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Procyon B: Although in this circumstance, I think the holding was correct in that evidence of a juror’s reliance on racial animus in their decision to convict a defendant, I am vehemently opposed to the use of surveillance in jury deliberations. I believe that the Court should take pains to be as clear as possible in communicating the circumstances in which it should be allowable to accept testimony about the internal deliberations of the jury. I believe that a surveillance is impermissible in every situation and will have a chilling effect on the honest discussion and deep consideration that are integral to the jury process. I can certainly see a scenario in which the institution of surveillance to capture even very targeted issues within the deliberation process may quickly give way to a slippery slope reality. I am very sensitive to the door this would open to allow the courts to take further control of the process, even at some point potentially evaluating whether a given matter was given the “appropriate” consideration. Given that I believe strongly that an increased power of oversight would have the result of chilling speech for particularly marginalized jurors and reduce the likelihood of the jury’s usage of such powers as jury nullification.
Mercury: I do believe that there should be more oversight over the jury. Where, following trial, it is determined that the jury was biased, that the conviction be overturned. I would broaden this beyond just racial basis. For example, in the case of Charles Rhines, he was sentenced to death after some of the jurors said they thought that as he was gay he might enjoy a life sentence served in a men’s prison and thus it would not be a sufficient punishment. To me this is unacceptable and underscores the arbitrary nature of our jury system. While on the one hand, I think Courts should not be surveilling jurors to determine competence - just as it would be highly subjective and difficult to determine what qualifies as “competent” in each case. - I believe that where there is discrimination on the basis of a protected status, that we should absolutely intervene into the Jury’s otherwise black box. I think this limited intervention is has clearly proscribed boundaries and thus while an intrusion into the blackbox, limited and certainly in my mind justified.
Callisto: Surveillance of the jury is entirely inconsistent with Fed. R. Evid. 606. I worry about (1) how surveillance would erode the jury's sovereignty and undermine public faith in the jury system; and (2) the potential effects that surveillance would have on deliberating juror's inclination to be truthful and forthcoming. Like the Supreme Court in Tanner, I think preserving public confidence in the jury system requires working to hide some of the unfortunate examples of juror behavior, and that, on balance, preserving the jury system is well worth that cost.
Centaurus A: I am against surveillance in the courtroom for several reasons. Firstly individual jurors may begin to censor what they truly believe in order to protect themselves from outside criticism (while this may seem like a positive, since we want people to take responsibility for their stances, I could imagine how an individual worried of political consequences could take a pro-prosecution or defense stance that wasn’t supported by the evidence). Second, psychological studies have shown that this type of review of a juror’s decision can make them feel like they need to “please” someone with their decision or deliberation in this case the most likely candidate is the judge — this can lead to some skewed and misinformed decision making. Finally, the purpose of the cameras could be replaced by having jurors testify under oath and having the judge make a decision as to whether there is sufficient evidence to declare a mistrial and hold a new trial. Furthermore although having a camera can be useful to making this decision, at the end of the day what matters is not exactly what was said but how it affected the other jurors, if the other jurors felt coerced by one juror’s racist sentiments then that is enough to bias a jury and taint a decision beyond salvaging.
Celestis: While I feel that that cameras in the courtroom would provide significant benefits in situations in which it is necessary to corroborate that a jury member acted inappropriately (e.g. made it clear that they are voting based on the defendants' race), I ultimately feel that the chilling effect that would be present by the camera outweighs the potential benefits. I think a lot of this comes down to my belief that I don't trust the government not to look at the tapes in situations in which they shouldn't, and I also don't trust them to keep the tapes secure from actors outside the government who may want to embarrass a potential juror or put them in harms way for arguing for or against a defendant.
Vorash: I'm worried about surveillance undermining open deliberation. I think that concern outweighs my worries regarding accountability.
