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Hung Juries: An Incomplete Literature Review
Hung Juries are the subject of law review study. This note attempts to briefly comment on the current holes in the "Hung Jury Literature". The information below is not intended to be conclusive, timely, complete, or a thorough discussion of hung juries.
This examines some of the popular assumptions about hung juries, and tests whether the open literature adequately supports these claims. To assist you, you are encouraged to provide long, detailed commentary on your own blogs, then provide links from this comment thread back to your content.
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Important Clarifications
No Attorney Client Relationship
The information below is only a narrow discussion of key points about hung juries. The information may be inaccurate, incomplete, or unreliable. This does not establish an attorney client relationship; nor should be used as legal advise. This information does not establish any legal relationship. The information presented below is for discussion purposes only and should not be used when making any informed judgments about personal legal issues. Discuss these personal legal issues with a legal counsel you trust, licensed to practice law in the field of law you seek assistance, is a member of your State's Bar, with a law degree from an accredited law school. Do not rely on this information about personal decisions.
Literature Review of Hung Jury Trial Practices
The comments below are intended to narrowly focus on what information in the public domain may or may not support a particular assertion about hung juries trial practices. These comments are not intended to comment on a specific issue, but examine only the text within open sources. The information may relate to peer reviewed law articles, case law, trial practice, and rules of procedure.
A given citation, author, or public law review article may or may not fully discuss all issues related to a hung jury. This is to be expected. Where the article does not address an issue, that non-comment will be noted. This does not imply that a failure to comment on a specific trial procedure or court practice means that the non-mentioned practice is or is not permissible. Silence merely means this particular article and case citations do not support any assertion about a trial practice. Indeed, where there is no evidence in any law review article, statute, trial procedure, handbook, or manual supporting an assertion about a trial practice, the absence of information only means there is no public information commenting on that specific claim.
Other TPMM Bloggers
By all means, if others would like to present other views and discussion on other material supporting other trial procedures, they are free to blog about that procedure, with supporting law review discussion, on their own blog, and provide a link back to this blog.
DOJ OLC Prohibited Use
The information below is not an assertion of law, but a personal opinion and discussion of the open source literature. This information should not be relied upon as legal advice to the Department of Justice Office of Legal Counsel. The information and conclusions may not be credible, nor are they intended to be reliable statements. Use at your own risk. Outside counsel reserves the right to seek an inventory of all documents DOJ legal counsel use citing any information below.
April 13, 2008 3:43 PM | Reply | Permalink
For identification purposes only: ( 15 Wm. & Mary Bill of Rts. J. 893; February, 2007 ) This briefly discusses the Allen Charge, and the Keep Talking Charge. The only reference to "polling" is the court direction to the jury.
The Jury Poll, as used in this article, is a poll taken before the final verdict. The Poll is taken to review whether each Juror believes there will be benefits in further deliberations to reach a unanimous verdict.
As used in this article, the poll has nothing to do with what the jurors decided or thought, but is narrowly linked with their deliberation decision: To continue or not continue.
The "jurry poll" definition as used in the article does not specifically mention any post-deliberation consultations with either defense or prosecution; nor does it specifically refer to any consultations after the jury has been dismissed between counsel and the jury members; nor does this definition confer any procedural right onto either defense or prosecution to force or ask jury members, by name and identification, to respond to detailed questions about their decision.
The article also expressly differentiates between a "jury poll" conduct by the court, and other intercdtions with the jury members. This quote expressly includes only a court-interaction, and does not include any attorney discussions, or attorney questions of the jurors:
Jury polls in this article narrowly relate to court reviews of the jury members about the benefits of continued deliberations. The article is silent on whether polling can occur after the jury has been dismissed; or whether counsel have or do not have any role in asking jury members. Court officers are not the same as the court's presiding officer, a judge or magistrate.
April 13, 2008 3:45 PM | Reply | Permalink
The Court is an independent branch of government, with the power to establish its own rules outside the control, interference, or disruption by Congress and Executive Branch officers. The court regulates the conduct of its officers. There is a legal basis for courts to review whether jury polling is lawful, improper, or has deviated from reasonable court procedure:
The Court established that the polling procedures and practices can be a subject for the court to review. This does not mean that any and all polling, however asserted, is lawful; nor that anyone can make a sweeping assertion that any and all polling is lawful. The court, not the media or DOJ OLC decides what is or is not a prohibited or permitted court practice.
Nowhere has the Supreme Court in Lowenfield suggested any US Attorney, defense counsel, or DoJ OLC legal counsel may dictate to any court that they as counsel shall have unfettered access to any or all jurors.
Rather, the court does mention a dissenting court opinion which concludes the opposite: That the court polling may be improper coercion:
It can hardly be argued, in light of Lowenfield that that polling is above any examination, nor is it automatically permitted without constraint. The Supreme Court recognizes that courts may be sanctioned for improper polling. It cannot be argued that any and all polling is permitted; or that all polling is a regular practice. Rather, it is a highly regulated court practice.
