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    Jury Research Blog

    Trial Judges: Can We Talk?!—Supreme Court Case of Foster v. Chatman

    Posted by Jeffrey T. Frederick, Ph.D. on Mon, Jun 13, 2016 @ 16:06 PM

    June 13, 2016

    Jeffrey T. Frederick, Ph.D.

         I usually address my posts to attorneys with suggestions concerning jury issues.  But today, I want to address trial judges (and attorneys) in light of the recent decision in Foster v. Chatman, 136 S. Ct. 290 (2016), concerning the discriminatory use of peremptory challenges.

    Foster v. Chatman: Poster Child for Discriminatory Purpose

         First, some basic facts. Timothy Foster, a black man, was convicted of capital murder in Georgia in 1987, months after the landmark Batson v. Kentucky, 476 U.S. 79 (1986), decision banning discriminatory use of peremptory challenges based on race.  While five blacks were qualified during voir dire, none made it on the jury.  One black potential juror, Shirley Powell, was removed for cause the day peremptories were to be exercised (she came in to court and notified the court that she had a close friend who was related to Foster). The prosecutor used four of its challenges to remove the remaining black jurors. The defense raised a Batson challenge setting in motion the three-step Batson procedure: (a) the defense presents a prima facie case that a peremptory challenge had been exercised based on race; (b) the prosecution must provide “race neutral” explanations for its disputed exercise of peremptory challenges; and (c) the judge decides whether the defendant has shown purposeful discrimination.  It was this last step that was at issue in this case. 

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    Topics: jury research, jury selection, Jeff Frederick, voir dire, peremptory challenge, Batson v. Kentucky, Foster v. Chatman

    Member (Jury) Selection in General Courts Martial

    Posted by Gale Burns on Mon, Sep 9, 2013 @ 16:09 PM

    September 9, 2013

    Jeffrey T. Frederick, Ph.D.

    I was recently asked by the American Society of Trial Consultants (ASTC) to guest post on their
    "Deliberations" blog and here is the result.

    IN A WORLD . . .

    where the convening authority selects the entire pool of potential panel members . . .

    where the defense and prosecution each have potentially only one peremptory challenge, even in a death penalty case . . .

    where challenges for cause are the only realistic method for removing potentially biased members . . .

    No this is not the recent movie by the same name, IN A WORLD . . . , that opened in movie theaters last month. This is the world of general courts martial under the Uniform Code of Military Justice (UCMJ). . . . For the remainder of the post, click here.

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    Topics: military jury, convening authority, random selection, deliberations, American Society of Trial Consultants, voir dire in military trials, military court, Jeff Frederick, voir dire, courts-martial, UCMJ, liberal grant mandate, military courts, member selection, peremptory challenge, challenge for cause

    See You on the Internet—Uh, I Mean, in Court: On Litigation-Based Websites

    Posted by Gale Burns on Mon, Nov 5, 2012 @ 15:11 PM

     November 5, 2012

    Jeffrey T. Frederick, Ph.D.

    A relatively new strategy by litigants is to take their cases to the public, not through press conferences but through establishing a voice on the Internet. True, this is not new. Martha Stewart and Michael Jackson had websites that supported their legal cases, and former Chicago Governor Rob Blagoivich had a Facebook page. Discussions of these activities can be found in Chapter 8, Jurors and the Internet, of my book.

    Several interesting developments have occurred since the early days of litigant PR websites. First, getting the message out is not as cost-prohibitive as in the early years. It is relatively inexpensive to develop a basic website, and it costs no money to establish a Facebook, MySpace, Google+, or Twitter account. For example, lawyers for George Zimmerman (the person charged in the death of Trayvon Martin) have established websites for information and fundraising, along with a Twitter account for updates and responses to activities concerning the case. While a Facebook page was established by the defense, it was later suspended because of the vitriolic comments posted by supporters and opponents of Mr. Zimmerman. In an interesting twist on the concept of litigant websites, the defendant (Reeco Richardson) in a stolen vehicle case has a website in his subsequent civil lawsuit filed against Maryland state and local officials for the alleged ramming by a police cruiser of a stolen vehicle in which he was a passenger. Attorneys for the defendant asserted that their website was in response to postings of case information on the Montgomery County Police Department website.

