The Legal Seagull: Law | Litigation | Self-Help | Legal History

Did you ever hear about the woman who spilled McDonald's coffee on herself and was awarded five kachillion dollars by a jury?  Liebeck v. McDonalds,  the "hot coffee case" went to trial in 1994, and remains to this day one of the most notorious civil lawsuits in American history.

The verdict was quickly (and sensationally) reported by late night talk show hosts, newspapers and magazines, and practically every national and local television channel. It even made its way into foreign newspapers. As the years passed, the story evolved, several important facts were omitted and others added, and the truth was lost in the annals of history.

The "hot coffee case" has become a cause celebre for politicians and business tycoons, who, in support of their calls for "tort reform" legislation,  conveniently cast it as the archetypal "frivolous lawsuit." Everyone knows of the case– but few people are aware of the actual facts.

In this episode, we discuss the myths and truths of Liebeck v. McDonalds.

The home is universally revered as a place of sanctuary, privacy, and independence. It is not surprising that the United States Constitution affords special protections to the home. The Fourth Amendment states:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." (emphasis added).

Notably, the Fourth Amendment only prohibits unreasonablesearches and seizures; moreover, it does not state that warrants are required– only that when issued- probable cause is a pre-condition to issuance. In the context of police entry into one's dwelling ("houses" includes apartments, condos, hotel rooms, and even mobile homes), constitutional jurisprudence has interpreted "unreasonable" as follows: a warrant is required prior to entering and searching a residence . . . subject to a few very important exceptions. This episode will detail the numerous exceptions to the warrant requirement. 

This episode will discuss the following exceptions, in detail:

Exigent circumstances

Exigent circumstances are those in which the police have probable cause, but obtaining a warrant is either impractical or there is not enough time. Exigencies include apprehension of a fleeing suspect, imminent threat of destruction of evidence, and likelihood of injury or loss of human life.

– Hot pursuit: the police may enter a residence to capture a fleeing suspect. Unlike baseball, you're not "safe" once you reach home.

– Destruction of evidence: the police may enter a home without a warrant to prevent the imminent destruction of evidence (e.g. drugs, contraband, etc.).

– Mendez v. Colorado (Colorado Supreme Court, 1999): Police arrive at a motel and smell marijuana emanating from the defendant's room. They enter the room and find him flushing something down the toilet. They search the room and seize marijuana, cocaine, and drug paraphernalia. The Colorado Supreme Court affirms his conviction, holding that exigent circumstances existed here, where there was an imminent threat of destruction of evidence (e.g. smoking it or flushing it down the toilet).

– Mincey v. Arizona (1978) 437 U.S. 385: Arizona law provided for a "murder scene exception," which allowed police to conduct warrantless searches of a murder scene on grounds that these inevitably involve exigent circumstances. In this case, the police entered the defendant's apartment- a shoot-out ensued- and an undercover officer was killed. The police then recovered all injured persons and arranged for medical services. They waited for homicide detectives, who arrived shortly after and conducted a search of the apartment. The U.S. Supreme Court held that the "murder scene exception," which held that all murder scenes inherently involve exigent circumstances, was unconstitutional. In this case, there was no threat of destruction of evidence or danger to life or limb; therefore, it was not impractical to obtain a warrant prior to searching.

– Flippo v. West Virginia (1999) 528 U.S. 11: Defendant was vacationing with his wife at a state park cabin. He called 911 to report they had been attacked while camping. After interviewing the defendant, the police entered the cabin and found his wife dead with a gunshot wound to the head. They then searched the cabin, discovered incriminating evidence, and charged him with murder. In a unanimous decision, the Supreme Court held, pursuant to Mincey v. Arizona, that a murder scene, in and of itself, does not create a per se exigent circumstance.

– Welsh v. Wisconsin (1984) 466 U.S. 740: The defendant was involved in a vehicle collision, then left the scene prior to the police's arrival. Witnesses told the police that the driver appeared sick or drunk. Police went to the defendant's home and found him drunk. The police contended that the search was valid because of a concern of destruction of evidence; namely, the defendant's blood-alcohol content (BAC) level. The Supreme Court held that even though there was concern for destruction of evidence, when only a minor offense is involved, the presumption is stronger that a warrantless search of the home is unreasonable. The Fourth Amendment's ban on unreasonable searches involves balancing the right of privacy against the need for police to act in exigent circumstances. In evaluating this balance, the gravity of the alleged crime is a factor to consider.

– Community caretaking exception: the police may conduct warrantless searches when acting in their capacity as community caretakers.

– Cady v. Dombrowski (1978) 413 U.S. 433:  The defendant, a Chicago police officer, is involved in a car accident and taken to hospital, where he remains in coma. The police, concerned that his service revolver was not located on him, went to search his vehicle. They found evidence linking him to a homicide, and he was later indicted for murder. The Supreme Court held that even though these are not truly exigent circumstances, the police may act to protect the community under certain circumstances.