Lantea: Jury room surveillance is the best way to ensure that the fidelity of jury deliberations comports with social-legal standards of justice. The jury should not be able to nullify an individual’s constitutional rights, because of bias by a juror or jurors. By taping and preserving deliberations for 30 days, where only the judge and the attorneys have access to the recording, in a controlled environment (can not be duplicated), the court will create an expectation of fair deliberation. That the surveillance may deter some ideas from being expressed is a feature, not a bug. Already, the social constraints of the room prevent individuals from expressing ugly, extralegal bias. The surveillance merely heightens the appeal for civic duty to the constitution. If we favor invalidating a jury where numerous jurors swear affidavits that an individual was biased in his argument, why not have better objective evidence for the judge in making the decision of invalidation?
Hoth: Surveillance in the jury room is a troubling idea, and it creates the specter of government overreach. However, if the concern is that there is racial animus driving decisions and that we are willing to impeach a jury, we either should be willing to allow the judge to do a hearing to know if an allegation is true or problematic. If not, the only way to ensure fairness is to use a camera… although this means that we have to trust that the judge/court will use surveillance only for this purpose. If you don’t trust jurors, then you have to be willing to pierce into the blackbox and encounter the troubles it raises.
Montecalvo: I think I would rather not have surveillance cameras in the jury room. While I recognise that there are advantages to doing so, namely, facilitating the effective resolution of factual disputes in the face of difficult, conflicting claims, I think the potential for such surveillance to so significantly alter the quality of the discussions outweighs those benefits. As the court in Pena said, it is difficult to see how the jury can withstand efforts to perfect it and, unless the problems of jury mischief are so rife, I would rather incline to the view indeed that the perfect is the enemy of the good.
Wolf 359: My initial gut reaction to surveillance in the jury room is negative, but I realize that I cannot come up with reasoning as to why. When I think about it more, I do not see the big problem with placing surveillance in the jury room as long as the use of the surveillance is limited to when issues of "protected classes" such as race, sex, etc. are brought to the attention of the judge by members of the jury.
P3X-888: I am more indeterminate on the issue of jury surveillance. Would defendants be able to look back at the tape whenever they want to and appeal their convictions based on what went on in the jury room? Would the defendant have to show cause in order to view the tape? What kind of access would a prosecution have to the tape? The latter question is especially troublesome for me in the context of juror nullification. As shown in Luisi, where a judge dismissed a juror for cause because he refused to follow the law “as instructed,” would a prosecutor have access to the tape and be able to get a juror that is engaged in juror nullification dismissed? The problem is that it seems like courts want jury nullification to be quite “hush hush,” with jurors not being explicit about what they are doing.
Triangulum: I am opposed to jury surveillance. It opens the door to far too many questions about the jury system. It also undermines the jury's independence and threatens their ability to debate without fear or being scrutinized or their words becoming public. If fairness is such a concern, and we truly believe that a jury cannot act in good faith, it makes more sense to do away with the jury system entirely.
Ghelibol: I think the costs on free deliberation are too great to allow for surveillance in the jury room. The advantages of surveillance are fairly obvious. Judges (and perhaps the parties) would be given an accurate record of the statements made in the jury room such that challenges to improper practices (e.g. racially-charged remarks, perhaps juror intoxication) could be more effectively made and defended against. Jurors, knowing they are being recorded, might also be less willing to say the sorts of statements we do not want them saying. The problems with surveillance are less obvious, but in my opinion, more substantial. Jurors are going to be afraid to speak their minds. No forum more so than a criminal courthouse gives one the impression that his or her actions can be made punishable at the whim of an official. To be in a courtroom, even as a spectator, is to be at the mercy of the judge and his or her court officers. It is purposefully an oppressive space set on maintaining order. The background threat of another juror asking for a statement you made to be brought before the judge would ensure jurors take an abundance of caution before sharing a controversial idea. Included in this idea blockade would be the sorts of ideas most all of us agree we don’t want shared -- racial, ethnic, and other improper bases for adjudging someone guilty (as mentioned above). Other ideas, such as accusations that the police in the case were corrupt, are not going to make their way into the jury room for fear that they will leave that same room. This risk is particularly great in small communities. Another risk to consider is the effect having a record would have on juror's willingness to change their minds. Societally, we have a strong aversion to people who espouse their beliefs only to later change those beliefs. Jurors knowing they have made statements on the record may entrench them against changing their position -- a decision made in pursuit of consistency, not the merits of the case which have now come into clearer focus. This effect would be particularly strong after watching a case in which attorneys attempt to impeach witnesses based on their own inconsistent statements made on the record.
