In
recent years, several legal commentators have questioned the wisdom of
maintaining the American jury system.
Some critics question whether lay juries are the best mechanism for
resolving increasingly complex and sophisticated matters while others fear that
many jury trial outcomes are more related to savvy attorneys and jury
consultants than to the facts of the case.
This note will not argue that these critics are right to call for an
abolishment of the jury system; instead it argues that the jury system, at
least as many Americans know it, does not really exist in the first place.
What
exists today is a “quasi-jury” system:
lay persons hear the evidence and are asked to reach a decision, but
that decision is heavily influenced, and sometimes flat out ignored, by trial
and appellate court judges.[1]
These judges’ mistrust of juries results in an undermining of the jury system
that has the effect of substituting the courts own judgment in place of the
jury’s.
After
presenting a brief history of the jury system, this note looks at five ways in
which trial and appellate court judges demonstrate their lack of faith in the
jury at various stages of a case: (1)
during the trial itself, the refusal to allow juries to hear character
evidence; (2) during deliberations, the use of ‘Allen charges’; (3) after the
verdict is announced, the reduction or overturning of punitive damages awarded
by the jury; (4) during sentencing, the use of acquitted conduct; and (5) on
appeal, deciding factual issues that were never determined by the jury.
It
should be noted at the outset that many of these practices engaged in by judges
are not new ones. In fact, as will be
seen, some of them have existed, at least to some degree, for decades, if not
centuries. Thus, some may argue that
these judges are motivated by stare decisis rather than by any mistrust of the
jury. However, it is significant that
all of these practices are within the discretion of the judge. A judge faced with a deadlocked jury is not
required to give an Allen charge, nor are judges compelled to reduce punitive
awards made by a jury.[2] In fact, since reliance on precedent does
not explain their actions, judges have proffered other rationales in these
areas. Included in the discussion will
be a critical look at these alleged justifications for impeding on the jury.
I. A BRIEF HISTORY OF THE JURY SYSTEM
Most
historians believe the Western jury system originated in classical Athens,
about 400 years before the time of Christ.[3]
The Athenian philosophy was that those accused of wrongdoing should be allowed
to argue their cases before a tribunal of their peers, whose duty was to apply
their understanding of justice, that which we would now call the conscience of
the community.[4] However, the ancient Greek jury, called a
dicastery, was quite different from the juries we now today.[5] There were 501 jurors for each criminal case
and 201 for each civil case.[6] Given the size of the juries, it is not
surprising that verdicts were reached by majority rather than unanimous vote.[7] The jurors’ decision was final, although the
loser had the right to bring a civil perjury suit against any witness whom he
believed testified falsely.[8] Jurors were often chosen for a specific case
because they had knowledge or information about it.[9] Preformed opinions were common, and these
opinions were openly discussed among the jurors during the presentation of
evidence.[10] The jurors were permitted to direct
questions to the parties during the trial, and it was not uncommon for the jury
to yell or hiss or otherwise express its opinion.[11] No available evidence was kept from the
jury, and no aspect of a defendant’s life was off-limits.[12]
When
the Athenian world was swept away by the Romans, the jury system’s use
diminished. The Romans were
indefatigable writers of laws, designed to cover every conceivable
situation. Roman courts were designed
to apply the statutes, not interpret them, and for that no citizen input was
required. However, the Romans did study
the Greek system and maintained a system of juries who heard criminal trials
once a year.[13] When the Romans conquered Britain, they
brought the jury system with them.[14] However, most historians agree that the
English jury system did not begin in earnest until after the Normans invaded
England in 1066.[15] Up until about 1200 the juries in England
dealt primarily with property disputes.[16] Jurors were considered to have knowledge of
the matter before the trial began; in fact often they went on tours of
the disputed land parcel prior to commencement of the trial.[17]
In
1215, the King signed the Magna Carta.[18] Article 39 of the Magna Carta dictated that
“no free man shall be taken or imprisoned . . . unless by the lawful judgment
of his peers. . .”[19] While the Magna Carta placed jury trials in
prominence, the jurors themselves were hardly treated with reverence. Juries were not allowed food or drink until
they reached a verdict.[20] Additionally, if the jury did not reach a
verdict by the time a circuit judge had to move on to the next jurisdiction,
the jurors were packed into a cart and taken along with the judge until they
reached a decision.[21]
As
colonization of America began, the jury system was guaranteed in some form in
the incorporating charters of each colony.[22] Although unanimity among jurors in criminal
case verdicts had become English rule, some colonies had provisions for
majority rule decisions.[23] The Declaration of Independence declared
among its grievances against the King that he had been depriving colonists of
the right to jury trial.[24] The Sixth Amendment to the Constitution
guarantees the right to jury trial in criminal trials and the Seventh Amendment
provides for the right in civil trials.[25] In 1968, the U.S. Supreme Court held that
the Sixth Amendment had been incorporated into the Fourteenth Amendment and
therefore applied to the individual states.[26]
The
Seventh Amendment reads: “In suits at common law, where the value in controversy
shall exceed twenty dollars, the right to 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.”[27] While this language seems to express a
desire that the jury’s word be final, the reference to ‘the common law’ has
been interpreted as a restriction on the jury.[28] After all, the common law “is pretty much
what judges say it is,” and thus the prohibition against reexamination of any
jury’s verdict has given way to the practice of judges overriding juries in
numerous ways.[29]
II. EXCLUSION OF CHARACTER EVIDENCE
Relevant
evidence is defined as evidence “having any tendency to make the existence of
any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.”[30] Since the very purpose of a jury is fact
finding, it would seem to follow that any evidence ‘of consequence’ to the
determination of a given case should be presented to the jury. Unfortunately, this is not always the
case. Federal Rule of Evidence 403
provides that “although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice. . .”[31] This balancing test traces all the way back
to Wigmore whose views dominated the development of evidence law in the early
twentieth century.[32]
There
are numerous scenarios in which evidence is considered too prejudicial— ‘rape
shield’ laws which prevent the alleged victim’s prior sexual history from being
introduced[33], polygraph
test results, and ‘day-in-the-life’ videotapes which show how a plaintiff’s
life has allegedly been changed by the defendant’s conduct[34]. But perhaps the most common type of evidence
deemed to be prejudicial is so-called ‘character’ evidence. Federal Rule of Evidence 404, also known as
the character evidence rule, prohibits evidence that is aimed at proving an
actor’s conformity with a character trait on a particular occasion.[35]
The
justification for this rule was succinctly expressed by Justice Jackson in Michelson
v. United States: “The state may
not show defendant’s prior trouble with the law, specific criminal acts, or ill
name among his neighbors, even though such facts might logically be persuasive
that he is by propensity a probable perpetrator of his crime. The inquiry is not rejected because
character is irrelevant; on the contrary, it is said to weigh too much with the
jury and to so overpersuade them as to prejudice one with a bad general record
and deny him a fair opportunity to defend against a particular charge. Strictly speaking, propensity evidence is
relevant; it shows that the individual is not so inhibited by either the
community’s fundamental moral judgments or the law’s physical threat as to
invariably refrain from serious crime.”[36]
This rule is most often associated with criminal cases during
which the prosecution attempts to introduce evidence of the defendant’s
negative past conduct even though that specific conduct is not at issue in the
present case. In People v.
