CL _1.3 The Jury System (Part 1).pdf

- Straightforward rental agreement containing an “exculpatory clause” (in the UK, reference is more commonly had to an “exemption clause”). Case issue: Was the exculpatory clause contained in the Bicycle Rental Agreement valid? Holding: Yes, it was valid. Questions 1. Before which tr...

- Straightforward rental agreement containing an “exculpatory clause” (in the UK, reference is more commonly had to an “exemption clause”). Case issue: Was the exculpatory clause contained in the Bicycle Rental Agreement valid? Holding: Yes, it was valid. Questions 1. Before which trial court was this lawsuit filed? Federal court, US district court of Colorado 2. Which court delivered this judgment? 10th Circuit court of appeal. 3. On what basis did these courts have jurisdiction? Diversity of citizenship, there is no federal question. 4. What law governs this case? Colorado law, no federal law, except the civil procedure. Substantive law governed by Colorado law. 5. What factors were taken into consideration to assess the validity of the exculpatory agreement? 4 factors in paragraph 13. 6. Are they all developed in the case given? Paragraph 13. 7. What arguments did the plaintiffs put forward to uphold their claim that the exculpatory clause was ambiguous? Subrogation argument: couvert par une société d’assurance. The agreement does not talk of subrogés, so he uses this main argument. BUT the court says that it does not work, the words of the exculpatory agreement are unambiguous, it concerns everybody, and subrogation is not an independent claim. Conclusion: The Court of Appeal reviewed all four factors of consideration to hold that the exculpatory agreement was “enforceable as a matter of law” – not able to claim anything against Vail Holdings, Mincin lost. 1.3. The Jury System After a possible “pre-trial conference” (in complicated cases), and absent a “contract of settlement”, the trial begins. Main issues involve (A) the jury, (B) rules of evidence, and (C) the verdict. A. The Jury Three types of juries i. Trial jury (right protected under U.S. Constitution, Article III, section 2, cl.3 + the Sixth, Seventh and Fourteenth Amendments) → jury of 12 people, ii. Grand jury (right protected under the Fifth Amendment to the US constitution) - 23 people, the role is to indict (indictment - mise en examen du prévenu). Indictment decided by these 23 people and the defendant, and its counsel is not there. There is only the state attorney that will present elements to the grand jury. Based on a probable cause (standard for the grand jury’s indictment = probable cause to believe that the defendant accused of X). iii. Jury of inquest or coroner’s jury (held in cases when the death was violent or unnatural, took place in prison or police custody…: not adversarial in nature and no formal allegations or pleadings: a mere fact-finding exercise)  Dividing line between law and facts: the judge decides the law, and the jury decides the facts!!!!!! Principle issues concern (a) the “right” to a jury trial, and (b) jury selection.  a). Right to a Jury Trial – have a look at the constitution in the annexes. Deeply rooted in the Common law, from the Magna Carta to the U.S. Constitution (several hiatuses: the “Star Chamber” supplanted jury trials from the 15th through the 17th centuries – Henry VII, abolished by Charles II). We will see the distinction between the right to a jury trial in criminal cases (6th Amendment) and the right to a jury trial in civil cases (7th Amendment). 1). Criminal Cases Right protected under U.S. Constitution, Article III, section 2, cl.3 and Sixth and Fourteenth Amendments. By way of reminder (supra), the constitutional doctrine of Barron v. Baltimore (1833) provided that rights protected in the first ten amendments only applied to cases heard in federal court. There is the civil war some years after Barron v. Baltimore. Because of this case, and the civil war, we have the adoption of the 6th and 14th amendment. Vast majority of criminal cases based on state law and in state courts varying practices concerning the boundaries of the right to a jury trial (ex: Louisiana). States determine what they think about this, do what they want about it.  