– Consent: the police may conduct a warrantless search where they have consent from the defendant or a third-party with apparent authority.

– U.S. v. Matlock (1974) 415 U.S. 164: The defendant was arrested. A woman claiming to be his wife gave the police consent to search the home. The police found drugs and charged the defendant with narcotics violations, of which he was later convicted. The Supreme Court affirmed the conviction, holding that consent may be granted by a co-tenant with sufficient connection to the property or to the defendant.

– Illinois v. Rodriguez (1990) 497 U.S. 177: The defendant was arrested and charged with narcotics violations. The police were given consent to search by a woman claiming that the home was "ours." They searched the home and  found additional evidence, which was later used to convict the defendant. The U.S. Supreme Court holds that the police are entitled to rely in good faith on a consenting person's claim that he/she has authority to consent.

– Georgia v. Randolph (2006) 547 U.S. 103: The defendant was arrested outside of his home. His ex-wife, who was present at the scene, gave the police consent to search the home for drugs. The defendant, who was still present, vocally refused to provide consent. The police entered the home and seized narcotics. The Supreme Court reversed the conviction,  holding that where a co-tenant refuses consent, it is unconstitutional for the police to conduct a warrantless search.

Arbitration is an alternative dispute resolution method that allows parties to forego the time and expense of a jury trial and elect instead to have their dispute heard and adjudicated by a supposedly neutral third person. When parties of equal or similar bargaining power elect arbitration, it can be a mutually-beneficial and efficient means of resolving a dispute.

Mandatory arbitration clauses, which require the parties to submit to arbitration, are contained in many consumer goods/services "contracts." Unless you have been living in the Unabomber's abandoned cabin for the past 15 years, you've signed numerous documents "consenting" to waive court relief in favor of arbitration. If you've done business with any of these companies, chances are you will need to arbitrate any potential claims that arise: Amazon, Netflix, Hulu, AT&T, Time Warner Cable, Verizon, T-Mobile, Sprint, Comcast, Discover, Wells Fargo, PNC Bank, Chase, American Express, TD Bank, Citibank, Sony, Dell, Xbox Live, Toshiba, KB Home, Pep Boys, Gold's Gym, Ticketmaster, Crocs, Barnes & Noble, Match.com, Ebay, Microsoft, Paypal, Stubhub, Dropbox, Snapchat, Charles Schwab, Fidelity, Morgan Stanley, Fidelity, and many more.

Proponents of mandatory arbitration clauses laud them as a consensual means of resolving disputes expediently and speedily. Opponents castigate these clauses as coercive terms buried in an endless pit of "legalese," and presented to consumers on a "take it-or-leave it" basis. Mandatory arbitration clauses are said to deprive consumers of the right to an impartial jury trial, subject them to a heavily-biased dispute resolution system, shield companies from liability for corporate malfeasance, and produce a host of judicial ills.

In this episode, we discuss the following in detail:

– The advantages of arbitration, as argued by proponents of mandatory arbitration clauses.

– Criticism of mandatory arbitration clauses by consumer organizations:

– Mandatory arbitration clauses are so infrequently detected or understood by the general public that there is no real "consent" to these terms.

– Consumer contracts often include clauses that require arbitration in a distant forum (state or locale), making it more difficult for consumers to exercise their legal rights than would be the case if they could file in state court.

– Company-selected arbitration forums are, both in theory and in practice, inherently biased against consumers.

– Arbitration clauses frequently prohibit forming a class action, making it impractical for many consumers to seek legal relief for the wrongful conduct of corporations.

– Arbitration proceedings are almost impossible to appeal in the absence of clear bias or manifest disregard of a well-established law, thereby restricting consumers' ability to appeal errant rulings.

Despite popular belief, "tort reform" has nothing to do with pastries or small cakes (see "tortes" or "tarts"). Torts include a variety of civil lawsuits (e.g. personal injury, wrongful death, medical malpractice, professional negligence, premises liability, defamation and more). "Tort reform" is a term coined by proponents of laws enacted in most states to "reform" our civil liability system. The most controversial of these laws are caps (limits) on the amount of damages a person can recover against a defendant in a medical malpractice lawsuit. In this episode, we discuss the stated purposes of caps on damages and the rebuttals of those who claim these laws amount to nothing more than "tort deform."

We discuss the following in detail:

–  The history of "tort reform" laws in the United States.

– The stated goals of "tort reform" laws:

– Eliminating frivolous lawsuits and "lawsuit lotto."

– Reducing insurance companies' payouts- thereby causing professional liability premiums to go down.

– Reducing healthcare costs.

– Preventing "defensive medicine" among physicians and hospitals.

– The rebuttals by opponents of "tort reform" laws:

– The lack of evidence that "tort reform" laws have reduced physicians' premiums, healthcare costs, or defensive medicine.