Golochowicz[37], for
example, the defendant was on trial for first-degree murder. The victim, Mitchell, had been found in his
own condominium in Novi, Michigan, having been strangled by a bathrobe tie.[38] Several items were found missing from
Mitchell’s condo, including his stereo speakers, his checkbook, and a credit
card.[39] Mitchell’s automobile was also missing.[40] Two days before Mitchell’s body was found,
the defendant appeared at the home of his friend Dennis O’Clare.[41] The defendant was driving Mitchell’s car and
also had Mitchell’s checkbook.[42] The defendant offered to sell to O’Clare a
Quasar television set and a Fisher stereo system.[43] O’Clare declined and both items were found
in Mitchell’s condo at the time his body was discovered.[44]
At
the defendant’s trial for Mitchell’s murder, the prosecution introduced, over
defense objection, testimony from O’Clare relating to a separate crime.[45] O’Clare testified that a few days after
Mitchell’s body was found, the defendant asked O’Clare whether he (O’Clare) was
interested in buying a Sony television set.[46] After O’Clare stated that he was interested,
the defendant drove O’Clare to a house in Detroit where the defendant claimed
the TV was located.[47] Once inside the home, the defendant went
upstairs after instructing O’Clare to stay in the living room.[48] However, O’Clare went into the kitchen and
observed a pool of blood on the stairs leading to the basement.[49] He went downstairs and observed a man’s body
lying face down with an electrical cord around his neck.[50] At the defendant’s insistence, the two men
removed the television, a stereo, and several other items from the house before
leaving.[51] O’Clare further testified that the next day,
the defendant confessed to strangling the man in Detroit but then immediately
retracted that confession.[52]
After the defendant was convicted for the Novi murder, he
appealed, arguing that the testimony related to the events in Detroit was
impermissibly allowed.[53] The Supreme Court of Michigan agreed and
reversed the defendant’s conviction.[54] The court expressed its opinion that the
evidence identifying the defendant as the murderer in the Novi case was fairly
weak.[55] Thus, the court stated, there was good
reason to believe that the jury convicted the defendant based solely on the
testimony concerning the defendant’s role in the Detroit homicide.[56] According to the court, the jury “likely . .
.conclu[ded] that whatever the strength of the identification evidence in the
case, the defendant [was] demonstrably a bad person and should be imprisoned
anyway.”[57] Leaving no doubt as to its lack of faith in
the jury, the court further stated that the trial court’s decision created the
danger that the jury would “misconstrue the proper purpose of the evidence or,
upon learning of the other crime, be stirred by such passion as to be swept
beyond a rational consideration of the defendant’s guilt or innocence of the
crime on trial.”[58]
As mentioned, the sort of evidence ruled improper in Golochowicz
is not excluded on the basis that it is not relevant for determining the
immediate case. It would, of course, be
ludicrous to suggest that in a murder case, in which the defendant is accused
of strangling the victim and then stealing his television and stereo, evidence
that the defendant strangled a different individual and stole his television
and stereo, is not relevant in determining the defendant’s guilt.[59] What the character evidence rule does is
prevent the jury from considering such evidence for fear that the jury will not
consider anything else.
III.
ALLEN CHARGES
An
Allen charge occurs after a deliberating jury announces to the court that it is
hopelessly deadlocked. While the
precise language of the charge varies among different court systems, its
general purpose is to inform jurors to continue deliberating, often with
specific instructions to those in the minority to reconsider their positions.[60] This type of instruction was first approved
in an 1896 United States Supreme Court case, Allen v. United States.[61] There, the Court acknowledged that
“the verdict of the jury should represent the opinion of each individual
juror.”[62] However, the Court also maintained that “it
cannot be that each juror should go to the jury room with a blind determination
that the verdict shall represent his opinion of the case at that moment, or
that he should close his ears to the arguments of men who are equally honest
and intelligent as himself.”[63]
Proponents of Allen charges argue that these
instructions do not stem from a mistrust of the jury, but rather are based on
legitimate judicial interests, mainly reducing mistrials and the subsequent
costs of new trials. But while it is
generally difficult to prove a negative (i.e. that judges don’t trust juries),
the use of Allen charges in death-penalty cases at least refutes the notion
that the preservation of time and money are always the prime motivation behind
these instructions. This is because in
capital cases, the Allen charge is often given during the penalty phase after
the defendant has already been found guilty of the crime(s) charged, and thus a
retrial is not an option.