Bill of rights says that 6th amendment does not apply to states, it is written in it. FORCE CONTRAIGNANTE QUE POUR L’ÉTAT FÉDÉRAL. Clarity Brought in 1968: SCOTUS, in Duncan v. Louisiana, 391 U.S. 145 (1968). Facts: Gary Duncan, an African American, was found guilty of assaulting a white boy (battery – coups et blessures volontaires). In Louisiana, simple battery is a criminal offense punishable by imprisonment for up to two years and a fine – he could risk it for slapping the person, the boy on the elbow; but Duncan was sentenced to 60 days in prison and fined $150. Duncan’s request for a jury trial was denied by the Louisiana trial court – requested a jury trial, 6th amendment to the constitution. Appeal to the Louisiana Supreme court that affirmed the trial court judgement. He then went before the SCOTUS: he wanted the jury trial. Issue: was the state of Louisiana (defendant) obliged to provide a jury trial in criminal cases such as Duncan’s? Does the 6th amendment apply at the state level? Holding: YES, he was entitled to a jury trial. SCOTUS, Justice Byron White: “a crime punishable by two years in prison is a serious crime, and not a petty offense. Consequently, appellant was entitled to a jury trial, and it was error to deny it”. The 14th amendment guarantees the right to a jury trial in all criminal prosecutions for serious crimes, including those before state courts. Right to a jury trial is a fundamental right that should be incorporated against the state through the 14 th amendment due process clause. - Why is this case important? What is the added value of this case? The SCOTUS here INCORPORATED THE 6TH AMENDMENT, the right to a jury trial, THROUGH THE 14TH AMENDMENT TO APPLY IT (6th) TO THE STATE. This is a fundamental right. ARRÊT DE DÉCENTRALISATION: ON LAISSE AUX ÉTATS CE QU’ILS VEULENT, mais il faut quand meme respecter the due process clause, une procédure régulière. - The Scotus will use the 14th amendment to say that the first 10 rights also apply at the state level → doctrine of incorporation. - Est-ce que the 6th amendement s’applique d’amblée aux états ? La cour dit qu’on va le faire de manière selective, only the fundamental rights will be incorporated. If the right is  fundamental, then it will apply to everybody: at the federal level, and also the STATE LEVEL → so the right of a jury trial in criminal cases is fundamental. The added value of the Duncan case was that it determined that a right extended by the Sixth Amendment with respect to federal criminal proceedings was also protected against state action by the Fourteenth Amendment (Due Process Clause): “Because we believe that trial by jury in criminal cases is fundamental, we hold that the Fourteenth Amendment guarantees a right of jury trial in all criminal cases which - were they to be tried in a criminal court - would come within the Sixth Amendment’s guarantee” (Justice White) → Duncan case is important, because it says that the right to a jury trial is fundamental and must be respected. The SCOTUS effectively incorporated the Sixth Amendment right to a jury trial and applied it to the States → states like Louisiana can’t deny jury trials in criminal cases, because it is a fundamental right.  Caveat! Today, not all rights protected in the first ten amendments have been incorporated. For exemple, the rights to bear rights was incorporated in 2010 (concerns everybody now) → selective process of incorporation that is not done today. What do we mean by serious? Which criminal penalties are “serious” enough to require a jury trial? For the SCOTUS, there is a presumption. “Offenses for which the maximum period of incarceration is six months or less are presumptively petty (you do not have a right to a jury trial in this case, when it is a petty offense). A defendant can overcome this presumption and become entitled to a jury trial only by showing that additional penalties [such as fines and community service] viewed together with the maximum prison term, are so severe that the legislature clearly determined that the offense is a serious one”: Blanton v. City of North Las Vegas, 489 U.S. 538 (1989, 9/0) → presumption that can be overcomed (réfragable, on peut prouver le contraire si on peut prouver à la juridiction qu’il y a d’autres formes de punition qui sont des indices de cette sévérité). Petty offences: no jury trial, but if we prove that it is a severe offence, we have the right.  Petty offences (small offences, infractions), misdemeanors (summary offences), and felonies (very serious offences) → Three categories of penal offenses in criminal law. See also U.S. v. Nachtigal, 507 U.S. 1 (1993), per curiam. Facts: a DUI offence, a man who was driving under the influence of alcohol. He was put on probation for five years. Epilogue on Jury Trials in Criminal Cases We saw the jury system in the US. In the UK, it is limited. Right to a jury trial in criminal cases: federal level with the constitution, but the right existed at the state level: Barron v. Baltimore, the 6th amendment to the US constitution only applied to the federal level, and not the state level. 