Saturn: Surveillance changes the nature of deliberation, and it should not be in the jury room. It likely will not uncover any untoward motivations of jurors because they will adapt their reasoning, and conceal the true motivations behind their statements. Rather, it will likely encourage them to grandstand more against other jurors, to be mindful of the prying eyes of others, and to feel greater pressure to conform their rulings to public opinion. The jury is sovereign and is the ultimate arbiter of fact in the criminal trial. It should not be placed under the microscope, thus rendering its verdicts more vulnerable to judicial assault.
Milky Way: Surveillance in the jury room is extremely concerning and will likely lead to jurors not having the open and free discussion that they would without surveillance. However, given the rise of the technology and the perpetual "threat" of being taped/recorded/posted for behavior in public (And even private places) - I think that jurors will likely already not truly share their own beliefs for fear of being recorded or havin g their words used against the later. It is similar to the fact that every student at HLS who wants to have a career on politics NEVER, EVER takes a stance or says anything in class. Everyone is too scared to be recorded, written about, or have their current words used against them in the future in their political careers.
Triton: When you observe someone's behaviour, you also change that behaviour. Social Scientists have struggled with it for years - the question is whether it would be a good change or a bad change. I think it would probably ultimately be bad.
Orilla: I’m of two minds. I generally disfavor state surveillance. When you’re being watched, it’s the watcher who decides when you’ve done something wrong. If any of us were surveilled constantly, we’d be a criminal. On the other hand, I believe that you might fairly be considered a state actor when you’re a juror. And the consequences of jury decisions are so important that it makes sense to have cameras to be checked when there are credible allegations of impropriety.
Ban Ard: Jury deliberations are a violation of our rights and ensure that people will be pressured and paranoid into making statements and decisions that do not actually reflect them, it will result in very unfair trials and will make it harder to obtain justice. I do not think the recorders would do anything wrong but rather it is the fear of being recorded.
Eadu: I couldn't think of many scenarios where the use of surveillance would be harmful; however, I do think it would have a chilling effect on conversations in the jury room. When you know someone might be listening, you change the way you communicate. You aren't as vulnerable. Flipping sides again, I'm not sure those kinds of conversations occur anyway without surveillance. I think it wouldn't be terrible as long as there really were strict rules around looking at the tape.
Andromeda: Surveillance in the jury room is an interesting proposition but I am generally against it. An obvious con is that the jury process is traditionally and appropriately closed because it allows jurors to think and speak about the evidence, community standards, and their own beliefs without fear of outside influence or repercussion. However a pro could be that surveillance in the jury room could allow an insight into the unfair or prejudice decision making of the juries which could insight a closer look at the voir dire process.
Uranus: My reaction to surveillance camera in the jury room is negative. I think it will further prevent ordinary people from wanting to be a juror (people already try to get out of their jury duty). I think a surveillance camera will not only harm a free debate but also pose security risks.
Naboo: I do not believe surveillance cameras belong in the jury room; the presence of such devices would corrupt the jurors’ ability to speak candidly with one another out of fear of facing repercussions in the event that they say something the court deems unsavory. Jurors represent a check on the judicial system. And policing their behaviors undercuts this critical function. I am skeptical whether the issue in Pena is a frequent one, and even if it is, I am skeptical whether such language would actually corrupt other jurors.
Earth: I’m no proponent of a panopticon; nonetheless, the jury box is not some ineffable institution to me. It is prone to, and infected by the very same biases, historical legacies, misbeliefs and misperceptions that color American society, and indeed, have done so form its inception. If we are to aspire to the lofty ideals enshrined in the 6th Amendment, no matter how consistently and repeatedly we fall short, we must rip form our collective conscience the evils that pervade our society. A jury beholden to gratuitous foibles and fears is no jury of our peers.