An
illustrative case is Sears v. State[64],
a 1999 Georgia case. After the jury
determined that the defendant was guilty of the underlying crime, it began
deliberating to decide whether to impose the death penalty or life
imprisonment.[65] The trial judge informed the jury prior to
these penalty phase deliberations that anything less than a unanimous death
verdict would have mean an automatic life sentence.[66] In other words, even if the jurors could not
reach a unanimous decision, no new court action would be needed. The jury twice
announced it was hopelessly deadlocked, with 11 in favor of death and 1 in
favor of life imprisonment.[67] The one minority juror also told court that
she was being threatened.[68] The court gave an Allen charge and insisted
that the jury continue to deliberate.[69] Two hours later, the jury announced returned
with a death sentence.[70] The holdout juror later testified that since
the judge knew the jury was in favor of death by an 11-1 margin, the juror
believed the judge’s insistence on reaching a verdict meant the judge wanted
the juror to vote for death.[71] Nonetheless, on appeal, the death sentence
was affirmed.[72]
In Lowenfield v. Phelps[73],
the defendant was convicted of first-degree murder. The jury then began sentencing deliberations, deciding whether or
not to impose the death penalty. Again,
before these deliberations began, the trial judge informed the jury that if the
jury could not reach a unanimous recommendation, the court would impose the
sentence of life imprisonment.[74] On the second day of deliberations, the jury
informed the court that it was unable to reach a unanimous decision.[75] The trial judge then asked each juror
whether he/she felt further deliberations would be helpful.[76] Eleven jurors answered ‘yes’ one answered
‘no.’[77] The court then gave an Allen charge.[78] Thirty minutes later, the jury returned with
a death sentence.[79] The Supreme Court upheld the use of the
Allen charge despite acknowledging that the principal argument in favor of the
charge—saving the costs of a retrial—was not existent in the case.[80] Nonetheless, the Court ruled, “the state has
in a capital sentencing proceeding a strong interest in having the jury express
the conscience of the community on the ultimate question of life or death.”[81]
Henderson v. Collins[82]
also involved a jury deliberating the penalty phase of a defendant. The defendant, having been convicted of
murder, burglary, and attempted rape, was facing the death penalty or life
imprisonment.[83] On the second day of the penalty-phase
deliberations, the jury sent a note to the judge that read, “We are deadlocked,
period.”[84] The court then gave an Allen charge.[85] Remarkably, the judge’s charge concluded, “I
don’t think you are deadlocked. You
go back there and talk it over.”[86] The jury resumed deliberations and, four
hours later, returned with a sentence of death.[87] The circuit court upheld the charge and the
death sentence, holding that the trial court’s charge was not “materially
distinguish[able]” from the one used and approved in Lowenfield.[88]
Although the use of Allen charges in non-capital cases allows
the court to hide behind the pretext of saving court resources, such cases are
equally illustrative of the usurping aspect of the charges. Consider the case of United States v.
Dawkins.[89] There, the defendant was on trial for heroin
distribution.[90] After roughly six hours of deliberations,
the jury was unable to reach a unanimous verdict.[91] The court then recalled the jury and gave an
Allen charge, during which the judge stated:
“I urge you to go ahead and try again, and those of you who are in the
majority, if there is a majority, to try and convince those who are in the minority.”[92] Following the judge’s charge, the jury
needed only 45 minutes of further deliberation before returning a guilty
verdict.[93]
On appeal, the circuit court upheld the conviction, holding that
there was “no basis for concluding that the instructions had a coercive effect
on the jury.”[94] This was true, the court reasoned, because
there was no way of knowing “whether the ultimate verdict of guilty represented
the views of those in the majority or those in the minority at the time the
instructions were given.”[95]
Despite
the court’s feigned ignorance, it is rather difficult to fathom that the
initially minority position prevailed less than an hour after the judge
explicitly directed the majority jurors to convince the minority jurors. Imagine instead, however, that the initial
majority was in favor of a guilty verdict.
For the sake of argument, lets suppose 9 jurors were in favor of a
guilty verdict while 3 were in favor of a not guilty one. Each juror remains convinced of his or her
position after nearly 6 hours of deliberations. The jurors are then called back into the courtroom, where the
judge informs the entire jury that it is the responsibility of those in
the majority to convince the others of the correctness of their position. The minority jurors return to the jury room
with the impression that the judge believes the correct position is the one
held by those in the majority.[96] After all, if the judge did not feel that
way, why would he want the majority jurors to convince the others that the majority
jurors are in the right? The jurors
have seen the judge in a position of power throughout the trial and know he has
extensive experience in the area of criminal law. They also likely know that the judge has been privy to evidence
and facts related to the case that they as jurors never saw. Not surprisingly, the three jurors in the
minority switch positions in less than an hour and a guilty verdict is
returned.
Of course, since deliberations are conducted in complete
secrecy, there is no way to know if this is what actually happened. The problem, however, is that it might
have happened. And if it did happen
that way, then the defendant’s guilt was in fact determined, for all practical
purposes, by the trial judge and not by a jury of his peers.
Proponents of the Allen charge assert that eliminating the use
of the charge will increase the number of hung juries and thus result in
increased costs and further burden already overburdened dockets. As discussed, this concern is inapplicable
in the context of death penalty cases.
Of course, most cases are not capital ones. So what of the others?
Although there has been little data compiled on hung jury rates, most
experts place the current hung jury rate at about five percent.[97] Whatever the number, it is obvious that
eliminating the use of Allen charges would increase hung juries. The most pertinent response to this concern
is that worry about the increased costs of retrials simply does not justify the
practice of coercing juries to reach verdicts that do not accurately reflect
each individual jurors true and honest belief.
A second response would be that the use of Allen charges is not the only
way to reduce the occurrence of mistrials.
