Virginia Legislature Begins Special Session – Jury Sentencing Reform on the Table

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Virginia Legislature Begins Special Session – Jury Sentencing Reform on the Table

The Commonwealth of Virginia is one of five states that require jury sentencing after verdict. Next week, Virginia legislators will meet in special session to address a budget crisis caused by the pandemic and work on a variety of criminal justice reforms that include giving defendants the option to select jury sentencing.

Researchers Show Demographics of Who Is Likely to Show-up for Jury Service

Earlier this week, Winston & Strawn hosted a webinar focusing on jury selection during the pandemic.  Veteran trial consultants Rachel York Colangelo and Dan Wolfe presented research on the question, “Who will show up for jury service?”  The Southeast Texas Record reports their research shows Republicans are more likely to show up for jury duty than Democrats, young risk takers are more likely to show up than the elderly or those with health issues, and females expressed more concerns than males.  Wolfe added that people are becoming numb to the number of disasters hitting our world, calling it "crisis fatigue" — a condition that can impact how a jury assesses damages.

Federal Court Rules Live Audio-Video Coverage of Criminal Trial Preserves Public Trial Right

U.S. District Court Judge Keith Watkins (MD Ala.) ruled that to balance public safety concerns with public trial requirements, voir dire in the imminent trial in US v. Forston will be closed to in-person observers except for defendant’s family members and simultaneously live streamed elsewhere in the courthouse and on the court website.

Ex-Theranos Founder and CEO Challenges Representativeness of Federal Grand Jury Composition

Elizabeth Holmes is accused of defrauding investors about Theranos’s blood-testing technology.  While her trial is not scheduled to begin in San Jose, California until March 2021, her legal team is challenging the representativeness of the grand jury that issued indictments.

Asbestos Liability Trial Must Go Forward Despite Claims Jurors Will Be Distracted with Home Life

Defense counsel for companies accused of wrongfully exposing plaintiffs to asbestos have moved for delay of a virtual trial until it is safe to have an in-person trial.  In addition to citing health dangers to all trial participants, the defense pointed to occurrences in a previous all-remote trial where jurors were seen working out, cooking, and doing childcare during court proceedings.  Attorney Lindsay Weiss asserted that online trials are “not a fair process” if jurors are not attentive.  San Francisco Superior Court Judge Harold Kahn denied the motion and is working with the parties to come up with the optimum trial logistics.

A Retrospective on Texas Online Jury Trial

Last week we alerted readers to a couple of trials that would be livestreamed this week.  Both cases (one in Jacksonville, Florida and another in Austin, Texas) resulted in final verdicts.  The Washington Post now provides a retrospective on features of the Austin misdemeanor trial (speeding in a construction zone).  There were some glitches, but trial judge Nicholas Chu reflected, “This type of proceeding probably won’t be appropriate for serious cases at this time, but I think this trial shows jury trial by videoconference is something that merits further study, especially during this pandemic.”

Capital Jurors Shown to Be Largely Uncandid During Jury Selection. How to Get Closer to the Truth?

Researchers from Texas, North Carolina, and Massachusetts (Rogers et al., 2020) asked over 500 test takers to read death-penalty-relevant questions on capital juror questionnaires and then indicate how truthfully they would answer if the questions were posed to them. Nearly 30 percent admitted that they would misrepresent close to half of their responses, effectively concealing either strong support or strong opposition to the death penalty.  Trial consultant Ken Broda-Bahm suggests that their inclination to answer untruthfully stems from either strong desire to serve on the capital case or desire to give an expected correct answer.  He urges the refashioning of voir dire questions to avoid suggestions of the “correct” answer.  For example, asking for responses that give a number of options, such as:

In my view, the death penalty should be applied…

  • Automatically, whenever someone is convicted of murder
  • Generally, when someone is convicted of murder
  • Sometimes, depending on the circumstances
  • Rarely, only in very extreme cases
  • Never

Trial Judge Reflects on First In-person Jury Trial During Pandemic

Yolo County (California) Superior Court Judge Samuel McAdam spoke with Law360 last week about how jurors handled social distancing in a recent in-person trial, why he prefers witnesses to wear face shields instead of masks, and what worries him about fully resuming civil jury trials this fall.