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Most United States courts require the jury to elect their own foreperson, a role that has amplified influence on the jury's verdict. In practice, the election process is done quickly and without discussion. As a result, the foreperson is demographically biased toward older men of high socioeconomic status. This paper uses psychological literature to argue that the current selection system produces suboptimal forepersons. Instead, it proposes a system of random selection, including an opt-out procedure for those who do not feel capable of holding the position.

Judges presiding over jury trials are tasked with imposing sentence on convicted defendants, even though they play little role in deciding guilt. When judges agree with the jury’s verdict, this arrangement is unproblematic; when they do not, judges are placed in a challenging predicament. Although they may take the extraordinary step of overriding the jury’s decision, this is a rare option reserved for highly exceptional circumstances. Based on interviews with 41 US judges, this study investigates whether judges, consciously or otherwise, employ more subtle means of correcting perceived guilt-phase injustices by calibrating sentence severity according to their confidence in the jury’s verdict. Judges’ rationales for doing so largely revolve around maintaining peace of mind and producing just outcomes.

Objectives One of the legal safeguards designed to educate jurors about eyewitness evidence is judicial instructions. However, their effectiveness in sensitizing jurors to eyewitness accuracy and suggestive identification procedures captured on video is unknown. Methods Participants ( N = 232) watched the video-recorded identification and testimony of one of 16 genuine eyewitnesses. We varied the suggestiveness of the identification procedure, whether they saw an accurate or inaccurate identification, and whether or not they received Victorian judicial instructions about eyewitness evidence. Results Participants were sensitive to eyewitness accuracy when identification procedures were non-suggestive, with participants more likely to believe accurate eyewitnesses than inaccurate eyewitnesses. This sensitivity to identification accuracy was impaired when participants saw an identification made under suggestive circumstances. Judicial instructions did not significantly affect participants’ judgments with one exception: when they led to confusion. Participants who saw an identification obtained under suggestive circumstances were more willing to believe the eyewitness when they read the judicial instructions compared to those in the control condition. Conclusions Suggestive identification procedures impaired participants’ sensitivity to eyewitness accuracy. The Victorian judicial instructions did not improve participants’ sensitivity. This is the first test of judicial instructions that used Bayesian analyses to establish the absence of an effect. Thus, judicial instructions might not improve sensitivity to eyewitness accuracy or be an effective remedy for the damaging effects of suggestive identification procedures.

This Note examines, through an experimental design, whether juror biases against black defendants are explained by aversive racism theory or social identity theory and whether procedural justice can be used to decrease biases. The Note also examines whether the timing of debiasing jury instructions affects judgments of guilt. The experiment finds that preevidence instructions result in lower judgments of guilt than post-evidence instructions. In addition, aversive racism theory, but not social identity theory or procedural justice, explains guilt judgments. The experiment has implications for both the content and timing of jury instructions in trials.

For the last half-century, Supreme Court doctrine has required that capital jurors consider facts and characteristics particular to individual defendants when determining their sentences. While liberal justices have long touted this individualized sentencing requirement as a safeguard against unfair death sentences, in practice the results have been disappointing. The expansive discretion that the requirement confers on overwhelmingly White juries has resulted in outcomes that are just as arbitrary and racially discriminatory as those that existed in the years before the temporary abolition of the death penalty in Furman v Georgia. After decades of attempting to eliminate the requirement, conservative justices have recently employed a new tactic: extinction through expansion. By relying on the individualized sentencing requirement to discourage jury instructions that enhance consideration of mitigation evidence, these justices have stretched the doctrine well beyond its intended meaning. This broad interpretation renders individualized sentencing ephemeral to the point of insignificance, ensuring that the problems with capital sentencing will continue in the years to come. While an examination of individualized sentencing is overdue, the solution is not to jettison the requirement, but instead to permit states to channel juror discretion. This Article is the first to contend that states may achieve the goals of individualized sentencing, not by expanding juror discretion to consider mitigation evidence, but, counterintuitively, by narrowing it. It proposes that states employ specific jury instructions that: (1) require jurors to consider certain types of evidence as legally mitigating; (2) address the historically racist application of the death penalty; and (3) permit unfettered discretion solely in the direction of leniency. Channeling and redirecting discretion will minimize racist and arbitrary outcomes and realize true individualized sentencing.

