Thursday, January 23, 2014

Peremptory Challenges

Picking a jury is an important moment in a lawsuit. The jurors will decide the outcome of the case, but jurors are not legal professionals, and they come to court with the full array of biases and prejudices that exist in the world.

In most cases, the lawyers for the parties to the lawsuit will be able to ask prospective jurors some brief questions in a process called voir dire. The judge will remove anyone who says that they are biased, but with their fates in the hands of inexperienced strangers, litigants often worry that one or more potential jurors might harbor a bias that is not expressed.

For this, the law allows each side in a lawsuit a fixed number of peremptory challenges. A peremptory challenge is the right of a party to a lawsuit to remove a potential juror without giving a specific reason.

For the parties, peremptory challenges can help them feel more confident that their case will be decided based on the evidence and not bias or prejudice.

But peremptory challenges come with a cost. First, it is not clear that parties can reliably predict who is biased and who is not, and therefore, it may be the litigants who are relying on their own biases and prejudices to exclude fair-minded people from jury service .

Second, to accommodate peremptory challenges, courts must call more potential jurors to make sure that after each side exhausts its challenges, enough people remain to fill out the jury. This wastes the time of people who wouldn’t have to be called to jury service if the courts didn’t need the extra bodies to use up the parties’ the peremptory challenges.

California is now considering reducing the number of peremptory challenges in some criminal cases. Currently, for felony cases, the prosecution and the defense each get 10 peremptory challenges, and for cases involving punishment by death or life in prison, each side gets 20.

For misdemeanors in California (cases where the potential punishment is one year in jail or less), under current law the prosecution and the defense each get 10 peremptory challenges, the same number as for felony cases. The San Francisco Chronicle reports that California is considering reducing the number of challenges for misdemeanor cases from 10 to five.

Potentially, this small change could save a lot of money. According to the San Francisco Chronicle:

The California Judges Association, SB794’s sponsor, says it would save at least $1.2 million a year for the courts and $30 million or more for prospective jurors, their employers and their communities by reducing the number of jurors called for service and the time they spend in court. About 1.5 million Californians report for jury duty each year.

Prosecutors and defense attorneys, however, are united in their opposition to the move. They believe that fewer peremptory challenges would mean more biased juries.

Peremptory challenges are controversial because it is not clear whether they really reduce bias or rather simply waste money and people’s time. If California goes through with the reduction in peremptory challenges, it will be very interesting to see what effect, if any, it has on misdemeanor trial results.

Friday, January 10, 2014

Reasonable Suspicion

Liam Dillon at Voice of San Diego has an illuminating article on when the police can and can’t pull you over when you’re driving:

The cops can pull you over when they believe you’ve done something wrong….

The technical term for this is that police have to have “reasonable suspicion” you’re violating the law. Reasonable suspicion has no precise definition, but it has to be something supported by a collection of facts and not just an officer’s hunch. An officer witnessing you swerving could be reason enough to pull you over for a minor vehicle code violation – or to check if you’re drunk. An officer not liking the color of your car would not count.

The legal system is riddled with questions like what constitutes “reasonable suspicion.” The legal test is framed in abstract terms but must be applied to specific facts and circumstances. In many cases, this leaves drivers and police officers guessing as to when reasonable suspicion exists and when it doesn’t—at least until a court rules on the situation and gives definitive guidance.

Thursday, January 9, 2014

Same Word, Different Meanings

One of the fundamental challenges people face in understanding and applying the law is that the same word can mean different things to different people. Eugene Volokh has an excellent post today about how Abraham Lincoln in the midst of the Civil War made this very same point.

Everyone is for liberty, but not everyone agrees what liberty is. In Lincoln's day, some people thought liberty meant freedom of slaves from bondage, but others argued that liberty meant the freedom to hold slaves if they wanted.

Here is what Lincoln said:

The world has never had a good definition of liberty, and the American people, just now, are much in need of one. We all declare for liberty; but in using the same word we do not all mean the same thing. With some the word liberty may mean for each man to do as he pleases with himself, and the product of his labor; while with others the same word may mean for some men to do as they please with other men, and the product of other men’s labor. Here are two, not only different, but incompatible things, called by the same name — liberty. And it follows that each of the things is, by the respective parties, called by two different and incompatible names — liberty and tyranny.
The shepherd drives the wolf from the sheep’s throat, for which the sheep thanks the shepherd as a liberator, while the wolf denounces him for the same act as the destroyer of liberty, especially as the sheep was a black one. Plainly the sheep and the wolf are not agreed upon a definition of the word liberty; and precisely the same difference prevails today among us human creatures, even in the North, and all professing to love liberty. Hence we behold the processes by which thousands are daily passing from under the yoke of bondage, hailed by some as the advance of liberty, and bewailed by others as the destruction of all liberty.
Words are often more ambiguous than most of us realize. Debates and disagreements over the meaning of words can lead to conflict, sometimes violent conflict, and sometimes, as in Lincoln's day, a long and bloody civil war.

Wednesday, January 8, 2014

Take Constitutional Law from Yale Law Professor Akhil Amar

Yale Law School Professor Akhil Amar is one of the country's leading scholars on constitutional law, and he will be teaching a *free* course on Constitutional Law later this month. This is a great opportunity to learn from a leading legal mind. The course starts on January 24, 2014 and is distributed through Coursera. If you have time, you should consider checking it out.