– Caps on damages tend to affect those who are most severely injured and in need of financial recovery, such as children, the elderly, and the poor.

– Placing an arbitrary cap on damages invades the role of the jury, which has always had the role of deciding the extent of damages (if any).

– Do caps on damages actually work?

– Are caps on damages unconstitutional?

In August 2014, the California Senate passed Senate Bill No. 967(the "Yes Means Yes" law). California is the first state to pass a law of this kind, which requires colleges that accept state funds to adopt a new "affirmative consent" standard when evaluating complains of sexual assault. Critics lament that the law is overreaching, blurs the lines of consent by creating significant ambiguity rather than clarity, and violates the longstanding principle of "innocent until proven guilty" by shifting the burden of proof to the accused- who must prove "affirmative consent"- a very difficult evidentiary standard to meet.

Is Senate Bill No. 967 a laudable step towards curbing the epidemic of campus sexual assault? Does it go too far by infringing on the rights of the accused to the presumption of innocence and the right against self-incrimination? Maybe a little bit of both? To answer these questions, I interview civil rights attorney Joseph Cohn, legislative and policy director of the Foundation for Individual Rights in Education ("FIRE").

In the Marx brothers' movie Duck Soup, Chico Marx famously says, "Who are you going to believe, me or your own eyes?

Eyewitness misidentification is the most significant contributing factor to wrongful convictions. According to The Innocence Project, 72% of the people exonerated by post-conviction DNA evidence were initially convicted, at least in part, on the basis of an incorrect eyewitness identification. What can explain the phenomenon that witnesses and victims of crime, when recounting such significant (and traumatic) events, are so often mistaken? In this episode, we evaluate the factors that contribute to eyewitness misidentification and discuss a few of the reforms advocated to increase the reliability of eyewitness identification and minimize mistakes.

We discuss the following, in detail:

– In evaluating the evidence against a defendant, an eyewitness identification is accorded substantial weight by jurors. The conventional wisdom is that a person who witnesses a crime, or is a victim, could accurately recall the perpetrator and positively identify him.

– Social scientists have divided the factors contributing to incorrect identifications into two groups: estimator variables and systemvariables.

– Estimator variables refers to factors that are not under the control of the police or justice system.

– Examples:

– Race: studies have demonstrated that people are substantially more likely to make a mistaken identification when the perpetrator is from a different race or ethnic group.

– Distance from perpetrator and lighting: Naturally, the farther the distance from the perpetrator and the worse the lighting, the less chance there is of an accurate identification.

– Emotional stress: it may seem counterintuitive, but high psychological stress actually impairs memory- making it more likely that witnesses will incorrectly identify their perpetrator. This is especially true when there is a weapon present, as the witness tends to focus on the weapon rather than the face of the perpetrator.

–  Memory: our memory does not function as a "sponge" that retains everything we see and hear; rather, we retain some or most of what we perceive, but many gaps remain- which we then subconsciously fill with other memories (such as newspaper articles we read, photos we saw, etc.); our expectations or beliefs of what should or was likely to have happened; biases; and general knowledge.

– System variables refers to factors that are under the control of the police or justice system, such as the behavior of the police, communication with witnesses, and procedures for police lineups.

– Suggestibility: police officers present during a suspect lineup may intentionally or unintentionally hint to a certain suspect. The witness wishes to be helpful and to remove a dangerous person from the streets, and is often easily swayed. Here are a few examples of how this plays out:

– "Take another good look at no. 3: does he look like the guy who assaulted you?"

– If the witness appears to be focusing on the "wrong" person: "please take all the time you need and look carefully at each of them before making any decisions."

– "Great job, that's the guy!"

– Sometimes the police officer need not say anything. For instance, the witness may notice the officer staring at a specific person for too long and realize that this person is in fact the focus of the investigation.

– Selection of "fillers":

– Lineups typically consist of the primary suspect and five or six "fillers"- who are put in to "distract" the witness.

– The problem is that studies have shown that witnesses often engage in "relative judgment" (i.e. comparing the people in the lineup to each other and picking the one that looks most like the perpetrator) rather than "absolute judgment" (i.e. comparing each person independently to their recollection of the perpetrator).

– If the suspect looks different, or stands out in some way from the fillers, the witness may be led to identify the outlier as the perpetrator.

– Here a few examples of real cases:

– The defendant is the only black person standing next to five white people.

– The defendant is the only person in the lineup wearing a baseball cap, consistent with the witness' description of the perpetrator as wearing a cap.

– The defendant is the only person with a beard.

– Simultaneous lineups: As noted above, the problem of "relative judgment" is exacerbated by the common method of putting the suspect in a lineup simultaneously with the fillers, which allows for comparison with others rather than to one's recollection.

