Trial

Jury

1. Jury selection: Juries must be selected at random from “a fair cross section of the community in the district or division wherein the court convenes.” Juries cannot be excluded on the basis of “race, color, religion, sex, national origin, or economic status”

   1. Challenges for cause: the lawyers explain their basis for thinking the juror unsuitable for this case

   2. Preemptory challenges: lawyers need no supply a reason. However, it cannot be based on race or gender.

      1. To show that preemptory challenges are based on race or gender, a party must make an initial showing that allows a court to infer a pattern based on race or gender; that showing then requires the party exercising the peremptory challenge to offer a satisfactory reason, one not based on gender or race.

   3. Arguments for peremptory challenges:

      1. Peremptory challenge is a chance for both parties to engage in jury selection, allowing both the defendant and the prosecution to get rid of potentially biased jurors. If both parties have contributed in the configuration of the jury, they will find its verdict more acceptable.

      2. Privacy issues: sometimes jurors have private issues that render them biased. Peremptory challenge can allow the lawyers to strike a juror without letting the judge know the reason, thus protecting the juror’s privacy. For example, if a juror has HIV and the case is about HIV discrimination. The juror may be sympathetic towards the P who was fired because of he is HIV positive. D’s lawyer found out that the juror has HIV, and can use peremptory challenge to strike the juror, instead of challenge for cause, so that the judge will not know the juror’s private health conditions.

      3. Peremptory challenges give lawyers a second change to strike jurors who may be offended by the lawyer’s initial attempt to strike for cause: if a judge strike a juror for cause and the strike was denied by the judge, the juror may be offended by the lawyer and become biased against the lawyer. In this case, the lawyer can use peremptory challenge to strike this juror.

   4. Arguments against peremptory challenges:

      1. Citizens have a right to jury, courts should not allow denial of this right with no good reason

      2. Peremptory challenges are sometimes based upon stereotypes. The whole notion that lawyers may apply their own stereotypes to excuse perfectly impartial jurors, as long as those stereotypes do not touch on race, gender and ethnicity, infects the jury system with a profoundly trivializing gamesmanship.

      3. Peremptory challenges are redundant because we already have challenges for cause.

      4. They will make the jury selection process longer and less efficient.

      5. The inquiry itself drives biased lawyers to fabricate non-discriminatory pretexts. It is often difficult, even for the challenging lawyers themselves, let alone trial judges, to know whether some deeply lurking impermissible animus plays a role in striking jurors. Also, proving beyond doubt that a juror was struck purely for racial reasons is extremely difficult, so many lawyers who have done so may get away with it.

   5. A jury lied in voir dire: To obtain a new trial, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause.

2. Right to jury trial: 7th amendment: in suits at common law, the right of trial by jury shall be preserved. See p. 671 exercise 1.

   1. If the remedy is monetary: the right of jury trial is preserved

   2. If the remedy is ejectment (to recover land unlawfully occupied) or replevin (to recover for unlawful takings of personal property).

   3. For other remedies the right of jury trial is not preserved

   4. For new claims, courts should look at the remedy sought in the case, and make analogy to existing claims.

   5. Mixed claims: If a case blends equitable and legal claims, and there are overlapping factual issues, the judge should defer to the jury.

   6. Congress:

      1. Can expand the right of jury trial, but cannot limit it.

      2. Congress can create new claims and move it to administrative agency.

      3. Congress can’t limit jury access only when the trial is in courts.

3. Should we have a jury system?

   1. Yes: most people are serious about rendering a verdict; research shows that for most of the time jurors understand the law correctly and renders the right verdict; jury serves as a check on the judge; jury trial is a way to deliver people’s message (e.g. slavery; prohibition period); the alternatives to the jury trial, a judge, have bias as well, and there are also incompetent judges

   2. No: costs associated with having a jury trial is high; jurors are sometimes incompetent; jurors sometimes have prejudice; jury is not accountable for wrong verdicts; jurors may not be representative: people with means (e.g. having a lawyer friend) know how to get out of a jury selection; jury trials result in inconsistent application of the law

Recusals

1. 28 USC 144 (recusal by motion of a party): Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

2. 28 USC 455 (a): Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

3. 28 USC 455 (b) He shall also disqualify himself in the following circumstances:

   1. (1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

   2. (2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer...

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