For example, some legal commentators have advocated the elimination of
the unanimity requirement in criminal cases.[98]
IV. TORT REFORM/ PUNITIVE DAMAGES
Within the last two decades, perhaps no aspect of the American legal system has received more attention than tort reform. According to those in favor of such reform, the civil trial system in this country has gotten out of control, especially with regard to damage awards. They point to statistical data that purportedly show that so called “mega verdicts” have increased greatly beginning in the late 1970s. Reformers claim that this alleged rise is the result of overly sympathetic juries who make monetary awards based on pity for plaintiffs rather than on the evidence presented to them. Many also believe that juries give larger awards against defendants with ‘deep pockets’ and smaller awards against other equally culpable defendants.
In response to this supposed crisis, both legislatures and
judges have significantly reduced the jury’s role in deciding how to best
compensate an injured party and/or punish the wrongdoer. This has been accomplished primarily by
limiting the jury’s role in assessing punitive damages.
Although
punitive damage awards in this country have existed since 1784, they were not
widely used until the 1820s.[99] There is not universal agreement as to
whether the Constitutional right to a jury includes the right to have punitive
damages determined by a jury. In a
recent Supreme Court case[100],
the Court held that although the Seventh Amendment barred federal appellate
courts from reexamining the factual findings of juries, an award of punitive
damages does not itself constitute a finding of fact. Justice Ginsburg dissented, arguing that case law dating back to
the 1850s supported the view that, under the Seventh Amendment, the appropriate
amount of punitive damages was a question of fact that must be resolved by the
jury.[101]
Many
states, concerned with the economic effect of very large punitive awards, have
taken measures to limit punitive damages.[102] One common mechanism is to put statutory
‘caps’ on punitive damages, which may be absolute (i.e. punitive damages can
never exceed x million dollars) or relative to compensatory damages
(i.e. punitive damages may not exceed compensatory damages multiplied by x). For example, as part of tort reform legislation
recently passed in Colorado, non-economic damages are limited to $250,000 in
most situations.[103] The limitations may not be disclosed to the
jury.[104] Thus, no matter what damages are deemed to
be fair by the jury, if they exceed the pre-established limits, they are
reduced by the court.[105] Additionally, in wrongful death cases,
punitive damages are never allowed, even if the act causing death was
outrageous or reprehensible.[106]
Even
in the absence of legislative action, however, courts often reduce punitive
awards determined by a jury. This can
be done directly through post trial motions or appeals, or indirectly through
the remittitur process that enables the court to force the prevailing party to
accept a reduced amount or endure a new trial.
According to a recent study, one out of two punitive awards were
reversed or reduced in the post-verdict period, with the largest awards having
the highest rates of downward adjustment.
In
a well-known case, a jury in New Mexico awarded $2.7 million in punitive
damages to an elderly woman who suffered third degree burns to her inner thighs
and buttocks as a result of spilling hot coffee she bought at McDonald’s.[107] The judge later reduced the punitive damages
to just $480,000. In an Alabama case, a
jury awarded $4 million in punitive damages to the purchaser of a car after
finding that the distributor had failed to disclose prior damage to the car.[108] On appeal, the Alabama Supreme Court cut the
award in half to $2 million. The United
States Supreme Court heard the case and found even the $2 million to be
excessive.[109] On remand, the state supreme court ordered
that a new trial be held unless the purchaser agreed to damages of just $50,000[110]—less
than two percent of the jury’s original award.
In a recent California case, a jury returned a verdict of $4.8 billion
in punitive against General Motors in a suit based on the explosion of a
Chevrolet Malibu gas tank.[111] A judge later reduced the punitive damages
to $1.09 billion.
Thus there is no disputing the fact that the jury’s role in
assessing punitive damages has been significantly undermined. What is not so obvious, however, is the
existence of the tort ‘crisis’ that reformers claim necessitates this intrusion
upon the jury.
Proponents
of tort reform often point to polls that seem to support their position of a
legal system run amok. And in fact,
several recent polls do indicate that the American public believes awards made
by juries to plaintiffs in personal injury suits are excessive, and that an
increasing number of suits are frivolous.[112] Yet, while such statistics indicate that
the American public agrees with the tort reformers, they may actually run
counter to the implementation of reform itself. After all, a poll is very similar to a jury—both are comprised of
a relatively small number of individuals, selected (for the most part)
randomly, who supposedly represent the feelings and opinions of a larger
community.[113] If the polls cited by the tort reformers are
accurate, then a majority of Americans feel that plaintiffs have been receiving
too much money. Yet since these same
Americans are the ones summoned for jury duty, presumably they will be unlikely
to repeat what they perceive to be the errors of the past.
A
second problem with the tort reformers’ use of statistics and polls is the
chicken versus egg issue. Specifically,
are tort reformers addressing a concern of the public or causing it? Many
believe it is the latter, including Professors Stephen Daniels and Joanne
Martin, who recently examined the relationship between tort reform and mass
culture.[114] Daniels and Martin’s insightful article
reveals how tort reform has been successfully ‘marketed’ to future jurors, i.e.
the adult public at large. For example,
in 1986, the Insurance Information Institute announced a $6.5 million public
relations campaign entitled “We All Pay the Price: An Industry Effort to Reform Civil Justice.”[115] A main aspect of the campaign was national
magazine and newspaper print ads with titles such as “The Lawsuit Crisis is Bad
for Babies” and “The Lawsuit Crisis is Penalizing High School Sports.”[116] A campaign later paid for by Aetna Insurance
included an advertisement that lamented, “When a woman riding in an automobile
spills hot coffee on her lap, then sues the restaurant where she bought the
coffee, something is wrong.”[117]
Have
these campaigns had any effect in the courtroom? Daniels and Martin interviewed hundreds of plaintiff attorneys
throughout Texas, who overwhelmingly agreed that the reformers marketing
campaigns had impacted juries.[118] Nearly ninety percent said that in their
experience, jurors were making lower awards than five years earlier in cases
with comparable injuries.[119] While plaintiff attorneys may be biased,
both defense attorneys and trial judges echoed similar sentiments.[120] Daniels and Martin also did a statistical
analysis of car accident case verdicts in two Texas counties and found the
median award in such cases fell from around $15,000 in the early 1980s to
around $6,000 in the late 1990s.[121]
While
the Daniels and Martin study dealt primarily with Texas, surveys involving
other states have yielded similar results.