– There are several reforms advocated by organizations committed to reforming the problem of eyewitness misidentification. These include the following:

– "Double blind" lineup– arranging the lineup so that neither the witness nor the police officer administering the lineup know which person is the suspect. This eliminates the problem of suggestions (inadvertent or otherwise) by the police officer.

– Sequential lineup vs. simultaneous lineup– eliminating the simultaneous lineup and having the witness evaluate each person in the lineup separately, without knowing who is next or if there are any additional persons coming up in the lineup.

– Selection of fillers to closely match eyewitness' description: this will limit the possibility that the suspect will stand out and be picked on the basis of vague resemblance to the perpetrator rather than an absolute identification.

– Instructions: the witness will be instructed that (1) the perpetrator may or may not be in the lineup; (2) the witness should not look to the police officer or anyone else for guidance; and (3) the investigation will proceed regardless of the ability of the witness to make an accurate identification. These instructions are designed to remove some of the witness' pressure to make an identification when facing doubts.

– Recording identification: in cases where the witness' identification is wavering, unclear, or influenced by the administrator of the lineup, videotaping the identification allows the defendant to question the reliability of the identification at trial.

– Confidence statement: asking the witness to state how confident he or she is in the identification to decrease the risk of a wrongful identification.

– Educating the jury: Presenting expert testimony regarding the unreliability of eyewitness identification to educate the jury as to the problems inherent in eyewitness identification and encourage them to take caution when evaluating the strength of the identification.

We all know the feeling. You're on the road enjoying a worry-free drive, when you suddenly notice flashing red/blue lights in your rear view mirror. At first, you figure you should change lanes to allow the police car to drive ahead and apprehend the deranged criminal who has run afoul of the local traffic laws. Within seconds, you realize that you are the alleged perpetrator, and pull over to be lectured and cited. In today's episode, I interview attorney Elliott Malone, a consumer and business law attorney who has successfully defended himself and others in defeating traffic tickets. Fighting a traffic ticket is not easy; however, if you undertake the necessary preparation, research, effort, and time, you will put yourself in the best possible position to beat a traffic ticket, or to negotiate a plea bargain to a lesser charge.*

Knowing your rights, the law, and the procedures are important factors in making educated decisions to limit your exposure to a traffic conviction.

In this episode, we discuss the following steps in detail:

Consider hiring an attorney

Although traffic citations are generally not as serious as other criminal convictions, they still involve hefty fines, increases in insurance premiums, and potential suspension or revocation of driving privileges. Attorneys can be expensive, and may charge a few hundred dollars (or more) to fight a traffic citation. In determining whether you need to hire an attorney, consider the exposure you face if you defend yourself and lose:

– Are you eligible for traffic school to expunge your ticket? If not, how much will your insurance premiums go up over the next few years?

– How many points do you already have on your record? Will an additional conviction subject you to suspension or revocation of your driving privileges?

– Does your job require you to have a clean driving record? If so, will a conviction result in you losing your job?

 The advantage of hiring a competent attorney is that he or she will (presumably) know the rules and procedure better than you; and, if traffic tickets are his or her specialty, may know the prosecutor and judge better than you, and therefore be more likely to successfully negotiate a plea bargain or dismissal.

Being represented by an attorney is not a requirement. You could represent yourself- but be prepared to invest the necessary preparation!

Decide whether it is worth contesting your ticket

Not all tickets are worth contesting. As indicated above, evaluate your financial and personal circumstances and determine whether it is worth your time, money, and effort to contest the ticket. Your analysis should include:

– What are your costs?

– If your ticket does not cost you any points, and is payable with a minor fine, you might want to consider paying it off rather than contesting it. This is especially true if you are gainfully employed and would be losing a day's pay to appear in court.

–  Some judges will impose harsher penalties (including disallowing traffic school as a means of expunging your ticket) if you contest a ticket and lose.

– How strong is the case against you?

– What are the charges against you?

– What is the evidence against you?

– Cameras?

– Witnesses?

– Radar guns?

– If the evidence against you is strong, do you still have a colorable claim for why you should be acquitted?

– Do you believe the equipment used to determine your speed was defective or not properly calibrated?

– Do you believe that the video footage was inaccurate or a case of mistaken identity?

– Could the police officer's account of your driving conduct be inaccurate, mistaken, or false?

– If you did break the law, was doing so necessary to prevent a greater danger (e.g. running  a red light to prevent someone from killing you in a high-speed rear-end collision).

– Are you likely to get a plea bargain by pleading guilty?

What to do when you get pulled over

Do NOT be confrontational or aggressive. Always remember that the police officer has no idea who you are. As far as he or she knows, you could be on your way to bible class or a fugitive wanted for murder. Be respectful, courteous, and make the officer feel comfortable. Roll down your window, put your hands on the steering wheel, and cooperate with the officer. Be mindful that the police officer may be taking notes of the encounter. If you are rude or belligerent, he or she might make a note of it for trial, and the encounter might influence his or her testimony.

