The Seventh Amendment Right to Trial by Jury

1. Right to trial by jury for all suits over $20; no fact determined by jury may be reexamined in court

2. 7th amendment doesn't apply to states - some civil code states

1. Hypo - change $ limit? Word "preserved" in amendment indicates a desire not to change limit. Traditional historical test based on division of courts of law and equity.

2. No jury trials in cases for equitable relief except when intertwined with legal issues.

   1. Teamsters v. Terry (US 1990) p.565

      1. Involved a backpay suit against union for breach of fair representation in a collective bargaining agreement. Since the matter involved both equitable and legal issues (injunctive relief against union to enforce collective bargaining agreement & money damages for backpay), the plaintiff had a 7th amendment right to a jury trial.

      2. Brennan concurring opinion - should get rid of historical test, just give jury trial for all legal issues

      3. Kennedy dissent - fair representation is an equitable action that shouldn't have a jury under the historical test

3. Complex litigation

   1. 7th amendment preserves the right to jury trial for complex litigation, although judge may appoint a "competent" fact finder. In re U.S. Financial Securities Litigation (9th Cir. 1980) p. 587. But see In re Japanese Electronic Products Antitrust Litigation (3rd Cir. 1980) (holding that a case may be so complex that it cannot go to a jury on basis of 5th amendment right to due process). p. 585.

The Phases of a Trial

FRCP 47: Jury selection

1. Historically the jury had intimate knowledge of facts. Modern juries have no knowledge of case.

2. 47(a) – court, attorneys and/or the parties may examine jurors.

3. 47(b) - Each side gets three preemptory challenges to jurors (don't need cause).

4. 47(c) May strike juror for cause (i.e. involvement in case, relative of D, etc).

5. 48(a) - Constitutional minimum of 6 jurors; most trials have 12 out of fairness concerns.

Opening statements

1. Roadmap for presentation of evidence

Presentation of evidence

1. Party with burden of proof goes first - usually plaintiff

2. Federal Rules of Evidence – Apply to US courts (FRE 101), meant to ensure fair trial without unjustifiable expense and delay (FRE 102).

3. Test for relevant evidence – makes a fact of consequence more or less probable (FRE 401). Irrelevant evidence is not admissible (FRE 402).

4. Court may exclude evidence if it is more prejudicial than helpful (FRE 403)

5. Opinion testimony by lay witnesses is limited (FRE 701) - the old rule said that non-experts could only testify as to fact, but the line between fact & opinion is slippery.

6. Hearsay is not admissible (FRE 802). It is an out of court statement sought to be used to prove the truth of the matter stated.

   1. Can only be used to impeach witnesses or in limited exceptions, like when it was an excited utterance (FRE 803), when speaker was in belief of imminent death (804(b)(2)), or when the statement is against the speaker's interest (804(b)(3)). See also FRE 801-807.

7. Privilege (FRE Rule 501)

   1. Spousal privilege

      1. some jurisdictions used to not let a wife testify for her husband because he might force her to lie; today you can generally choose to waive privilege.

      2. Is gay marriage protected by spousal privilege in states that don't have it? See full faith and credit clause in constitution. U.S. Const. art. IV, §1.

   2. Also have priest-penitent privilege, etc.

Closing arguments

1. Limited to fair comment on evidence

Jury instructions – Rules 47-49, 51.

1. Judge instructs jury on how to apply law to facts & substantive rules that apply. Rule 49(a)(2).

2. Parties may request jury instructions. Rule 51(a). Court must inform...

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