Professors Neil Vidmar and Mary Rose examined Florida cases involving
punitive damages between 1988 and 2000.[122] Their analysis concluded that, contrary to
the reformers’ claims, punitive damages were rarely awarded, punitive damages
were almost never given in product liability cases, punitive damages are not on
the rise, and cases involving large punitive awards involved serious
misconduct.[123]
The
study also cast doubt on the ‘deep pockets’ theory—i.e. that jurors are more
likely to assess punitive damages against businesses than against
individuals. The study revealed that
punitive damage awards against businesses comprised only 48% of all cases involving
punitive damages.[124] Furthermore, of the cases in which both an
individual and a business were named as being responsible for an injury, 36%
resulted in individuals being solely responsible for the punitive portion of
the award.[125]
Although
the Leatherman case held that an award of punitive damages does not
constitute a finding of fact, it also provides the best argument as to why
punitive damage awards should be left exclusively to the jury. The majority explicitly differentiated
between a jury assessing a plaintiff’s concrete economic loss, which the Court
held was “essentially a factual determination” and its imposition of punitive
damages, which are “an expression of its moral condemnation.”[126] Since a jury of twelve individuals,
representing a cross-section of the community, will only award punitive damages
if there is unanimous agreement that the conduct in question was egregious,
there is in effect a ‘safeguard’ against arbitrary or excessive awards. Judge-made determinations, on the other
hand, do not reflect the moral voice of the community, but rather the opinion
of one person.
V. HARMLESS ERROR/ USE OF ACQUITTED CONDUCT
While
the courts practice of altering a jury’s determinations of damages against a
party that the jury has determined to be liable/guilty is quite troubling, an
even more alarming occurrence is the courts practice of substituting its own
judgment in place of the jury’s in determining the outcome of the primary
case. Of course, the most obvious
example of this occurs when a court sets aside a jury verdict in favor of one
party and finds for the other. Yet
there exists two lesser known practices that essentially have the same
effect. The first is the courts’ use of
‘acquitted conduct’ when sentencing a defendant. The second is the courts determination of the existence of
elements, which although necessary for a criminal conviction, are never
presented to a jury.
Most people who are even vaguely familiar with the criminal
justice system in America are aware that judges take several factors into
account when sentencing a defendant who has been convicted of a given
crime. For instance, the defendant’s
prior criminal record and the circumstances under which he committed the
immediate crime often play a significant role in the length of sentence
imposed. However, it may come as quite
a surprise to many that courts routinely increase a defendant’s sentence based
on conduct for which the defendant was tried and acquitted by a jury of
his peers.[127]
Take for example the case of Vernon Watts.[128] Following a police search of his home,
during which authorities found drugs and guns, Mr. Watts was arrested for
possession of cocaine with the intent to distribute and for using a firearm in
relation to a drug offense.[129] Following a jury trial, Mr. Watts was
convicted on the possession charge but acquitted on the weapons charge.[130] During Mr. Watts sentencing for the
possession charge, however, the district court enhanced his base offense level
by two levels based on a provision in the United States Sentencing Guidelines
which applies if “a dangerous weapon (including a firearm) was possessed”
during the offense or conviction.[131]
Watts appealed his sentence, arguing that it was improper for
the trial court to increase his sentence based on the weapon possession since a
jury had acquitted him of that charge.[132] The government argued that the trial judge
had acted properly because whereas the jury had acquitted Watts of using a
firearm in relation to a drug offense, the sentencing factor was merely
the possession of a firearm.[133] The circuit court rejected that notion,
noting that the commentary to the Guidelines did in fact refer to a link
between the underlying crime and the weapon.[134] Furthermore, the court noted that at the
sentencing, the trial judge explicitly expressed his belief that “there [was] a
connection between the possession of the guns and the offense.”[135] Holding that the two level upward adjustment
for the firearm possession was improper, the circuit court remanded the case
for resentencing.[136]
The Supreme Court, however, granted certiorari and reversed the
circuit court, holding that the use of acquitted conduct at sentencing was not
improper.[137] The Court held that a jury “cannot be said
to have ‘necessarily rejected’ any facts when it returns a general verdict of
not guilty.”[138] The Court ruled that the jury’s acquittal of
Watts on the firearm count did not “preclude a finding by a preponderance of
the evidence that [Watts] did, in fact, use or carry such a weapon.”[139]
While the Court in Watts attempted to justify the trial
judge’s usurpation of the jury’s findings on the distinction between the
differing standards of proof at trial and at sentencing, the Supreme Court of
Michigan has been less opaque. In People
v. Ewing[140], the
defendant was charged with several counts of sexual assault, stemming from
several separate incidents involving different alleged victims. The defendant was convicted on some counts,
and acquitted on others. During his
sentencing, the judge considered not only the crimes that the defendant had
been convicted of, but also those in which the jury had acquitted the
defendant. The court stated several
reasons why a jury’s decision to acquit did not necessarily mean that the
defendant did not engage in criminal conduct.
For example, the court noted that a jury may “quite plausibly” return a
defense verdict “because of lenity.”[141] The court then lamented that “it is also
true, unfortunately, that a jury may acquit a factually guilty defendant
because of confusion with regard to the judge’s instructions.”[142]
This mistrust of juries can, in certain circumstances, create a
situation whereby there is literally no difference whatsoever between a jury
verdict of guilty and not guilty. Such
was the case for Cheryl Putra.[143] Ms. Putra was arrested and charged with one
count of aiding and abetting possession with the intent to distribute one ounce
of cocaine on May 8, 1992; and a second count of aiding and abetting possession
with the intent to distribute five ounces of cocaine on May 9, 1992.[144] A jury convicted Putra on the first count
but acquitted her on the second.[145] At her sentencing, however, the trial judge
found by a preponderance of the evidence that Putra had in fact been involved
in the May 9 transaction, and therefore calculated her base offense level by
aggregating the amounts of both sales.[146] Ms. Putra was sentenced to 27 months in
prison. Had the guilty verdict on the
first count been the only basis for imposing punishment, the Sentencing
Guidelines would have required the judge to impose a sentence of between 15 and
21 months.[147] If Putra had been found guilty of both
counts with which she was charged, the Guidelines would have mandated a
sentencing range between 27 and 33 months.[148] In other words, as the district court applied
the guidelines, “precisely the same range resulted from the acquittal as would
have been dictated by a conviction.