If the officer cites you (as opposed to a verbal warning) keep the ticket and inspect it for any inaccuracies.

– Is the date and time correct?

– Is the license plate, car description, and location accurate?

– Does the description of the violation contain any mistatements?

– Be sure to hold on to the ticket for use at trial. Make sure you set a calendar reminder to show up at court on the date and time noted!

Researching and preparing for trial

Learn the law. If you are going to argue that you are not guilty, you had better learn everything you can about the statute or regulation under which you were charged, the elements that the state must prove to convict you, and the defenses available to you. Much of this information is available on the Internet and through self-help websites and resources. Check to see if your local courthouse has a self-help section or law library that you can use for your research and preparation.

– Check to see if there are any procedural defenses, such as expiration of the statute of limitations or violation of your right to a speedy trial. If so, you might be able to prevail on those grounds instead of risking conviction on the merits of the case. There is no disadvantage to raising these issues (if you have a reasonable basis to do so); however, in many states you waive these defenses if you do not timely raise them. Do your research!

– Evaluate whether you have other defenses, such as the necessity defense (mentioned above).

– "I didn't know it was illegal" is NEVER a defense! If you drive a vehicle, you are expected to know the law.

Study and observe the court procedures. Every state has its own procedures for traffic violations. Some states allow you to contest or pay a violation by mail; some require personal appearances. If you have a choice to contest your ticket by mail, check to see whether you would be better off doing so or appearing in person.

– Watch traffic court in session. The best way to learn court procedure is to watch the court in session. Trials are public and you have a right to be present. Sit in the audience, get comfortable, and spend as long as you can (the more the better) watching the proceedings. Take note of the following:

– The roles and personalities of the judge, prosecutor, and defendants.

– Does the judge appear to be lenient or rigid? Is he or she amenable to challenges or unlikely to entertain your arguments? Does he or she have a stated policy of denying traffic school to defendants who lose at trial?

– Dose the prosecutor look reasonable? Does he or she appear likely to offer you a plea bargain to avoid the time and expense of proving the case against you beyond a reasonable doubt?

– What are the court procedures for examining and cross-examining witnesses, exchanging discovery, introducing exhibits into evidence, and conducting yourself in court?

– The longer you observe the court proceedings and the key players in action, the more comfortable you should be with the process.

– On your court date (or prior if possible) approach the prosecutor to see whether he or she is willing to offer you a plea bargain. If so, consider whether it is worth accepting it in lieu of contesting the ticket and risking a higher penalty.

Conduct discovery to learn everything you can about the charges against you.

You are entitled to (and must!) conduct discovery prior to trial to prepare your defense. Discovery is the process by which you may request information and documents from the police officer (or other witnesses or agencies) which are related to the charges against you. Be sure to learn your state's discovery procedures to ensure you are complying with all requirements.

You should request all information and documents you believe may assist in your defense, and any evidence that might be used by the state to convict you. Here are a few examples:

– Any notes that the officer made relating to the traffic stop.

– Any photographs or video recordings made during the traffic stop.

– Learn everything you can about the internal workings of any equipment used by the police officer, including the police department's rules and procedures regarding use of that device.

– If you were citing for speeding, be sure to request all information pertaining to the radar gun (or other device) used to measure your speed at the time of the traffic stop. This would include any instruction manuals for the equipment, police manuals and procedures relating to use of the device, the name/model of the device, and any notes, memoranda, logs, or other documents pertaining to the device's frequency of calibration and maintenance.

– Check to see if any documents mention the device's margin of error. For example, if you were cited for going 69 mph in a 65 mph zone, and the device has a 5 mph margin of error, you may have a good defense.

– Radar devices require regular maintenance and calibration, which is generally done with special tuning forks.

– You need to find out everything you can about the regularity with which the device was maintained and calibrated; most importantly, you want to know when it was last calibrated prior to your ticket.

– If you learn in the course of discovery that the device was not properly calibrated, or that the officer cannot produce documents establishing proper maintenance and calibration of the device, that is information that may be very useful at trial, as it may create a reasonable doubt as to your guilt.

– If your citation involved video footage of the alleged violation (e.g. failure to stop at a red light) request a copy of all footage and review it to determine its impact. If you believe the footage demonstrates you are not guilty, that may form a strong basis for your defense. Likewise, you may determine that the video footage is certain to lead to your conviction, in which case you may want to explore a plea bargain or simply pleading guilty.

Trial: going all the way

Once you have done all your research and preparation and determined that trial is your best option, be sure to bring all your documents and witnesses (if applicable) with you to court. Be mindful that you will likely need to share any evidence you intend to use with the prosecutor or police officer. Do not attempt to hide anything or you may be sanctioned by the court and lose the trial!

Try not to be nervous. If you are taking this case to trial and have done your preparation, you are already many steps ahead of the game. Be confident!