Sullust: The issue of surveillance is a tricky subject in Pena. You want to ensure defendants are receiving a trial free of racial animus, yet you want jurors to be free to speak freely about what matters to them without fear. We may worry that such fear my change the nature of the debate in the jury room and thus the outcome. I think that so long as the ability of the jury to be second guessed is limited to race issues (and this is strictly enforced), we may be able to strike an acceptable balance between these concerns.
Dakara: I don't feel that strongly about surveillance in the jury room. Surveillance does not usually inhibit bad behavior, but it can capture it and prove that it existed.
Mygeeto: I’m opposed to all measures that extend state power, and consequently state violence, into people’s lives so I would be against surveillance in the jury room. The high risk of state reprisal particularly against jurors of marginalized groups as well as the risk of more punitive state policy in response to the surveillance is far too great. Moreover, such a decision would likely result in the removal of jurors engaging in jury nullification. The deficiencies of these measures to problems of racial bias suggest the entire system should be abolished.
Ban Ard: Don't let this distract you from the fact that if you or a loved one has been diagnosed with mesothelioma, you may be entitled to financial compensation.
Cloud City: In quantum mechanics, there is always an effect whenever a variable is measured by an outside observer. The same principle holds true for jury deliberations. However, while on its face, one would hope to avoid such interference with the functioning of a jury, perhaps the solution is to observe jury deliberations without the jury's knowledge.
Arcturus: Surveillance ensures that criminal and civil defendants are protected. Admittedly, I'm more concerned with the impact on criminal defendants who are at risk of losing their liberty physically and mentally. Surveillance would ensure that jurors only consider relevant facts, rather than their own ideas of justice. In some cases, we see the very worst of jurors. We see jurors spewing racial hatred and not paying attention at trial. That should not happen when someone's liberty is on the line. Surveillance is a necessary thing, even when it may stunt discussion.
Luna: Surveilling juries is unwise and impractical. It’s unwise because of the immense power it gives, or at least risks giving, to the state. Juries are one of the last institutions preventing the state from abusing its power, and surveillance defeats the whole purpose of the institution. It’s impractical because surveilling juries will not be feasible and will consume too many judicial resources. The bottom line is jurors are not very competent on average, and surveillance would allow attorneys to find errors in nearly every case, making any factual determinations nearly impossible. The solution to this, of course, is not to continue hiding jury errors, but to make the default mode of trial a bench trial in which the judge is required to explain his or her factual determinations using the record. Jury trials should remain in some form so as not to put too much power in the hands of the judiciary – perhaps for certain charges, or in other circumstances at the request of the defendant. But judges are superior to juries if you can somehow keep institutional checks in place. Maybe juries should be an appellate mechanism to review factual determinations of judges, rather than a first line of defense.
Cloud City: @Vorash: What good is open deliberation if it doesn't protect the rights of the accused? The point of a jury is to arrive at a just outcome and if surveillance promotes this, then "open deliberation" be damned.
Pinwheel: @Cloud City: I would absolutely disagree with observing jury deliberations without the jury's knowledge. State surveillance is not something that should be imposed onto the public any more than it already is.
Luna: @lantea you underestimate the extent to which surveillance would stunt legitimate conversation and not just illegitimate. Moreover, you ignore the cost of handing the state and the judiciary such power. More importantly, though, what is the point of having a jury if we are going to surveil them? Surveillance defeats the "democratic" purpose of a jury to such an extent that we may as well not have them in its presence. The massive amounts of errors that would become clear from surveillance would make it obvious we should move to a bench trial system.
Mygeeto: um I think everyone else's response is premised on the legitimacy on the criminal legal system and its various components, in this case, the jury so..I'm categorically opposed to criminal punishment and it is evident to me that all efforts to reform what is inherently a white supremacist, violent system will fail--police body cameras are actually a great example of this, studies have shown that not only have they not resulted in accountability for police misconduct, police departments have been incredibly non-transparent about the footage and have used it against defendants, so all that exercise did was give more power and resources to the state to cause harm.