Since deciding in 'Gregg v. Georgia' that the death penalty may be imposed within the confines of the Eighth Amendment, the Supreme Court has held that capital sentencers must weigh mitigating evidence when determining whether to sentence a defendant to death. The Court has not, however, required that sentencers receive explicit guidance in this weighing process. Last Term, in 'Kansas v. Carr', the Court took another step away from explicit guidance, holding that the Eighth Amendment \"does not require capital sentencing courts 'to affirmatively inform the jury that mitigating circumstances need not be proved beyond a reasonable doubt.'\" Although the Court's broad holding regarding mitigation was consistent with precedent, its discussion of the burden of proof applied by the jurors in 'Carr' ignored both contextual empirical evidence and relevant social-scientific data.

Franchisors and franchisees may allege, and juries may decide, claims of breach of contract (breach of the franchise agreement), breach of the covenant of good faith and fair dealing, a wide range of other business claims (common-law misrepresentation, trademark infringement, interference with contract, as examples) and defenses, for example, waiver, estoppel, and sufficiency of the plaintiff's efforts to mitigate damages. II.The Challenge of Statutory Circularity in Franchise Law Jury Instructions A particular challenge for practitioners preparing jury instructions in franchising cases comes from the circularity of many of the definitions contained in the various applicable statutes. Payments to a trading stamp company by a person issuing trading stamps in connection with retail sales of goods or services are not a franchise fee.21 This exclusion appears in several franchise registration and disclosure laws, presumably to avoid treating issuers of trading stamps as franchisors.22 Today it is anachronistic, since few retailers make use of trading stamps. [...]this portion of the instruction regarding the definition of a franchise could be excluded.

Limiting instructions and instructions to disregard inadmissible evidence are widely believed to be both ineffective and necessary. Courts presume that juries follow evidentiary instructions, but the presumption is almost universally acknowledged to be false, a kind of professional myth. This Article argues that we have it backwards. The real \"myth\" about evidentiary instructions is not that they work; the real myth is that are pointless but that we need to rely on them anyway. Both of these ideas about evidentiary instructions are wrong or at best greatly exaggerated. Evidentiary instructions probably do work, although imperfectly and better under some circumstances than others. Furthermore, evidentiary instructions are not an essential part of jury trial, and the legal presumption that they work flawlessly is even less fundamental. The conventional wisdom about evidentiary instructions—\"of course they don't work, but we have to pretend that they do\"—spares us the messy but important task of assessing when evidentiary instructions are most likely to fail, how they can be made more effective, and what should follow from a recognition that they work, at best, imperfectly. It has made it easier, for example, to tolerate evidentiary instructions that are incoherent or senseless. They seem no worse, or less likely to be effective, than evidentiary instructions in general. The conventional wisdom about evidentiary instructions is part of a broader way of thinking about lay adjudicators that holds deep appeal but that we would do well to jettison: the idea that juries are something other than groups of human beings called together to sit in judgment, that trial by jury is something other than trial by people, that the jury is not a workaday committee but a kind of intuitive, unmethodical, prediscursive oracle—the \"voice of the community.\" Thinking about juries as groups of people—inherently flawed, just as people are inherently flawed, but capable of reason, just as people are capable of reason—would allow us to think more sensibly and more responsibly not only about evidentiary instructions but about adjudication more generally.

The Supreme Court in the Booker line of cases revolutionized sentencing law by applying a criminal defendant's constitutional right for a jury, not a judge, to decide key sentencing fact issues. Applying this constitutional line of cases in the course of defending a criminal antitrust case led to bringing together four separate silos of law with four revolutionary implications for antitrust: criminal antitrust, Sixth Amendment rights to jury fact finding, constitutional limits on the use of conclusive presumptions in jury instructions, and the constitutional prohibition of federal common law crimes. The four revolutionary implications for antitrust were as stunning for the author as they am sure to be to the antitrust bar, any one of which, when adopted by the courts or the Antitrust Division, will end criminal antitrust's long-accepted practices regarding per se conclusive presumptions.