Remember the importance of cross-examination.

– Unlike direct examination, cross-examination is the process by which each party has the opportunity to ask a witness questions intended to clarify, raises questions about, and explore inconsistencies about the witness' testimony.

– If the police officer testifies that he or she does not have an independent recollection of the events (and is relying on notes) you may want to point out that there are things that he does not remember that are not contained in the notes, which may help your defense. (Be mindful that you must always be truthful!)

– If the officer says that he or she is testifying from memory, you may want to ask questions designed to test that memory. These may include the following: (1) What was the weather that day? (2) What was the weather the day before and after? (3) What did you eat for lunch that day? (4) What was I wearing? If you are able to raise a legitimate doubt in the judge's mind about the officer's recollection of events, you may be able to obtain an acquittal.

– Your cross-examination should include questions about matters that you believe negate the strength of the officer's testimony. For example, if the officer observed the alleged traffic violation from a great distance, you would want to know how far away he or she was, and whether that may impact the reliability of the testimony.

– Remember that cross-examination involves examination (i.e. questioning)- it is not the time to make an argument to the court!

– If you have the opportunity to make a closing argument, use it to point out to the judge the reasons you believe you are not guilty, and the inconsistencies and problems (if any) with the officer's testimony.

– If you lose at trial and intend to appeal, be mindful that you need to follow all the appropriate procedures to preserve your right to appeal, and must do so in a timely manner.

Remember… drive safely!

* Neither this podcast episode nor these show notes constitutes legal advice or attorney-client communications.  When assessing your legal rights, it is highly recommended that you retain an attorney licensed in your state, who is knowledgeable of your state's laws and court rules.

Few features of the American legal model are less understood than the jury system. For most people, the first introduction to juries comes in the form of a long-dreaded summons for jury service, which has an uncanny tendency to arrive during the busiest and least convenient times. For those unfortunate to be involved in a civil lawsuit or charged with a crime, the thought of being judged by a selection of 6-12 strangers can be a scary thought. In today's episode, we will cover: (1) the right to a jury trial; (2) how juries are selected; (3) what is the function of the jury and how does it differ from that of a judge?; (4) how juries deliberate and make decisions; and (5) the phenomenon of jury nullification, whereby a jury consciously disregards the law and acquits a criminal defendant based on social or moral reasons, to show disapproval for a law, or when it feels that the law is unjust.  Right to Trial by Jury

– The United States Constitution guarantees a jury trial for the majority of civil and criminal actions.

– Article III, section 2 states: "The trial of all crimes shall be by jury and such trial shall be held in the state where the said crimes have been committed."

– The Sixth Amendment states: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state where the said crimes shall have been committed."

– The Seventh Amendment provides: "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re–examined in any Court of the United States, than according to the rules of the common law."

– Trial by jury offers parties several important advantages over one in which a judge is the trier of fact:

– Jurors come from a variety of socioeconomic backgrounds, racial and ethnic origins, and bring their own life experiences and wisdom to the jury, leading to more thorough discussion and analysis by the jury as a whole.

– Juries often reflect the common values of the community and therefore often render decisions in conformity with those values.

– In theory, it would be easier to bribe or corrupt a single judge than numerous jurors.

– By contrast, juries may be susceptible to the following problems:

– Juries may be more likely than judges to fall for demagoguery, rhetoric, and passions of attorneys, and therefore may reach verdicts that are at odds with the evidence.

-As members of the community, juries may vote in line with their prejudices, which may disadvantage defendants on the basis of race, socioeconomic background, gender, sexual orientation, etc.

– Strong-minded and vocal jurors may overpower and pressure mild-mannered ones.

– Jurors may have difficulty understanding complicated matters (e.g. pharmaceutical patents, electric configurations, financial schemes, etc.) that would be easier understood by a judge.

– In criminal cases, a jury, not a judge, must determine whether aggravating circumstances exist to increase a defendant's sentence or impose the death penalty. (See Apprendi v. New Jersey (2000) 530 U.S. 466; Blakely v. Washington (2004) 542 U.S. 296). In Apprendi, the Supreme Court held that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt."

– As previously noted in The Legal Seagull Tidbit for LS 007: Is Teacher Tenure Unconstitutional?, every defendant has a constitutional guarantee of an impartial jury by members of his or her own community, which includes a broad and fair representation of the community, especially with respect to race, ethnicity, and gender. This guarantee applies to the jury pool from which a jury is selected- it does not mean that a person has a right to a jury of his or her own particular race, ethnicity, or gender.

 Functions and Duties of a Jury  

– The jury is charged with listening to witness testimony and experts, reviewing physical evidence and documents, and any other evidence, and making factual findings. Juries must evaluate the credibility of witnesses, the strength of the evidence presented and whether it is compelling and reliable, and to determine which parties should prevail (if any).

