Check Sound

Check Mike

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Today’s Lecture:

The Role of the Jury System

1. Why do we use Juries?

2. Layperson Justice

3. Nullification

4. Structured Conflict

Lecture Organization:

• Class Announcements

• Brief Review

• Class Discussion – Juries?

• Layperson Justice

• Nullification

Time

• Structured Conflict

• Your first quiz

• Your Paper

• Slide Methodology

Class Announcements

1. Lectures are running about 7 days behind on the course page.

-- Technical difficulties (labor is severe)

-- Remember that this is an experiment; it is possible some may not be put up (if I can’t keep up with the work).

2. Steelers are back!

Time

Questions?

Your first quiz

1. “the blue book”

-- Quiz questions will come from lectures and blue text book

2. First quiz will be posted next Monday 17th.

-- will have until Monday 24th to take it

-- Angel Lessons tab

3. Time

–- can’t look up everything;

-- you must study

Your first quiz

4. Multiple Select Questions:

-- you don’t know how many are correct

-- penalized for wrong answers.

-- Example

Time

Slide Methodology

1. There are two theories of slide use

-- “billboard theory” (copy what you see)

-- “support theory” (copy what you hear)

2. You should be listening to me and getting the point in your head.

-- your notes should be like meeting notes.

-- you are not trying to copy the slides

-- get the big points down, then REVIEW the slide for omitted specifics

(ANNOTATE your notes by watching the slide show again)

Slide Methodology

3. One of the comments last year – “your slides go too fast”

-- No they don’t

-- We are not using the billboard theory

-- When I taught without slides, my lecture pace was no different than it is now

-- The slides are not supposed to make the lecture slower

-- All they are to do is keep you from losing attention

(“cognitive drift”)

-- When I taught without slides, I had notes for people to review if they couldn’t understand something

Slide Methodology

-- Students comprehension increased when I switched from notes to slides

-- The POINT: The pace of the lecture will not be slowed down merely because there is a visual accompaniment

(copying what you see is a poor way to learn anyway)

(it is an excuse to turn off your brain and do some sort of menial labor)

-- we are not using the “copy and memorize” model.

-- So make sure you annotate your notes with more detail by reviewing the slides on ANGEL

Time

Questions? Comments?

Review

1. False cases

-- Attorney’s duty to construct his client’s theory of events, regardless of whether he believes it is true

-- legally, within the confines of the adversary system

-- cross examination, finding witnesses, jury persuasion

-- affirmative construction versus just negation.

2. Secret Settlements

-- the process rarely facilitated disclosure of the truth to the public.

3. Two different kinds of adjudicatory structures

(a) integrated authority structure

-- decision maker has all the authority; litigants had no real liberties

(mafia -- totalitarian)

(paternal structures – parent/child relationship)

(b) disintegrated structure (“liberty structure”)

illustration

The King(absolute monarchy)ExecLegJudJudgeLawyersJuries

Separation of powers / checks and balances WITHIN the judiciary itself.

Separation of powers / checks and balances

Review Time

Class Discussion

Why do we use juries?

Class Discussion

Why do we use juries?To have our “peers” judge us?

Peers are not allowed to judge us

Potential Answers

Problems with the answers

“peers” are stricken

To have the “community” judge us?

Sample Size

To eliminate bias?Are all the judges biased? What if we found a fair one?

Question:

Would there have been a better verdict in O.J.’s case if Judge Ito had decided innocence or guilt?

Question:

Why not let the judge, who is a trained professional, decide who

wins the case?

What about having a professional jury?

Example1:

Only former jurists are allowed

Example2:

Only qualified

professionals:

Criminologists

Police officers

Defense lawyers

Crime lab specialists

Former judges

Example3:

Just intelligent

people

Highest SAT scores, etc

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“Layperson Justice”

1. Edith Bunker Story

2. Juries are a layperson workgroup.

3. Basic idea:

-- lay the evidence out piece by piece in front of lay people

-- give them a standard of comfort (“burden of proof”)

-- and see who they agree with

If you can’t convince them, you can’t take life, liberty or property

“Layperson Justice”

4. Reason why we do this:

(A). distrust government monopoly on the power to pronounce guilt with respect to its laws

(If we distrust government to pass laws, it is no wonder we distrust government to declare who has broken them)

(B). Legitimacy:

-- if Edith will not convict you, there must be something wrong?