1) There is a right to a jury trial: how many people will compose the jury? Size matters. Ballew v. Georgia: at the state level, no requirement to have 12 jurors but a state criminal trial by a jury of less than six members violates the accused’s right to a jury trial as protected by the 6th and 14th Amendments (for Justice Blackmun, small juries foster poor group deliberation and increase the risk of jury error – below 6 people, there is not really a deliberation, there will be a problem) 2). Margin of appreciation: Apodaca v. Oregon, 406 U.S. 404 (1972), the SCOTUS held that state court juries don’t need to be unanimous to reach a non-capital verdict (departure from the federal rule that requires unanimity) → in the federal courts, you need unanimity. At the state level, if you don’t have capital crimes (death penalty), you don’t need a unanimous verdict. Highly split decision: 5 votes for Oregon, 4 votes against. Until recently, only two states, Oregon, and Louisiana, allowed convictions by non-unanimous votes. This was overruled in a case concerning Louisiana. Ramos v. Louisiana, decided on April 20, 2020 (6/3) overturns Apodaca (revirement). What can we derive from this case? Lessons: - 1) 6th Amendment requires a unanimous verdict to convict a defendant of a serious offense - 2) We have a right incorporated though the 14th amendment. In other words, 14th Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict against the states.  He is interested in the dissent by Justice Alito defending the rule of precedent: Alito argued that stare decisis requires following Apodaca and that in overruling that case, the majority “cast aside an important and long-established decision with little regard for the enormous reliance the decision has engendered.” Dobbs V. Jackson, two years later, SCOTUS overruled Roe v. Wade, Alito is the one who arguments that overruling is okay – Alito’s approach to the rule of precedent is selective, he uses when the rule of precedent suits him lol. - Incorporation is still an issue; it is still ongoing (right to bear arms incorporated in 2010). Notes from the video, https://www.youtube.com/watch?v=VIH26MeGz_M : Facts: Ramos was convicted for a non-unanimous verdict for the murder of a woman. Issue: Is it unconstitutional to convict him without full unanimity of all jurors? Holding: Yes, it is. The Court ruled that the non-unanimous jury verdicts used in Louisiana and Oregon were unconstitutional. Discussion: 6th amendment does not specific says that it has to be unanimous, it does not explicitly mention unanimity, but the Supreme Court has held that various rights and protections under the Bill of Rights, including those in the Sixth Amendment, are applicable against the states through the Fourteenth Amendment's Due Process Clause.The Bill of rights applicable against the federal government also applies against the states. The issue here is the apodaca case: a provision of the bill of right was applied against the state in a different manner it applied to federal. Here 9 justices agreed that it should be applied in the same way: 5 said that unanimity was never required, 4 said that unanimity is always required. Unanimity was required against the federal, but not against the state (Justice Perrel). In Ramos case, Louisiana said that SCOTUS should not reconsider Apodaca, Louisiana allowed non-unanimous jury verducts. In the eend, Apodaca was overturned. 2). Civil Cases Right to a jury trial is here protected under the Seventh Amendment. This right to a jury trial was never incorporated in civil cases!!! It is not considered to be a fundamental right, so states can decide if there is the right to a jury trial or not. for SCOTUS, right to a jury trial in civil cases is not a fundamental right states can determine the extent to which (if at all) defendants being sued for civil wrongs (breach of contract, negligence…) must be afforded the opportunity to have the case decided by a jury. Other issues: most notably (i) (in)existence of a complexity exception, (ii) the wording of the Seventh Amendment; (iii) the right to a jury in civil commitment proceedings i). Complexity Exception concerning? Do we have a complexity to the right to jury trial under the 7th amendment? A problem is so complex to understand that you don’t want to give it to the jury. There are certain cases that are complicated for 12 laid persons to decide. Can you give a good verdict if they do not understand a single word of what is said? Can a bench trial (trial of judges, there are only judges) take place? The case is so complex that it can be removed from the purview of a jury and decided only by a (group of) judge (bench trial). SRI Int’l v. Matsushita Electric Corp. of America, the U.S. Court of Appeals for the Federal Circuit (remember we have 12 circuits, the 13th circuit is the federal circuit – US court of appeals). Facts: Intellectual property rights concerning a patent brevet, the judgement is delivered by the court of appeal at the federal level. Issue: is there a complexity exception? Holding: Here the federal court says that there is not a complexity exception in this case: tension between the 7th amendment (right to a jury trial) and the 15th amendment (right to due process – droit à une procedure légale regulière). Si