>>> Item number 354, dated 93/12/05 15:41:49 -- ALL
Date: Sun, 5 Dec 1993 15:41:49 -0600 Reply-To: Legal History discussion list <H-LAW@UICVM.BITNET> Sender: Legal History discussion list <H-LAW@UICVM.BITNET> From: cfcrw@uxa.ecn.bgu.edu Subject: Juror Bias
The following appeared in:
Political Science Discussion Group <polcan@VM1.YorkU.CA>
An article in the Globe and Mail of Dec. 2 (A5) described the problem of the spread of information about the Homolka trial through computer networks (such as this one). I invite comments about this issue.
Here are my own views. Contrary to the rather shallow editorials that the G&M has been running on this issue, there is plenty of evidence that information given to potential jurors about a case prior to the hearing will cause bias, consciously or unconsciously. It is not surprising that Teale's lawyer wants the Homolka record made public. It gives Teale the opportunity (either after firing the current lawyer or after changing instructions to him) to challenge more potential jurors, and eventually to appeal based on the claim of an unfair trial. The only thoughtful piece I've seen in the G&M on this issue is John Barber's column of Dec. 2 (A12) in which he weighs the right to a fair trial against the rather juvenile concept of freedom of speech portrayed by Buffalo disc jockey Darren McKee.
On the other hand, given the current state of communications technology, a publication ban on a trial is almost impossible to enforce. However, I've never been convinced that a jury trial is any more fair than a trial by a professional judge alone, especially given elaborate appeal procedures. My research indicates that jury trials are used by lawyers to delay, or to try to force a settlement because of their prohibitive cost in civil cases. Few jurors are treated with much respect by the legal system, and the great majority complete their duty with a diminished respect for the law. They are pawns in lawyers' games. The time has come to consider either abolishing jury trials, or replacing the current juries (that are not really randomly chosen and are carefully screened to promote the type of bias favourable to counsel involved) with professional jurors who would have sufficient training so that we wouldn't have to worry about publication bans.
>>> Item number 357, dated 93/12/07 16:36:29 -- ALL
Date: Tue, 7 Dec 1993 16:36:29 -0600
Reply-To: Legal History discussion list <H-LAW@UICVM.BITNET>
Sender: Legal History discussion list <H-LAW@UICVM.BITNET>
From: cfcrw@uxa.ecn.bgu.edu
Subject: Re: Juror Bias
The letter to the Globe is spot on. Had Rap Brown been a lawyer,
he might have noted that jury nullification is as American as apple pie.
>>> Item number 359, dated 93/12/07 17:20:50 -- ALL
Date: Tue, 7 Dec 1993 17:20:50 -0600 Reply-To: Legal History discussion list <H-LAW@UICVM.BITNET> Sender: Legal History discussion list <H-LAW@UICVM.BITNET> From: cfcrw@uxa.ecn.bgu.edu Subject: Juror Bias
[From POLCAN: Canadian Political Science Discussion Group]
On Sat Dec 4 1993, Ian Greene wrote about the Homolka case.
I disagree with almost every aspect of Prof. Greene's argument, and as a
result I have been disturbed by the judiciary's handling of the entire
lka case.
The guarantee that criminal trials are conducted in the open, so that any
member of the public can attend and so that any member of the press, no
matter his/her motivation, can report on the proceedings, is one of the
most important guarantees that the rights of the defendent are
protected and that the criminal process is fair.
Now, there may be evidence that potential jurors are influenced by
information they get about a case before they are called for service.
And that influence may in turn be "bias". I have never read the studies
that contain this evidence and cannot therefore comment on their
methods. But given the numerous studies showing how little citizens
actually get from the media about politics and how little they retain
about it, I think it's highly doubtful that even 25% of the population
in southern Ontario knows who Karla Homolka is, let alone the details
of her case and that of her husband. In any case, if the publicity
ban had not been imposed, I'm sure that less than 15% of the population
would have been familiar with the case. Surely, then, reforms to the
juror-selection process would be a better way than publication bans to
handle this "bias".