– The judge, by contrast, conducts the trial by interpreting the law and instructing the jury as to substantive and procedural laws, jurors' responsibilities, and the deliberations process. In criminal cases, the judge usually imposes the sentence (subject to certain limitations, discussed below).

– Juries are asked by the judge to evaluate the testimony and evidence presented at trial and to follow the court's instructions in determining whether the law has been violated or a party is entitled to recover in a civil suit.

– In cases where there are no disputed material issues of fact, the judge may determine upon appropriate motion (e.g. motion for summary judgment, motion for judgment on the pleadings, motion for directed verdict, etc.) that there are no disputes as the to the major allegations, and that the only question left for the court to decide is a legal one, which is best decided by a judge.

– Example: Paul sues Donald over wrongful termination under Statute A. Paul and Donald agree as to all the material facts in the case, including the fact that Paul had an independent-contractor employment relationship with Donald's company. The only issue left for the court to decide is whether under Statute A, independent contractors are entitled to sue for wrongful termination. Here, there are no factual issues for the jury to determine, and all that remains is a legal question. In this example, it would be appropriate for the judge to rule that a jury is not necessary (indeed improper).

  How is a Jury Selected?

– Parties may waive the right to a trial by jury, and instead elect to have the case decided by a judge. This is generally referred to as a bench trial or court trial.

– Jurors are summoned for jury duty based on information obtained from public records (e.g. electoral rolls, drivers' licenses, etc.). The people summoned are referred to as the "jury pool."

– Once arriving at the courthouse, a clerk will typically assign potential jurors to fill the jury box. At this point, the judge or lawyers will ask the jurors if there is any logistical/financial/person reason they cannot serve (e.g. family hardship, financial difficulties, pre-planned trips to leave town, etc.). The judge may excuse potential jurors for service on those grounds; however, employment commitments are rarely persuasive to judges, as they apply to most people and employers are prohibited by law from discriminating against an employee based on jury duty.

– After some potential jurors are excused, the judge or lawyers (depending on jurisdiction) ask the jurors a series of questions about their backgrounds and beliefs in order to obtain their appropriateness as jurors, whether they have any biases, prior knowledge of the case, or know any of the parties or lawyers involved in the case. This process is known as voir dire.

– After or during voir dire, the parties and judge may excuse any party for cause, meaning that the person cannot reasonably be expected to be an impartial juror. Examples of a removal for cause may include the following:

(1) A person that is employed or otherwise affiliated with a party the action.

(2) A person that has a family member as a juror.

(3) In the selection of a jury for a criminal case, a person that has been the victim of a similar crime and who believes that he or she cannot evaluate the defendant's case impartially. Likewise, a person who claims to be a victim of police brutality or prosecutorial misconduct may not be expected to be impartial.

(4) A person who states that he or she holds such strong racial/ethnic/gender biases that would preclude a fair evaluation of the evidence.

– In addition to an unlimited number of dismissals for cause, each party may dismiss a limited number of jurors, depending on the jurisdiction. These are referred to as peremptory challenges.

– Peremptory challenges may be may for any reason except one prohibited by law (i.e. race, ethnicity, gender). (See Batson v. Kentucky (1986) 476 U.S. 79, holding that jurors in a criminal case cannot be excused based on race; Edmonson v. Leesville Concrete (1991) 500 U.S. 614 extended this right to civil cases; J.E.B. v. Alabama (1994) 511 U.S. 127 holding that "gender, like race, is an unconstitutional proxy for juror competence and impartiality").

– In selecting juries for high-profile cases, some attorneys use jury consultants- individuals with backgroudns in law, psychology, or sociology who understand (or claim to understand) juries' deliberations, decision-making process, and the opinions of the parties and evidence presented. Jury consultants can be expensive, with an average cost of $250-$300. Jury consultants offer the following services:

(1) Analysis of whether the parties provoke strong personal reactions from the jurors, good or bad;

(2) Discovering undisclosed biases of jurors.

(3) Observing jurors during court sessions and breaks to determine their levels of attention and leanings, and to see which jurors appear to be socializing, to determine whether "cliques" are forming. Many jury consultants claim to be able to analyze the facial expressions and body language of jurors.

(4) Pre-trial investigation to determine what attributes and backgrounds the attorneys should seek in selecting a jury.

– As a tactical matter, diligent attorneys will attempt to have a case tried in the most favorable venue possible.

– Jury verdicts need not always be unanimous.

– In federal court, jury verdicts must be unanimous, unless agreed otherwise by the parties.

– Each state may decide whether jury verdicts must be unanimous.

– In criminal cases, every state except for Oregon and Louisiana requires a unanimous verdict.

– Notably, both Oregon and Louisiana require unanimous verdicts in capital cases.

– The U.S. Supreme Court has given some indications that it may review the constitutionality of non-unanimous verdicts in criminal cases. For a great blog entry on this topic, read Non-unanimous criminal  jury verdicts by Eugene Volokh.