The court continues in re Brasfield:
This hardly suggests court polling of a jury within an Article III judicial setting is not without concern, potential drawbacks, or adverse consequences. The court recognizes that the dangers of polling a real, not speculative, and could undermine justice. The issue turns on the Cannons of Judicial Conduct: Whether a Court has implemented any practice that runs counter to the Cannons.
Indeed, the court expressly mentions the jury's reaction to that court polling of jury members:
The Supreme Court expressly stated that the "Court ignores" important details when evaluating how a jury may react to polling procedures. It cannot be argued that all courts polling is permitted; only that when the court evaluates whether to conduct jury polling, the court must consider many factors in how the jury members react to this polling.
The Supreme Court in this case is silent on any evaluation by outside legal counsel, investigators, or others in conducting other types of jury interviews. It cannot be said this case presents any legal basis for anyone to argue non-judicial officers can decide, on their own outside court, whether jury polling is or isn't appropriate. This is an exclusive Article III judicial decision, subject to Supreme Court review. The Executive has no power through Article II to demand any jury members assent to any jury polling; only the Article III Judicial Officers may make rules, decisions, and evaluations about these factors. The Article III Court alone has the exclusive power to weigh these many factors before conducting any court polling of jury members before final verdict.
Lowenfield is silent on whether non-judicial officers outside the Article III branch may or may not conduct jury polling. The Court addresses the dangers of jury polling within the courtroom, but is silent on permitting judicial inquiry outside the courtroom; or any judicially-sanctioned procedures legal counsel may rely with interacting with jurors after the court completes its jury polling.
April 13, 2008 4:23 PM | Reply | Permalink
Defendant Rights To Fair Trial
The government sometimes must be reminded whose rights are involved. The issue isn't whether the government counsel have any rights to demand information of juries, but whether jury polling substantially undermines defendants' rights to a fair trial. In Jones 527 U.S. 373 (1999) the court affirming, found jury members do not automatically face the prospect of a poll; and this failure to poll does not justify overturning a conviction:
No Congressional Language Compelling Jury Polls
As of 1999, the court reminded us there was no statute compelling any such jury instruction:
Jury Polling Not A Protected Right
The court reminds us that jury polling is not required, nor a Constitutionally protected defendant right:
Where the Eighth Amendment does not confer any polling right to a defendant, the Constitution is silent on whether the government has any right, standing, or legal foundation to demand jury members respond to counsel questions about their deliberations. Where the Constitution is silent, that right belongs to the States and People, not to the government.
Constitution Silent On Jury Polling As An Article II Power
The Constitution does not confer any right of jury polling to any defendant. Silence on rights does not confer to the Article II branch a power to compel jury members to respond. The Court in denying jury polling as a right to defendants does not have the power to create for the Article II branch any "inherent power" to exercise rights or powers to compel jury polling outside court, or in a regime that would undermine the government interest to ensure the jury system is free from coercion. This power is only created in the Constitution.
The Constitution is silent on granting any "jury polling" power to the Article II Executive or Officers. Where the Constitution is silent on any delegation of power, that power does not exist. The Court has no Constitutional power to create and delegate power to the Article II branch. This would impermissibly put the Article III Court in the position of a higher, non-equal branch of government and is unconstitutional.
Unfettered Community Conscience Expressed In Court
The government has an interest in public support for the deliberative process. Indeed, where the government attempts to interfere in any way with jurors, that has a substantial impact on the independence of the courts:
It can hardly be argued that the Article II branch of government, which has no right to conduct court-directed jury polling, would have any lawful interest in interfering with the jury before, during or after trial. The question turns on whether the Article II branch of government has or hasn't unreasonably interfered with the conscience of the community by engaging in non-judicially permitted contact with jury members; or has refused to consider factors only the Article III branch court officers can evaluate before starting any jury polling.
April 13, 2008 4:56 PM | Reply | Permalink
Article III Judicial Polling
Judicial polling by a court is different than an investigator's interview of a juror. The Court in Lowenfield was open to other types of court polling, but is silent on permitting non-judicial interviews, outside the Article III forum:
Judicial Branch Jury Polls Distinguished From Investigators' Interviews
The issue isn't whether judicial polling is or isn't permitted; but what impact that non-judicial branch interviews, before, during, or after trial -- by anyone in or out of government -- will have on the jury, it's deliberations, and the sense of the community. The concern of Congress is whether non-judicial interviews of jurors, after they have left the court is or isn't affecting future jury independence and sense of the community. Nixon affirmed Congress had the power to review government investigatory practices.
The public has endured illegal inspections under DOJ OLC memoranda, and has no reason to assent to coercive interviews. The government cannot credibly argue post-deliberation inspections of jury members would ensure justice for defendants.
April 13, 2008 5:16 PM | Reply | Permalink
A sample jury poll is prospective, as distinguished from an investigative interview:
The court's jury poll is a prospective look at the deliberations; but does not ask about conclusions of law, or reasons for problems during deliberations, which are retrospective interview questions.
April 13, 2008 5:33 PM | Reply | Permalink
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April 14, 2008 3:11 PM | Reply | Permalink
All beware the poster of this blog is a known spammer on TPM that throws unsubstantiated crap on the news blogs that link to his unsubstantiated rants.
April 15, 2008 7:38 AM | Reply | Permalink
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