As for abolishing jury trials, first of all that would require a constitutional amendment, of course. Such an amendment would be difficult to obtain, to say the least. It would also be a bad idea. The amateur juror provides one more check and balance in a system that, after all, determines very fundamental questions about the liberty of individual Canadians. Lawyers may see them as pawns to be manipulated, but they are also rational human beings. Unless we want to argue that legal training somehow increases a rational human being's ability to discern fact from fiction, fact from conjecture, the jury system is an important guarantee that the judicial system does not become the exclusive preserve of professionals like lawyers and judges.
--
Ian Brodie
Department of Political Science
The University of Calgary (403) 220-5920 Calgary, Alberta, Canada T2N 1N4 FAX 282-4773
New Altitudes, Learned Societies '94, at the University of Calgary
>>> Item number 366, dated 93/12/10 15:03:14 -- ALL
Date: Fri, 10 Dec 1993 15:03:14 -0600 Reply-To: Legal History discussion list <H-LAW@UICVM.BITNET> Sender: Legal History discussion list <H-LAW@UICVM.BITNET> From: cfcrw@uxa.ecn.bgu.edu Subject: Re: Juror Bias
On Tue, 7 Dec 1993 cfcrw%uxa.ecn.bgu.edu@WUVMD.wustl.edu wrote:
> The letter to the Globe is spot on. Had Rap Brown been a lawyer,
> he might have noted that jury nullification is as American as apple
> pie.
>
> fbuckley@gmuvax.gmu.edu
>
Surely we are being too restrictive to speak only of American apple
pie! Jury nullification has been a longstanding tradition for English
juries as well, going as far back as the seventeenth century, if not
earlier. (See Thomas Green's excellent Verdict According to
Conscience.) Does anyone know of an appropriate Anglo-American simile?
--Robert Tripp, rktripp@artsci.wustl.edu.
>>> Item number 367, dated 93/12/12 14:26:01 -- ALL
Date: Sun, 12 Dec 1993 14:26:01 -0600
Reply-To: Legal History discussion list <H-LAW@UICVM.BITNET>
Sender: Legal History discussion list <H-LAW@UICVM.BITNET>
From: cfcrw@uxa.ecn.bgu.edu
Subject: Re: Juror Bias
Tripp is pleased to be facetious. In general, the plea that "Every-
one is doing it" has not been particularly successful, at least with non-American juries. My point was simply that Americans might not be suprised at contemporary jury nullification, given a history that, more than almost any country one can think of, celebrates nullification. fbuckley@gmuvax.gmu.edu
>>> Item number 373, dated 93/12/13 09:39:59 -- ALL
Date: Mon, 13 Dec 1993 09:39:59 -0600 Reply-To: Legal History discussion list <H-LAW@UICVM.BITNET> Sender: Legal History discussion list <H-LAW@UICVM.BITNET> From: cfcrw@uxa.ecn.bgu.edu Subject: Re: Juror Bias
Actually, I was under the impression that nullification (so-called) was far more common in England than in the USA. For example, have there not been several proscutions in England for publishing state secrets which, despite clear evidence that this was done, resulted in jury verdicts of not-guilty? I remember hearing a commentator on the BBC a couple of years ago note that American Juries almost always will convict even when they believe that the law is not good, wheras English juries are far more willing to in effect, repudiate a law they do not like by nullification. Brendan McManus
>>> Item number 374, dated 93/12/13 18:00:10 -- ALL
Date: Mon, 13 Dec 1993 18:00:10 -0600
Reply-To: Legal History discussion list <H-LAW@UICVM.BITNET>
Sender: Legal History discussion list <H-LAW@UICVM.BITNET>
From: cfcrw@uxa.ecn.bgu.edu
Subject: Juror Bias
Brendan McManus is quite right to point out that the
extent to which juries do nulify laws is an empirical matter. But then how to test a hypothesis, given selection bias problems? We should expect prosecutors to be aware of the problem, and to exercise their discretion in favor of abandoning a prosecution they believe will be unsuccessful. Does anyone know of any empirical studies on point?