Notwithstanding the absence of sufficient evidence to prove guilt beyond
a reasonable doubt, the alleged offense on May 9 led to the imposition of a
sentence six months longer than the maximum permitted for the only crime that
provided any basis for punishment.”[149]
It is also worth noting that the use of acquitted conduct at
sentencing directly contradicts the main justification for disallowing
character evidence. As previously
mentioned, courts have expressed concern that allowing character evidence will
result in a sort of jury nullification—i.e. juries convicting defendants for
their prior bad conduct rather than for their conduct in the immediate
case. Yet that is precisely what courts
do when they consider acquitted conduct—punish defendants for prior bad
acts.
That juries in America
have become little more than window dressing in many ways is perhaps best
illustrated by a 1999 Supreme Court case, Neder v. United States.[150] The appellant, Neder, was convicted in the
District Court on federal tax fraud charges.[151] Neder appealed to the 11th Circuit, arguing
that materiality, an element of the offense for which he was convicted, was
never submitted to the jury.[152] The Circuit court agreed that the district
court erred in refusing to let the jury decide the materiality issue, but
affirmed the defendant’s conviction on the grounds that since materiality was
not in dispute, the error was ‘harmless.’[153] The Supreme Court agreed that materiality
was an element of the crime, but also agreed that the district court’s error
was harmless.[154] The Supreme Court reasoned that since it was
beyond a reasonable doubt that “the jury verdict would have been the same
absent the error,” no new trial was warranted.[155] As Justice Scalia noted in his dissent, “the
Court let the defendant’s sentence stand, because we judges can tell that he
is unquestionably guilty.”[156]
Likewise,
in United States v. Colon-Munoz[157],
the jury was not instructed that materiality was a required element of the bank
fraud crime with which the defendant was charged. After his conviction, the defendant appealed, arguing, inter
alia, that the trial court’s failure to submit all required elements of the
bank fraud charge to the jury required a reversal of his conviction on that
charge.[158] The circuit court disagreed, choosing
instead to decide for themselves whether the defendant’s alleged scheme to
defraud involved material falsehoods.[159] Reviewing the facts of the case, the
appellate court reasoned that “officials at the bank reviewing [the
defendant’s] transaction would undoubtly be influenced . . . by [defendant’s]
deception.”[160]
In
United States v. Mojica-Baez[161],
the defendants were convicted of several crimes related to an armed robbery,
including a firearms possession charge.[162] On appeal, the defendants noted that with
regards to the firearms possession charge, the question of whether the
defendants used a semiautomatic assault weapon was not presented to the jury.[163] The circuit court acknowledged that the
United States Supreme Court had recently held that under the statute at issue,
the distinction between types of firearms were elements of separate crimes and
not just sentencing factors.[164] This, the appellate court stated, meant that
“the question of whether a firearm is a semiautomatic assault weapon must (1)
go to the jury, not the judge, and (2) be proven beyond a reasonable doubt.”[165]
Instead
of submitting that issue to a jury, however, the appellate court decided that it
would decide whether the submission of the question to the jury would have
resulted in a different outcome.[166] The court examined the evidence introduced
at the trial and found that:
“one of the Loomis Fargo guards testified at
trial that one of the robbers was carrying an AK-47. The robbers twice told the guards they had AK-47 rifles, and
AK-47 rounds were found at some of the defendants’ homes. One of the robbers claimed that his weapon
could shoot through cement, and an FBI firearms instructor testified that an
AK-47 round is capable of penetrating cement.
The FBI firearms instructor also testified that the weapon in the
photograph of [one of the defendants] was an AK-47. He further testified that an AK-47 can operate either as a
semiautomatic or as a fully automatic weapon.
In light of this evidence . . .[we do not] find any miscarriage of
justice.”[167]
This sort of fact finding assessment by the court is not only a
gross intrusion upon the role of the jury, it also runs counter to courts’
rationalization for using acquitted conduct at a criminal defendant’s
sentencing. As mentioned previously,
courts have expressed the belief that jurors often make decisions based not on
the evidence, but rather as the result of lenity or a lack of comprehension of
the judge’s instructions. Thus it seems
strange that an appellate court could determine how a jury would decide a case
based solely on evidence never considered by a jury.
CONCLUSION
There
is no question that a separation of duties between a judge and a jury is
necessary in both civil and criminal cases.
Throughout all phases of a case, a judge is called on to make numerous
legal determinations. The majority of
these rulings are made in order to ensure a fair trial for both sides.[168] For example, a judge might exclude evidence
or witnesses that were not disclosed to the other side. The well-known hearsay exception also works
to ensure fairness, since out of court statements cannot be cross-examined.[169] Obviously, it makes no sense for a jury of
laymen to make these legal determinations.
Equally
illogical, though, is the practice of having a jury make (or attempt to make) factual
determinations, only to have those determinations overruled or undermined by a
judge. After all, if the judges are in
better position to make these decisions, why submit them to the jury in the
first place?
No
doubt, some will argue that this practice is no different than appellate courts
overruling trial courts. However, it is
openly acknowledged that the court systems in this country, both state and
federal, are structured in a hierarchical fashion. We recognize, for example, that the United States Supreme Court
is ‘above’ the Eleventh Circuit court, just as the Eleventh Circuit is ‘above’
the district courts in Florida. Once we
accept this hierarchy, we accept the fact that the Eleventh Circuit may
overrule a district court.
