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In the practice of jury nullification, a jury votes to acquit a defendant in disregard of the factual evidence, on the grounds that a conviction would result in injustice, either because the law itself is unjust or because its application in the particular case would be unjust. Though the practice is widely condemned by courts, the arguments against jury nullification are surprisingly weak. I argue that, pursuant to the general ethical duty to avoid causing unjust harms to others, jurors are often morally obligated to disregard the law.

Bad actors in patent litigation can face serious consequences. Infringers who are found to “willfully” infringe may be subject to trebled damages. Patentees who assert weak claims in bad faith can be ordered to pay the defendant’s attorneys’ fees. These remedies are of such importance to the patent system today that the Supreme Court reinvigorated both of the respective doctrines in back-to-back landmark decisions in 2014 (Octane Fitness) and 2016 (Halo Electronics). Those decisions have helped district courts more effectively punish and deter misconduct. But the Supreme Court neglected to address a critical part of these remedies—whether and to what extent they should be tried to a jury. Under current law, willfulness can be tried to a jury but bad-faith enforcement cannot. This means that plaintiffs alone can legitimately cast aspersions at defendants that profoundly color the case and the jury’s views of it.It has long been held that willfulness is an issue triable by jury, but courts have reached that conclusion without conducting the proper analysis, which requires delving into the historical treatment of the issue. This article performs that analysis, finding that the Seventh Amendment does not guarantee a right to try willfulness to a jury. Nor does the Seventh Amendment require that questions of bad-faith enforcement be tried to juries. Both issues lack clear historical antecedents or analogues that would suggest juries decided the issues when the Seventh Amendment was ratified. Whether such issues should be tried to juries likely comes out in the negative as well. Juries are ill-equipped to appreciate the proper significance and context of evidence touching on willfulness and bad-faith enforcement, which typically includes matters of claim construction, discovery, legal interpretation, or settlement discussions. And evidence about a party’s culpability can easily bleed into the threshold liability and damages determinations, resulting in unsupportable compromise verdicts on those issues.The best practice would be to try neither issue, but as it is, with willfulness being submitted to juries, a separate question is whether that alone justifies trying bad-faith enforcement to juries as well. This article demonstrates that basic fairness, as well as evidentiary practicalities for how such issues are proven, compels that both issues be tried together, and to the same jury, to ensure that juries hear both sides of the story before they assign moral blame.

The debate surrounding the utility of trial by jury is as relevant as ever. Much criticism of the ability of jurors to carry out their task was brought to the fore following the highly publicised Pryce trial and the comments from Sweeney J indicating a fundamental problem in jurors' understanding of their role. Furthermore, media attention surrounding a steady stream of cases involving juror misconduct has called into question whether jury trial can survive in its current form. This article recognises that although juries are not a normative part of a fair trial, they do have considerable value in enhancing public confidence in the fairness of the criminal process, particularly through the perception of impartiality. If public support is lost, then the value of jury might be lost with it. Whilst the Law Commission is rightly considering how jurors might be more prepared in advance to carry out their role effectively, this article considers the current judicial approach to dealing with the practical issue of juror impropriety once it has occurred. Through looking at a series of trial and appeal cases it can be seen that a framework has developed which seeks to ensure that trials are derailed rarely whilst the impartiality of the jury is safeguarded. It is maintained that in emphasising both actual and apparent impartiality the vital element of public confidence in the existing process can be preserved.

Previous research has suggested that the racial composition of a jury plays a role in the likelihood of conviction of certain defendants. In general, it has been supported that White jury members are more likely to vote to convict Black defendants, while Black jury members are more likely to vote to acquit Black defendants. Prior research has suffered from flaws that could possibly affect these outcomes. For instance, the use of mock juries to examine jury behavior creates artificiality and may not adequately reflect real jury decision-making. Additionally, research on real juries either focuses on certain types of cases (i.e., capital cases) or suffers from problems relating to insufficient or incomplete trial or jury data. As a result, existing jury research has failed to fully capture or explain the factors that are related to jury-decision-making in non-capital felony trials. The current research examined case outcomes in real jury trials of defendants charged with non-capital felonies. In pa...