In an empirical vacuum, I should still expect that nullification is less a problem in Canada than the U.S., if only because Crowns have far broader rights to appeal perverse jury findings in Canada. That apart, I note that procedural rules stack the deck more heavily in favor of Canadian Crowns than U.S. prosecutors. What got us started in all of this was a quote from a Globe & Mail leader on the Homolka case. But the point of the gag order is that defense attorneys in Canada have fewer peremptories, and jurors are thus more likely to be acquainted with the case. Again, the rule advantages the Crown. Finally, descending to the anecdotal, I cannot recall any examples of the kind of jury nullification one saw in America ca. 1770 or sees today, unless it be perverse convictions, as in l'Affaire Coffin. Perhaps people like Marty Lipset are right on social norms.
rightly see profound differences
in social norms between the two countries.
On Mon, 13 Dec 1993 cfcrw@UXA.ECN.BGU.EDU wrote:
>
> Actually, I was under the impression that nullification (so-called)
> was far more common in England than in the USA. For example, have there
> not been several proscutions in England for publishing state secrets which,
> despite clear evidence that this was done, resulted in jury verdicts of
> not-guilty? I remember hearing a commentator on the BBC a couple of years ago
> note that American Juries almost always will convict even when they believe
> that the law is not good, wheras English juries are far more willing to
> in effect, repudiate a law they do not like by nullification.
> Brendan McManus
>
The picture is a little more patchy than that. The spy case you are thinking of is Reg. v. Ponting (1976), where the jury did indeed acquit after what amounted to an admission of guilt coupled with the plea that defendant was revealing that lies had been told to Parliament. This has certainly inhibited subsequent prosecutions; ex-spies who include secrets in their memoirs tend to be sued for the profit made rather than prosecuted.
Other than that, however, I can't think of any other modern examples -- can anyone else ?
What *is* becoming increasingly apparent is jury distrust of police evidence. For decades, it was an open secret that juries in the East End of London simply would not convict if the only evidence was from the police. In the light of recent scandals, there is now a certain degree of scepticism across the entire country, if not quite at the East End level yet.
Steve Hedley, Faculty of Law, University of Cambridge
>>> Item number 375, dated 93/12/14 12:46:09 -- ALL
Date: Tue, 14 Dec 1993 12:46:09 -0600 Reply-To: Legal History discussion list <H-LAW@UICVM.BITNET> Sender: Legal History discussion list <H-LAW@UICVM.BITNET> From: cfcrw@uxa.ecn.bgu.edu Subject: Re: Juror Bias
This message was originally submitted by JFRBC@CUNYVM to the H-LAW.
Juries in Brooklyn NY won't convict on police evidence either. Our "Crown Heig hts" acquittal was a recent example of this, though, as a former Assistant Dist rict Attorney, Isaw it in much more mundane cases as well. I particularly reme mber a drunk driving/accident case inwhich the driver refused to take a blood t est. Three cops testified that his behavior indicated intoxication, but the ju ry still acquitted.
>>> Item number 381, dated 93/12/15 18:51:47 -- ALL
Date: Wed, 15 Dec 1993 18:51:47 -0600 Reply-To: Legal History discussion list <H-LAW@UICVM.BITNET> Sender: Legal History discussion list <H-LAW@UICVM.BITNET> From: cfcrw@uxa.ecn.bgu.edu Subject: Re: Juror Bias
I'm surprised that no one remembers Dr. Morgenthaler's acquittal as an example of jury nullification in Canada.
There is little empirical evidence on the incidence of jury nullification either in the U.S. or Canada. The standard citation, which by now is dated but is the best we have, is Kalven and Zeisel's "American Jury" study in the 1950s. They found that the jury and judge disagreed in about one out of five cases with the jury generally more lenient. Even here, however, there is a question of how one defines the phenomenon since leniency is not synonymous with nullification.
PBS distributes perhaps the only tape of actual jury deliberations in a criminal cases called "Inside the Jury" which happens to an instance of jury nullification. A defendant is acquitted of gun possession because the jurors feel a conviction would be unjust given the circumstances of the case.
Roy B. Flemming
Department of Political Science
Texas A&M University
College Station, Texas, USA 77843
OFF: (409) 845 5623
FAX: (409) 847 8924
INT: e339rf@lewie.tamu.edu
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