-- only if Edith says you are guilty should punishment be allowed

-- the ritual of layperson approval is the last hurdle in the system.

“Layperson Justice”

(C) Judge’s Institutional Socialization

-- problem of repetition in judging

-- problem of being an insider

-- studies of jury outcomes (textbook)

-- juries protect slightly more often in criminal cases

-- note that no juries are used in England for civil cases (issues said to be “too complex”) [they award too much money?]

Mention anecdote

5. Workgroup phenomenon

-- dynamic of lay people hearing evidence and solving a puzzle as a workgroup

-- lay people perform better as a workgroup than in isolation

6. Radical alteration of political power

-- the power to declare who wins a prosecution is taken away from the police state

-- It is replaced with an adversarial contest

illustration

The King(absolute monarchy)ExecLegJudJudgeLawyersEdith

“Layperson Justice”

Proof & Theories

Result

Question:

What does the judge have power over?

“Law”

Time

Nullification

1. What is jury nullification?

-- make sure you understand the definition:

-- judging the case autonomously, in violation of the law or facts.

-- render justice no matter what the law says about the behavior in question

2. Very early on, juries had the right to nullify “law”

3. Today, however, they only have the POWER to nullify, not the RIGHT to – and only in criminal cases. (Let me explain)

-- juries are never told that they have the power of nullification

Nullification

-- in fact, they are told the opposite: the judge tells them to follow the law

-- However, there is a loophole: if they don’t, there is nothing anyone can do about it in criminal cases

-- double jeopardy clause

-- in civil cases, clearly wrong verdicts can be corrected by the judge

4. Historical examples of nullification

-- Sedition laws and Peter Zenger.

-- acquitted by NY colonial jury in 1734

Nullification

-- protesters against the Vietnam War

-- draft resisters

-- Russian juries between 1864-1917 nullified revolutionaries who were prosecuted

-- northern abolitionists who hid escaped slaves before the civil war would benefit from jury “inaccuracy”

5. The problem of race in America

-- jurors acquitted whites accused of murdering or raping African Americans.

-- however, African Americans were excluded from jury service, so that might not be a fair point

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Trial as Structured Conflict

1. We began looking at the ritualistic aspect of the trial

-- lot, dunking, combat, endurance, inquisition

2. Now we see that the trial process has a new form

-- adversary system based upon structured conflict

-- but the system does not maximize truth because of its ancillary goals of protecting liberty

(sometimes it misjudges)

3. System also retains some aspects of a social ritual today:

-- chants, costumes, stand/sit, swearing on bibles

--those who prevail in the combat deserve to either “walk” (go free) or be punished.

4. We will continue to investigate to what degree the system can be said to “get at the truth”

5. But it is important for you to understand that the system is built upon structured conflict that gives power to private entities (lawyers, juries) out of a fear of state authoritarians and a concern for liberty.

6. Where we are headed …

illustration

Thematic Question:

Is the system designed to uncover truth?

Technical information: the rules of the game

Explaining procedure – you have to know how it works before you can understand it

Slightly boring

Thematic Question:

Do judges manage trials merely by “following law?”

Trial as Structured Conflict Time

Your Paper

1. Field research paper

-- due at the end of the semester (date in syllabus)

-- no extensions of the deadline

2. Basic requirements

-- go see at least two court hearings (30 minutes per subject). [observation paper]

-- or interview at least 2 members of the profession (approx. 30 minutes each) [interview paper]

3. Write a paper about your experience

Your Paper

-- observation paper: report what you saw

-- interview paper: ask questions and report on what was said

(I will have a list of interview questions for you to ask)

3. We can talk more about this later, but for now

-- Start lining up your subjects!

-- Have them lined up by next month

-- Call the courthouses either here in State College (Bellefonte) or in your home town (Thanksgiving)

-- Or, call lawyers/judges, etc.,

-- Make sure your subjects are lined up in about a month

Questions?

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