Section 321 of and Sched. 33 to the Criminal Justice Act 2003 abolished many of the old restrictions on jury service eligibility previously contained in the Juries Act 1974. The result has been to widen significantly the pool of eligible jurors in criminal trials. This article addresses some of the implications of allowing lawyers, including members of the judiciary, to serve on juries, and considers the recent guidance issued to them in order that they perform their role as jurors appropriately. It will also reflect upon the Court of Appeal's recent ruling in R v Abdroikov and Others, which considers many of the pertinent issues, including the issue of jury bias.

Recently, the right to trial by jury has attracted a number of vociferous critics with deep reservations about the use of juries, most of whom are in favour of greatly restricting the use of juries with a minority desiring complete abolition. This article offers a justification for the continued use of jury trials. I shall critically examine the ability of juries to render just verdicts, judicial impartiality, and judicial transparency. My contention is that the judicial system that best satisfies these values is most preferable. Of course, these three values are not the only factors relevant for consideration. Empirical evidence demonstrates that juries foster both democratic participation and public legitimation of legal decisions regarding the most serious cases. Nevertheless, juries are costly and, therefore, economically less efficient than competing modes of trial. I do not argue that all human beings possess an inalienable legal right to be tried by a jury. However, it is my hope that this analysis will make clear what we might gain or lose when we propose jury reforms.

The Court’s recent punitive damage award jurisprudence finds its origin in Lochner v. New York’s guarantee of substantive due process protection for economic rights. This jurisprudence (1) establishes a reasonable review for punitive damage awards and (2) sets the disparity between punitive awards and compensatory awards for economic and noneconomic damage as the one of the starting points for determining whether the punitive award is reasonable. In so doing, the Court explicitly presumes the plaintiff has received full compensation for actual and concrete losses. This presumption is false as it applies to States that have imposed caps against compensatory damage awards in personal injury cases. Most caps were initially intended to reign in “excessive” civil jury verdicts, which had allegedly caused “skyrocketing” medical malpractice insurance premiums and litigation costs. But no cap is triggered by a preliminary finding of excessiveness. Moreover, trial judges are stripped of authority to determine whether application of the cap is just or fair to the (often) severely injury plaintiff. Unlike most works on this subject, this Article investigates the impact of compensatory damage caps on the Court’s reasonable review of punitive damage awards. This Article discusses state laws that mandate fixed or capped damage awards in medical malpractice and other tort cases. This Article also discusses the State Supreme Court split on whether compensatory damages caps encroach upon state civil jury trial rights, which like their federal counterpart find their interpretative basis in the English common law. All States recognize the historic origin of the civil jury trial right. Yet even among States with identical civil jury trial clauses an analysis of State Supreme Court jurisprudence leads to a stalemate about the nature and scope of the right to a civil jury. State Supreme Courts also conflict on whether legislative authority exists to alter a jury’s determination of the value of an injury in common law cases. This Article offers a novel approach to compensatory damage caps by turning to the Sixth Amendment Criminal Jury Trial Clause, which has recently questioned whether legislative authority exists to remove the jury from the sentencing process. This jurisprudence offers three lessons about jury trial rights: first, modern procedures cannot significantly alter certain common law characteristics of the jury trial right; second, mandatory removal of the jury as the primary fact-finder was not authorized in common law cases; and third, a common law jury’s factual determinations were fully enforceable unless exceptional circumstances were presented. This Article concludes by applying these lessons to compensatory damage caps. This Article urges adoption of cap alternatives that encourage individual review upon necessity. Such alternatives should also advance the States’ dual interests to protect both civilly liable defendants from unreasonably high awards and severely injured plaintiffs from unreasonably low awards.