– In civil cases, about one-third of states require a unanimous verdict. The rest allow for a majority verdict.

– If a jury cannot reach a verdict after exhausting the deliberations process, this is referred to as a "hung jury." Under most circumstances, the judge will excuse the jury and declare a mistrial. The parties will then determine whether to retry the case before another jury.

  Jury Deliberations

– At the conclusion of all testimony and evidence, the judge will provide jury instructions that explain the law and procedure, and verdict forms, to the jury. Each party's attorney may suggest its own instructions, or use standard judicial forms. The judge, outside of the presence of the jury, decides which instructions comply with the law and should be given. Jury instructions are appealable in the event of an adverse verdict, and in fact form the basis of a significant number of appeals.

– After being instructed as to the law, the jurors convene in the deliberations room, where they may be provided with certain exhibits and transcripts (depending on the judge).

– There is no set format for jury deliberations, and these take place outside of the presence of the judge, attorneys, clerks, and any other court spectators. Jury deliberations may take only minutes, days, or even weeks. They may be civil, but are often contentious, with some jurors attempting to impose their opinions on the other jurors. Despite this, juries almost always reach a verdict.

– If the jury does not understand the instructions, or has any other questions relating to the law, the evidence, or the testimony, it may submit a note to the judge. Then, in the presence of the attorneys and parties, the judge reads the note and determines how to respond.

– Once the jury has reached a verdict, it signs the verdict form and delivers it to the court. The jury is then brought in, and the verdict announced.

– After the verdict, the attorneys are generally permitted to ask the jurors how they reached their decision, and their opinions of the case, the evidence, and the parties themselves. However, attorneys must be respectful of jurors' right to not speak with them.

Jury Nullification

– As mentioned above, jury nullification involves a jury's conscious disregard of the law and the evidence in a criminal case, to show disapproval for the law, rejection of perceived prosecutorial overreach, or other social considerations.

– Jury nullification has a long history that pre-dates the founding of the United States:

– Salem witch trials (1690s)

– Fugitive slave laws (1850s)

– Freedom to strike (late 1800s)

– Alcohol prohibition (1930s).

– Jury nullification is most common in drug trials, and in particular marijuana, when a jury feels that the defendant committed the crime for which he or she is charged, but nonetheless believes the conduct should not be criminal or that the defendant need not be fined or incarcerated.

– Jury nullification is a "two-edged sword" which can be used for sinister purposes too. It has been used by juries to acquit defendants of the murder of racial minorities, even in case where the evidence of guilt was overwhelming.

– Jury nullification is not sanctioned as a proper function of a jury. As previously noted, the jury is is ordinarily charged with finding facts, not deciding the appropriateness of the law or whether it should be disregarded in favor of a particular defendant. That being said, the U.S. Supreme Court has never held that the jury does not have the power of nullification. However, it held in Sparf v. United States (1895) 156 U.S. 51 that trial judges were not required to inform juries that they may nullify a verdict.

– In Unites States v. Moylan (1969) 417 F.2d 1002, the Fourth Circuit U.S. Court of Appeals held, "If the jury feels that the law under which the defendant is accused is unjust, or exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the right to acquit, and the courts must abide by that decision."

Native American law (or "Indian law" as it is sometimes called) lies at the intersection of federal, state, and tribal laws, some of which pre-date the arrival of European colonists in North America. In today's episode, we discuss the nature of Indian law, its origins, applications, powers, jurisdictional issues, and sovereign immunity.

I interview Thomas Weathers, an attorney with an active Indian law practice. Mr. Weathers is an Aleut and an enrolled member of the Qawalangin Tribe of Unalaska. He and I discuss the following in detail:

– The origins of Native American law, both before and after the arrival of Europeans. Article 1, section 8 of the U.S. Constitution empowers Congress to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." The Constitution, however, in particular the Bill of Rights, does not apply to Indian tribes.  In 1968, Congress passed the Indian Civil Rights Act, which extended most of the Bill of Rights to Indian tribes.

– As with the federal and state governments, Indian tribes enjoy sovereign immunity- they cannot be sued without their consent. Consent can be express, as when a Congressional statute specifically provides for a right to file lawsuits against a tribe. Tribes may also affirmatively waive their rights to sovereign immunity by entering into contracts that provide for other parties to seek redress in alternate forums (e.g. arbitration clauses that allow awards to be enforced in state or federal courts). In the absence of Congressional action or affirmative waiver by tribes, they are generally immune from lawsuits.

– Tribal courts retain jurisdiction over most civil and criminal matters involving Indians; however, they have virtually no jurisdiction over non-Indians. Mr. Weathers discusses a few different factual scenarios to illustrate how jurisdictional issues may arise.

– Mr. Weathers discusses some recurrent issues involving Indian law as it pertains to state business and contract law, and to commerce between Indians and non-Indians.