare the conduct of the trial with traditional face to face hearings; to consider whether there are any benefits to virtual trials; to appraise whether there were any problems that arose which might give cause for a legal challenge; and to evaluate what lessons might be learnt from the two virtual trials conducted to date.

Jurors exercise unique legal power when they are called upon to decide whether to sentence someone to death. The Supreme Court emphasizes the central role of the jury’s moral judgment in making this sentencing decision, noting that it is the jurors who are ‘best able to express the conscience of the community on the ultimate question of life or death.’” Many lower courts nevertheless narrow the range of admissible evidence at the mitigation phase of a capital trial, insisting on a standard of legal relevance that interferes with the jury’s ability to exercise the very moral judgment the Supreme Court has deemed essential. Combining moral theory and original empirical evidence, this Article breaks new ground by linking these to a legal framework that gives full effect to the Supreme Court’s vision of the jury. Aided by a novel dataset of federal capital jury verdict forms, the Article focuses on three types of evidence frequently excluded in state and federal courts: the impact of the defendant’s execution on loved ones, co-participant sentences, and the government’s negligent facilitation of the murder. The data show that jurors consistently find all three forms of evidence highly salient in their mitigation deliberations. Further, two of these—execution impact evidence and co-participant sentences—have a statistically significant correlation with the jurors’ sentencing decision. This Article’s empirical and moral account of juror behavior strongly supports expanding the admissibility of this evidence to reflect the Supreme Court’s evolution in defining the relevance of mitigating evidence as a moral, rather than legalistic, question, appropriately recognizing the jury’s normative role.

This chapter offers a review of scholarship concerning the proof paradoxes along with some critical comments of my own. Particular attention is given to problems of naked statistical evidence and the conjunction paradox, along with some thoughts on the discursive dilemma as applied to jury voting. For the sake of clarity, I try to separate what is known concerning human intuitions concerning these puzzles, how they are treated by existing law (to the extent they are noticed at all), and which results might be best from a normative perspective.