Jury instructions on damage awards are notoriously vague and ambiguous. As a result, awards are sometimes unexpected and seemingly illogical. In this article, the authors argue that jury instructions regarding damages are vague because the law of damages itself is purposefully ambiguous--allowing particularized justice across a variety of different circumstances. The authors review research on comprehension and application of substantive jury instructions related to damages and on procedural variations at trial (e.g., use of preinstruction, bifurcation, blindfolding jurors to various issues, special verdict forms, caps on damages, and instruction revision) that impact the substantive instructions that jurors receive from the judge. They comment on attempts at reforming jury instructions regarding damages and conclude that jurors' decision making on this difficult and emotional issue could be made more predictable by careful reforms at the trial level. I was under the impression we'd have guidelines. I feel we were thrown in a box and had to come out with a number. (Anonymous juror quoted by Vidmar, 1995, p. 243) A juror serving in a North Carolina medical malpractice case expressed this sentiment. She and fellow jurors heard evidence at trial that a 28-year-old plaintiff suffered a peritoneal infection and permanent brain injury after undergoing cesarean surgery, During the trial, the jury was provided with evidence of medical bills resulting from her injury that amounted to several thousands of dollars. The defense attorney argued vehemently that the plaintiff's injuries were not caused by the defendant's actions but then said any award to which the plaintiff was entitled should be small because the hospital and doctors had already paid her medical expenses. In his charge to the jury on damages, the judge informed the group that they should consider the amount of compensation the plaintiff should have as well as an amount for the husband's claim of loss of consortium. He further cautioned them to determine an award based solely on the evidence and instructed them that the amount should be fair, just, and reasonable and not determined by sympathy. The jury deliberated for 3.5 hr, after which they returned a verdict of $850,000 along with strongly worded complaints about the ambiguity involved in their assigned task. Several members of the jury apparently felt that doing their duty "was difficult for all of us."

Acquittals in some recent high-profile criminal cases have led to criticism of the jury system and calls for its modification. The central idea that a jury trial is ‘of one's peers’ is examined in the light of legislation affecting the operation of the jury and the process of jury empanelment. Direct research observation of jury decision-making is prohibited by legislation in the UK and USA and this has led to a legalistic emphasis in this research area, which is regrettable. The ability of the jury decision to reflect social opinion about the nature of right and wrong is emphasized. Rather than the jury being the scapegoat for those who have criticisms of the criminal justice system, the real culprit is seen as simply the end product of the legal process.

Jury selection takes place during voir dire, the pretrial proceeding during which the judge and attorneys question potential jurors with the aim of identifying venire members who are unfit for jury service. Jury “selection” is a bit of a misnomer as attorneys do not choose individuals to serve on the jury; instead jurors who are unable to remain impartial are deselected from jury service. Voir dire proceedings may take different forms depending on the jurisdiction. Many states have adopted very limited voir dire in which the judge poses questions to venire members. In extended voir dire, questioning is conducted by the judge and both attorneys (Jones, 1987). The judge holds discretion over the content and length of questioning. The manner of questioning during voir dire can also vary; although questioning is frequently conducted in open court, in some circumstances the judge may choose to question venirepersons individually (for a discussion of limited vs. extended voir dire, see Johnson & Haney, 1994).

The role of the jury in awarding monetary damages to plaintiffs in a wide range of civil cases has captured the attention of the media, contemporary non-fiction writers, and reform-minded politicians in recent years. Particular attention has been focused on huge jury awards, which has led many commentators to criticize the wisdom of permitting juries to move so much money from one place to another. Although the right to a jury trial, and with it the exercise of broad judicial discretion, is constitutionally based, many reform efforts have moved toward removing juries from cases both as to the subject matter of cases and the amount of money they can award.This article is an attempt to examine what reasonable reforms should be made to jury discretion, particularly with regard to the jury's consideration of punitive damages. My hope is to advance a process that will strike a balance between jury discretion and the valid concerns of those who perceive a need to protect against arbitrary and unfair damages verdicts. Others have also insightfully written in this area, but my approach builds on the structure for controlling jury discretion fashioned by the American Law Institute (“ALI”) in its important work dealing with capital juries.

This paper suggests that jury nullification has evolved into a means by which the jury effectuates a buffer between societal goals and individual action, not only to buffer individuals from government power. This role is legitimate because the jury fulfills it modern role of protection from the government by being this buffer. By thus defining the role of jury nullification, this paper proposes that jury verdicts are inherently 'right.'

Approximately 6 percent of criminal juries hang. But, how many dissenters carry the jury, hang the jury, or conform to the majority's wishes? This article examines the formation of individual verdict preferences, the impact of deliberation, and the role of the dissenter using data from nearly 3,500 jurors who decided felony cases. Jurors were asked: “If it were entirely up to you as a one-person jury, what would your verdict have been in this case?” Over one-third of jurors, privately, would have voted against their jury's decision. Analyses identify the characteristics of jurors who dissent, and distinguish dissenters who hang the jury from dissenters who acquiesce. Deliberation procedures, juror role expectations, their evidentiary views, and their sense of fairness affected the likelihood of dissent. Contrary to previous research, deliberations play a vital role in generating juror consensus and shed new light on the debate over the requirement that juries be unanimous in their verdict.