This
rationale does not apply to the relationship between judge and jury. In the area of fact-finding, we do not view
the judge as being ‘above’ the jury. If
we were to accept such a framework, then obviously the right to be tried by a
jury--a right that James Madison called one of “the most valuable” in the Bill
of Rights[170]--would be
of little value.[171]
The
current mistrust of juries by judges can be rectified in two ways. The first is to eliminate the jury system
altogether. As mentioned, many people
have already advocated for this, arguing that modern trials are often too
complex or too easily manipulated by creative attorneys. Some abolitionists also argue that the prime
motivation behind the jury system—preventing government tyranny—is not
applicable in modern America as it was in ancient Greece.
A
second option is to take steps to address the concerns judges seem to have in
the above areas. For example, some
courts now give a detailed Allen-like charge--informing jurors of the
repercussions of a retrial--before deliberations begin, but accept the
jury’s word when deadlocks occur. With
regard to punitive damages, courts could do likewise—inform juries upfront as
to the consequences of large punitive damage awards—but then accept whatever
award is given. Other steps might help
judges have more faith in the jury’s ability to understand the law. One idea is the use of ‘special juries’ that
require jurors in more complex cases to have a minimal amount of formal
education or equivalent experience.
This idea was given support in a 1987 poll in which a majority of
federal and state court judges reported that jurors with less education had
more difficulty dealing with cases involving highly technical or scientific
evidence.[172]
[1] As will be seen in the discussion of tort reform, this mistrust may originate from the legislature as well as the judiciary.
[2] It can be argued that the Federal Rules of Evidence mandate the exclusion of character evidence; however, as will be seen, the exclusion only occurs after the judge conducts his own balancing test that is very subjective.
[3] Paula DiPerna, Juries on Trial, at 22 (1984). Given that the jury system has existed in at least some form for approximately 2400 years, a comprehensive account of the history of the jury system is well beyond the scope of this note.
[4] John Guinther, The Jury in America, at 2 (1988)
[5] DiPerna, supra note 3, at 23.
[6] Id.
[7] Id.
[8] Guinther, supra note 4, at 2.
[9] DiPerna, supra note 3, at 24.
[10] Id.
[11] Id.
[12] Id. at 25.
[13] Id.
[14] Id.
[15] Id.
[16] Id. at 26.
[17] Id. at 27.
[18] Id.
[19] Id.
[20] Id.
[21] Id.
[22] Id. at 28.
[23] Id.
[24] Id.
[25] Id. at 25.
[26] Id.
[27] Guinther, supra note 4, at 31.
[28] Id. at 32.
[29] Id.
[30] Charles T. McCormick, Handbook of the Law of Evidence, at 340-41 (1st ed. 1954).
[31] Federal Rule of Evidence 403.
[32] Chris William Sanchirico, Character Evidence and the Object of Trial, 101 Colum. L. Rev. 1227 (2001).
[33] See Donald A. Dripps, Relevant But Prejudicial Exculpatory Evidence: Rationality Versus Jury Trial and the Right to Put on a Defense, 69 S. Cal. L. Rev. 1389 (1996).
[34] See Jane A. Kalinsky, Jurors at the Movies: Day-In-The-Life Videos as Effective Evidentiary Tool or Unfairly Prejudicial Device?, 27 Suffolk U. L. Rev. 789 (1993).
[35] Kenneth J. Melilli, The Character Evidence Rule Revisited, 1998 Brigham Young Univ. L. Rev. 1547 (1998).
[36] 335 U.S. 469, 475-76 (1948).
[37] 413 Mich. 298 (1982).
[38] Id. at 304.
[39] Id. at 305.
[40] Id.
[41] Id.
[42] Id.
[43] Id.
[44] Id.
[45] Id. at 306.
[46] Id.
[47] Id.
[48] Id.
[49] Id.
[50] Id.
[51] Id. at 307.
[52] Id.
[53] Id.
[54] Id. at 327.
[55] Id. at 318.
[56] Id. at 323.
[57] Id. at 325.
[58] Id. at 326.
[59] Studies have shown that the single best predictor of future violence is past violence. See William Monahan, Predicting Violent Behavior: An Assessment of Clinical Techniques 92, 104 (1981).
[60] For example, the Eleventh Circuit has approved the following language for use in its Allen charge in the context of criminal cases: “If a substantial majority of your number are in favor of a conviction, those of you who disagree should reconsider whether your doubt is a reasonable one since it appears to make no effective impression upon the minds of the others. On the other hand, if a majority. . . of you are in favor of an acquittal, the rest of you should ask yourselves again. . .whether you should accept the weight and sufficiency of evidence which fails to convince your fellow jurors beyond a reasonable doubt.”
[61] 164 U.S. 492 (1896).
[62] Id. at 501-02.
[63] Id.
[64] 270 Ga. 834 (1999).
[65] Id.
[66] Id. at 835.
[67] Id. at 838.
[68] Id. at 839.
[69] Id. at 837.
[70] Id.
[71] Id. at 848.
[72] Id. at 846.
[73] 484 U.S. 231, 233 (1988).
[74] Id. at 234.
[75] Id.
[76] Id.
[77] Id. at 235.
[78] Id.
[79] Id.
[80] Id. at 238.
[81] Id.
[82] 2001 WL 967910 (6th Cir. 2001).
[83] Id.
[84] Id. at *1.
[85] Id.
[86] Id.
[87] Id.
[88] Id. at *6.
[89] 562 F.2d 567 (1977).
[90] Id. at 568.
[91] Id. at 569.
[92] Id. at 570.
[93] Id.
[94] Id.
[95] Id.
[96] It is true that at the time he gave the Allen charge, the trial judge did not know what verdict the majority was in favor of. Nonetheless, it is certainly not illogical for a juror, upon hearing the trail judge ‘side’ with the majority, to believe that the correct result is fairly obvious, and thus likely the one more people are in favor of.