Moon: @Luna. The state always has power. Perhaps, juries check the state for some. However, I find it hard to believe that many communities of color or low income communities would agree with the idea that juries are protecting them. Regarding practicality and infeasibility, I believe there are ways to make it feasible. Perhaps, all jury discussions are recorded, and they are only reviewed when a juror recommends that a judge review it. In a balance of the rights of the accused and stunting juror discussion, I'm more in favor of protecting the rights. Any refusal to consider the reallocation of resources seems to me to be a willingness to not protect individual citizens' rights.
Procyon B: @Mygeeto: you right
Mercury: @uranus But is free debate based on racist, homophobic or sexist ideology valuable in any context?
Sullust: @Wolf359 I would be worried that it would be impossible to limit the impact of surveillance to only impacting the use of discrimination in the jury room. I think it might chill debate generally.
Celestis: @Arcturus - I feel that, in arguing for surveillance of the jury, you are assuming that the state's interest is always always aligned with the defendant, or with justice. In many cases, the jurors may feel a pressure to reach the result the state favors, for fear of prosecution themselves. All that being said, one thing I've been thinking about during this discussion is that, if there is surveillance, to address the concerns I just raised, it would be necessary to instruct the jury that, while they are being filmed, they will face no consequences for what they do (even if they spew racist hate, they would not be personally liable - it would just affect the consequence of the trial). I think that instruction, as we've discussed, could create more unpredictability
Vorash: @banard I think that arguments could be made to the exact opposite effect about jury deliberation. I worry that in the absence of deliberation people might end up making snap decisions based on deep seeded biases that are often even unconscious. I think forcing people to discuss and rationalize their decision is a positive force. I think surveillance would have the potential to further force people to make decisions underpinned by reason and thus hopefully less prejudiced.
Triton: @Magic Dwarf: Why is that any worse than the current system? When we decide what is good or bad, we have to do it with the appropriate counterfactual in mind - not by comparing the proposed idea to our hypothetical ideal of what the best world would be.
Callisto: @Lantea while it's certainly true that other social factors will constrain the jurors during deliberation, I think your response does not answer the question of why post-trial testimony of the jurors would be insufficient to capture the limited set of concerns that surveillance would be used to capture. Moreover, I think your analysis discounts the ways in which jurors will likely misapprehend the purpose of surveillance, and might conform their deliberations to the expectations of the judge and lawyers rather than use their independent judgment. The jury's sovereignty in decisionmaking is its most essential attribute.
Eadu: @Triton: Maybe I am too cynical about jury deliberations today, but a change in behavior might be what jury deliberations need to more effectively administer justice. Serving on a jury is a mundane experience that people actively seek to avoid. Knowing that there is the possibility of review, which I do believe should be constrained and safeguarded heavily, will promote people to take the job of a juror seriously. There is a maxim, "act like you would if you knew someone was watching." If jurors know there is a possibility that someone may watch in the future, they aren't going to callously come to a rushed verdict. I think they'll take their job seriously. I think this would only benefit defendants.
Centaurus A: @Lantea I think I disagree with your commentary because there is a risk that, in order to please the overseers of the recorded footage, the jury may transform their deliberations in more noxious ways. For example if they perceive the government or overseers of the recorded footage to favor the prosecution they may have a prosecution bias. If they believe the public reviews the footage then they may vote the way they feel the majority of the public would. This removes the decision from the hands of a randomly selected jury and puts it in the hands of whoever we imagine would oversee the data from the surveillance cameras or whoever the jury believes would review this data. If that is something we want then this is acceptable. But if we believe that juries (although flawed and in need of adjustments -- being made more representative, being given better instructions etc.) are an institution worth preserving then we should not have surveillance.
Wolf 359: @Callisto If anything, I believe that surveillance in the jury room would improve public confidence as oversight of those in a position of power tends to do. Also, I do not believe that surveillance would censor valid debate in the jury room. I think it would censor remarks that should not be made in the jury room (i.e. racist comments) and promote dialogue about the merits of the case.