Much debate and speculation has taken place over whether juries should be allowed to consider evidence concerning the victim in making their capital punishment decision. While an understanding of how capital juries use victim evidence cannot by itself resolve the debate, such an understanding can help better focus the moral and legal issues that are at stake. A review of the Capital Jury Project data from California suggests that capital juries are influenced by victim evidence, at least to the extent that the evidence pertains to the victim's actions leading up to the crime. A randomly chosen victim appears to tilt the jury towards a death sentence, both because juries see a defendant who preys upon a randomly chosen victim as the most dangerous and depraved of criminals, and because jurors are most likely to empathize with a victim who is engaged in everyday activities. By contrast, a victim who is engaged in high-risk or anti-social behavior leading up to the crime is less likely to invoke an empathetic response from the jury or to provoke a sense of outrage, which, in turn, appears to make the jury less inclined to impose a sentence of death. These findings suggest, therefore, that even without the formal admission of Victim Impact Evidence (VIE) at the penalty phase, victim evidence from the guilt phase will play a role in the sentencing decision, an effect that Justice Souter predicted in his Booth concurrence. Further research is needed to determine whether VIE has its own independent effect on the jury's sentencing decision or mainly serves to reinforce the jury's sentencing inclination coming out of the guilt phase. The indication that jurors are likely to empathize with certain victims also highlights the need to determine whether such empathy is limited to the victim's role in the crime (a factor the criminal law has traditionally accepted as legitimate) or extends further to illegitimate factors such as race and socioeconomic status.

The conventional explanation for the pressure for jury reformlies in the increasing belief that the typical jury is incapable of making the difficult decisions called for in many trials. This explanation assumes first, that the “purpose” of juries is to reach accurate verdicts for the litigants and for society, and second, that juries are failing at the task. Both assumptions are misplaced. The “purpose” of the jury system is far more involved than simply efficient decision-making. Moreover, empirical evidence suggests that juries are at least as capable as judges in reaching “accurate” decisions. This empirical evidence strongly suggests that societal distrust of juries cannot be adequately explained by the shortcomings of our jurors. This Article will identify an alternative source for our dissatisfaction with the jury system and investigate the implications of this phenomenon for the current jury reform discussion. This explanation is that dissatisfaction with juries is an outgrowth of the increased diversity in our society and among our jurors--not merely race and gender diversity, but social and economic diversity as well. The modern perception of the jury is a manifestation of this dynamic. As the diversity of our society and its jurors has increased to the point that litigants can expect jurors unlike themselves, the pressure has risen to restrict the power of juries.

Although the Seventh Amendment preserves the right to civil trial in cases arising at common law, some federal courts have held that a case may be too complex for a lay jury to understand, and that submitting such a case to a jury is a denial of due process. Others have held that no litigant otherwise entitled to a jury trial should be denied it because of the difficulty of the case, that jurors are capable of understanding any case, and that trial by jury protects liberty and permits the decision to incorporate community values. The Supreme Court has not yet decided this issue. Its decisions might take into account whether jurors understand the issues in complex cases, whether jury trials cause delay and increased expense, whether the jurors who can serve and who are chosen in lengthy trials are representative, and whether the verdict in such cases is likely to be based on rules of law or inappropriate factors. The empirical research does not yield clear answers to these questions. However, laywers elect jury trials for tactical rather than doctrinal reasons, and jury cases are tried differently from others. All trials, jury or bench, suffer from poor management, and all can be improved by good administration.

To save court time, and thereby reduce court congestion, it has been suggested that the civil jury be abol ished. But the actual amount of time that could be saved is too small to warrant by itself such a move. So basic an herit age of our judicial system should be abolished only if we con sidered this to be an advisable step also in a nondelayed court system. Nor do the various proposals aimed at encouraging voluntary waiver of juries hold much promise. But while the number of jury trials should not be curtailed, much can be done to shorten them, through expeditious impaneling of jurors and especially through greater control of court proceedings by the judge. An innovation which promises considerable savings is to separate liability and damages in the jury trial and to try damages only if the jury finds liability. But whatever means are proposed to reduce court congestion and delay, none should be accepted unless it preserves the best in our legal system.—Ed.