[97] Paula L. Hannaford, How Much Justice Hangs in the Balance? 83 Judicature 59, 65 (1999).
[98] See Richard H. Menard, Jr., Ten Reasonable Men, 38 American Criminal Law Review 179 (2001).
[99] David M. Gold, Trial by Jury and Statutory Caps on Punitive Damages: Lessons for Alabama from Ohio’s Constitutional History, 31 Cumb. L. Rev. 287 (2001).
[100] Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 2001 WL 501732 (2001).
[101] Id.
[102] Ala. Code Ann. §6-11-21 (1999); Alaska Stat. 58 §9.17.020(f)-(h) (1999); Colo. Rev. Stat. §13-21-102(1)(a) (1998); Conn. Gen. Stat. §52-240a (1999); Fla. Stat. Ann. §768.73(1)(b) (2000); Ind. Code Ann. §34-51-3-4 (1999); Kan. Stat. Ann. §60-3701 (1998); N.J. Stat. Ann. §2A:15-5.14 (2000); N.C. Gen. Stat. Ann. §1D-25 (1999); N.D. Cent. Code §32.03.2-11(4) (1999); Okla. Stat. Ann. Tit. 23 §9.1 (1998); Tex. Civ. Prac. & Rem. Code Ann. §41.008 (1999); Va. Code Ann. §8.01-38.1 (1999).
[103] John G. Salmon, Fifteen Years of Colorado Legislative Tort Reform: Where Are We Now?, Colorado Lawyer, February 2001, at 11.
[104] Id.
[105] Id.
[106] Id. at 12.
[107] Liebeck v. McDonald’s Restaurant, 1995 WL 360309 (D. N.M. 1994).
[108] BMW of North America, Inc. v. Gore, 646 So. 2d 619 (Ala. 1994).
[109] BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996).
[110] BMW of North America, Inc. v. Gore, 701 So. 2d 507 (Ala. 1997).
[111] See National Law Journal, Sept. 6, 1999, at A4.
[112] Stephen Daniels & Joanne Martin, The Impact That It Has Had Between People’s Ears: Tort Reform, Mass Culture, and Plaintiffs’ Lawyers, 50 DePaul L. Rev. 453, 463 (2000).
[113] It is of course true that a jury is meant to represent the feelings of a specific community rather than the nation as a whole.
[114] Daniels & Martin, supra note 84.
[115] Id. at 467.
[116] Id.
[117] Id. at 468.
[118] Id. at 472-73.
[119] It should be noted that these studies looked at total awards, not just punitive ones. They do however reflect juries change in feelings about monetary awards, which presumably would apply to punitive damages as well.
[120] Daniels & Martin, supra note 84, at 473.
[121] Id. at 480.
[122] Neil Vidmar & Mary R. Rose, Punitive Damages by Juries in Florida: In Terrorem and in Reality, 38 Harv. J. on Legis. 487 (2001).
[123] Id. at 512.
[124] Id. at 499.
[125] Id.
[126] 2001 WL 501732 (2001).
[127] See Bradley S. Stern, Innocent Until Proven Not-Guilty? The Use of Acquitted Conduct at Sentencing in Michigan Courts, 3 T.m. Cooley J. Prac. & Clinical L. 329 (2000).
[128] United States v. Watts, 67 F.3d 790 (9th Cir. 1995)
[129] Id. at 793.
[130] Id.
[131] Id. at 796.
[132] Id.
[133] Id. at 797.
[134] Id.
[135] Id.
[136] Id. at 798.
[137] United States v. Watts, 519 U.S. 148 (1997)
[138] Id. at 155
[139] Id. at 157
[140] 435 Mich. 443 (1990)
[141] Id. at 452
[142] Id. at 452
[143] United States v. Putra, 78 F.3d 1386 (9th Cir. 1996)
[144] 519 U.S. 148 (1997)
[145] Id. at 150.
[146] Id. at 150-51.
[147] Id. at 163. Because Putra was a first time offender with no criminal history, the punishment range was based entirely on the immediate offense(s).
[148] Id.
[149] Id.
[150] 527 U.S. 1 (1999).
[151] Id. at 6.
[152] Id.
[153] Id. at 7.
[154] Id. at 19-20.
[155] Id. at 16.
[156] Id. at 31.
[157] 192 F.3d 210, 221 (1st Cir. 1999)
[158] Id.
[159] Id.
[160] Id. at 222.
[161] 229 F.2d 292 (1st Cir. 2000).
[162] Id. at 297.
[163] Id. at 306.
[164] Id.
[165] Id.
[166] Id. at 307.
[167] Id.
[168] A judge of course may also make ‘administrative’ rulings, such as limiting the time allowed for opening statements or imposing certain requirements on briefs submitted to the court.
[169] It can be argued that the hearsay exception is no less based on jury mistrust than the character evidence rule. This assertion is inaccurate. Second-hand (and third-hand, etc.) accounts of what occurred in the past tend to be less accurate than first-hand accounts, and, as mentioned, cannot be cross-examined. Thus it is the evidence that is mistrusted, not the jury. Statements about a defendant’s past, even if acknowledged to be true by both sides, are still subject to exclusion; thus the character evidence rule is based solely on a mistrust of the jury to properly consider the evidence.
[170] See Jose Anderson, The Burden and Benefits of the American Jury, 34 Md. B. J. 30 (2001)
[171] In fact, even recognition of the judge as being ‘above’ the jury would not support the appellate review analogy. If a judge is deemed to be ‘above’ the jury, then the continued existence of the jury is pointless since both the judge and jury hear and see the evidence at the same time. Appellate courts, of course, cannot simultaneously see and hear all the trials in all the courts that are ‘below’ them, and thus trial courts must make the initial determinations that are subject to later review.
[172] Graham C. Lilly, The Decline of the American Jury, 72 U. Colo. L. Rev. 53 (2001).