Triangulum: @Wolf 359: While I generally favor your limited surveillance idea, I have trouble justifying limiting review to only certain issues, which is why I have a problem with surveillance. There are countless ways that a jury could be biased or fail to do their duty responsibly. It is hard to ignore those flaws and only focus on certain issues in my opinion
Hoth: @Earth Fair enough to say that there are legacy issues that continue affect how we act as a society and the fairness -- to an extent -- of the justice system. However, I don't understand, then, how you ultimately come out on the issue of whether there should be surveillance. You may have points in critiquing American society in general and pointing out that the jury system will never reach "perfection." But, really, what system can be perfect? Would an ever-watchful eye that presumably is manned by the biased state be better? Would protecting jurors without supervision be wise? We can critique a lot, but what's the solution?
Orilla: @Ghelibol, I'm not sure that surveillance will actually do much to affect jury behavior. If footage is only reviewable for instances of racial bias, then it might stop some jurors from expressing that bias. I have no problem with that. But even that is an open question. I feel like there are a lot of empirical claims being made here about the effect of surveillance that we can't back up.
Lantea: @Triangulum, I agree with you that surveillance opens many questions into how juries make decisions and may cause us to confront a lot of troubling reality about how juries improperly reason, make human, cognitive errors (e.g., in applying a law, or calculating damages), and that it may expose direct bias. But I think you go too far -- if juries are, too often, acting in bad faith, it does not necessarily mean that we have to do away with the system -- rather, than there needs to be greater focus on civic engagement. It has not always been the case that Americans have had zero interest in public life, or serving on juries. Why not have higher expectations for our civic duty, and help to educate citizens more effectively?
Ghelibol: @Lantea Whose social-legal standards of justice? Who writes the book from which we take the topics not to be discussed? Would a juror be able to share a belief that the defendant was only arrested because he is black, or does that trigger one of the impermissible topics? "Already, the social constraints of the room prevent individuals from expressing ugly, extralegal bias." Who decides what ideas are ugly? How much must we infantilize jurors?
Saturn: @Lantea I would suggest that surveillance's tendency to deter jurors from expressing unpopular ideas is a significant defect because it would encourage jurors to obfuscate their actual motives for a position, and instead cloak their opinion in socially-acceptable language. Further, while the 11 other members of the jury do impose their own social constraints on the 12th member, the jury usually enjoys a certain level of intra-jury trust. They individuals tend to spend a great deal of time with one another, and go through a host of collective experiences that build trust and candor. Just because a racist cannot explicitly express their racism does not mean they are not a racist. It is only more likely that the racist will obfuscate their true motivations.
Athos: @Arcturus: I agree that finding that jurors are spewing hatred and not paying attention at trial is unacceptable, but your argument raises two questions for me: (1) How should determinations be made in less extreme cases, and (2) What is the role of advocates in this system? For the first question, should a court of appeals be desigining a 4-part test for racial animus? Do we really believe this will work? For the second part, is a judge accustomed to sentencing people really the best person to be safeguarding a defendant's liberty?
Sateda: Dakar’s — do you suggest we apply a “you know it when you see it” standard to determine what kind of language counts?
Triton: @Mygeeto : I'm not sure everyone actually thinks the system is legitimate just because they're engaging in a debate about differences between systems. I think it's a reasonable point of view that you can have two different systems, both illegitimate and fundamentally harmful, but one of which that is far worse than another (see: history). Not sure that you would agree with that, but just putting it out there that other people here might.
Abydos: I think the idea that you’ll catch a significant number of instances of racism etc. by surveillance in the jury room is erroneous. Most people in 2019 who are racist and wish to push for a conviction on the basis of their bias would never admit it outright, instead, motivated by their bias they would strongly push for conviction usuing the cover of alternative reasons. Despite the lack of positives coming from surveillance, you would run the risk of chilling debate , however.
Gors Velen: I saw a guy today at Starbucks. He had no smartphone, tablet or laptop. He just sat there drinking his coffee. Like a psychopath.