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    Topics: jury research, Internet litigant websites, less cost-prohibitive, more detailed information, possible juror tainting, Jeff Frederick

    Facebook and Jury Tampering: A New Threat Posed by Social Networking Sites (SNS) to Jury Integrity

    Posted by Gale Burns on Mon, Aug 8, 2011 @ 13:08 PM

    August 8, 2011

    Jeffrey T. Frederick, Jury Research Services

    Recently, the judge in a criminal trial dismissed a jury prior to impaneling them after a friend of the defendant allegedly contacted one of the jurors through Facebook. The juror had reported this contact to the clerk of court. Review of the defendant's recorded telephone conversations from jail revealed the defendant, his girlfriend, and his mother discussing the names of three jurors, one name being that of the juror in question, with instructions from the defendant to contact them. The judge immediately dismissed the jury and revoked the bond of the defendant. An investigation into jury tampering is ongoing.

    In March 2011, a former councilman in South Carolina was convicted of jury tampering when he e-mailed grand jurors. He had e-mailed the foreman of the grand jury requesting that the grand jury look into cases of corruption in government.

    Much has been made of the impact of the Internet on jurors and the jury system. However, little attention has been paid to the threat posed by individuals contacting potential and trial jurors with the intent of influencing their verdict OR for that matter, jurors contacting the parties themselves, as was the case for a Manchester, England, where a juror received an eight-month jail sentence for contempt for both engaging in Internet research and having online conversations with an acquitted defendant through Facebook. Unfortunately for the juror, she was still deliberating on the fates of the remaining three codefendants at the time.

    Of course, jury tampering is not a new phenomenon. While the situation described at the start of this blog may not be the first instance of attempted jury tampering via Facebook or other social networking media, it serves as a warning of a new potential threat to jury trials. According to a Pew research study, 79% of adult Americans are using the Internet, with 59% of these using social networking sites ("SNS"), including Facebook, MySpace, LinkedIn, and twitter.  These SNS serve as a direct channel to jurors serving in our courts today.

    Many courts today are revising jury instructions to address Internet issues. However, these instructions, justifiably, tend to focus on jurors seeking information on the Internet. It now appears that additional attention should be directed to instructing jurors early on about (a) not accepting "friend" requests before or during the trial by unrecognized inquirers; (b) reporting to the court all contacts or attempted contacts received from unrecognized inquirers (and recognized inquirers if relevant to the trial); and (c) admonishing jurors against contacting the party(ies) or witness(es) before or during the trial. These instructions should be added to the Internet instructions that address issues of communications concerning the case and the seeking of case-related information or other related Internet searching activity.

    As I point out in my book on voir dire and jury selection, Internet-related instructions should be treated separately from other media-related instructions and should include a discussion of the consequences for the juror and the trial that could arise from such activities.

    Recently, the juror questionnaire used in the perjury trial of baseball slugger Barry Bonds included instructions concerning the Internet and a statement of the consequences for such violations with an affirmation that the juror understood the court's order. This practice should be refined and expanded.

    Two remedies that I think are not warranted at this time are (a) having jurors accept a friend request from the court, and (b) using anonymous juries. The first option is more invasive and premature at this time.  The second option, using anonymous juries, was first fully implemented in 1977 and has received greater attention as of late. However, this remedy introduces the potentially negative effect of the influence of jurors rendering decisions under conditions of anonymity that are not warranted without significant concerns over juror safety, harassment, or intimidation. One study, and the only one found in a search on the topic, found that anonymous student-juries were more likely to convict and to use the most extreme sanction upon conviction than were nonanonymous juries.

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    Topics: jury research, Internet, jury selection, jury tampering, social media, social networking sites, Facebook, juror questionnaires, jury instructions, "friend" requests, communication with party or witness, Jeff Frederick, voir dire

    Interview with the ABA re Jeff Frederick's New Jury Selection Book

    Posted by Al Mirmelstein on Thu, Mar 31, 2011 @ 09:03 AM

    The voir dire and jury selection process is one of the most challenging aspects of a jury trial, says Jeffrey T. Frederick, director of the Jury Research Services Division of the National Legal Research Group. “Having a list of questions to ask is only a starting point,” he explains in his new ABA-published book, Mastering Voir Dire and Jury Selection, Third Edition. “Conducting effective voir dire and jury selection requires developing strategies that secure the necessary information and adapt to the unique circumstances that lawyers face in their trial jurisdictions.” To help lawyers develop those strategies, Frederick recently met with YourABA, sharing advice from his 37 years of providing jury research services.

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    Topics: legal research, jury research, national legal research group, Jeff Frederick

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