les jurés ne comprennent rien quant aux problèmes de brevet techniques, est-ce que les droits de la personne sont réellement protegés ? The supreme court gets involved: Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996) → for these complex issues, we may recognize that there is an exception. For the SCOTUS (unanimous judgment), not all issues occurring within a jury trial are necessary jury issues (e.g. construction of terms of art, like a patent claim. This should remain within the scope of professionals, there are some sort of complexity exceptions). Markman Hearings: a specific claim interpretation. Claim construction hearings, i.e. claim interpretation growing sphere of civil litigation from which juries are excluded. ii). Wording of the Seventh Amendment Part of the 7th amendment that is relevant in this course: “In suits at common law, […] the right to a jury trial shall be preserved […]”. Two issues of this phrase: A. “Suits”: we mean a lawsuit, but what does it mean? B. “At common law”: what about equity? a). “In suits” New Deal FDR, the president launched the American economy that was in the geat depression at the time. Roosevelt mobilized the whole country in infrastruction projects. In doing this, the new deal spawns a good 30 federal administrative agencies → état regulateur, creation of these agencies that regulate economy. The federal state is so important on the economic domain. - We have public rights cases with the emergence of these administrative agencies: these cases oppose citizens and the federal state, with the exception of criminal law. These decisions will be reviewed by ALJs: administrative law judges that deal with the decisionos of these administrative agencies. Precedent of Atlas Roofing v. OSHA (1979, 8/0): SCOTUS, the Seventh Amendment right to a jury trial in civil cases does not prevent an agency from bringing enforcement actions before an administrative forum that does not use a jury → not speaking of criminal law. Here he’s saying: do we have the right to a jury in these administrative cases? NO, these administrative cases do not constitute suits, no need to request a jury (it will likely be denied, because it is not a suit, un procès). SEC v. Jarkesy, argued before the SCOTUS on November 29, 2023 (opposite George Jarkesy): Facts: Jarkesy is responsible d’un hedge fund (fond d’investissement). He lied about the value of the funds he was dealing with; he was dishonest. He was brought before the SEC (securities and exchange commission). The court was brought before the administrate law judges, but he was sentenced by these judges. He said that he was denied a jury trial. The court of appeal to the 5th circuit upheld his claim; held in favor of Jarkesy. They think that his right to a jury trial was denied. SEC appeals before the SCOTUS: the decision will be delivered in any days now. What do we mean by “in suits”? Does it include the cases delivered by the administrative judges? Yes, it does. “At common law” There is something missing: it does not say “and equity”. The 7th amendment does not mention equity. The distinction between common law and equity comes even at this level. 1791, US ratification of 7th Am; in England it was the other date (Judicature act 1873-85). You can create a new equitable right in England, but you need to prove its ancestry before the Judicature act; BUT in the US we have another date: 1791, the adoption of the Bill of rights. - US borderline cases: to determine whether the right to a jury trial exists in a given civil case, a court must refer to the division between law and equity as it existed in 1791 - the date the Seventh Amendment was ratified in the bill of rights. By way of reminder, at the state level, a dual system of law and equity (with separate administrations) was taken up in most of the states which founded the USA (save Pennsylvania). Most of the states which were later admitted to the Union did not take up the distinction. Some states still administer law and equity separately: Alabama, Arkansas, Delaware, Mississippi, and Tennessee. Merger between law and equity began in New York in 1848. Procedure in the federal courts was assimilated in 1938 (Federal Rules of Civil Procedure FRCP). Occasionally, in some rare cases, parties will have to determine if the right they are defending is a common law right or an equitable right. If they look for a common law or an equity remedy. Exemple: Collective Bargaining Trade union (syndicat). Chauffeurs, Teamsters, & Helpers Local No. 391 v. Terry, 494 U.S. 558 (1990), (6/3), http://supreme.justia.com/us/494/558/ Facts: the case concerned a lawsuit brought against a trade union for breach of duty of fair representation – members du syndicat assignment leur syndicat en justice (by failing to pursue the plaintiffs’ rights granted under a collective bargaining agreement – they were not getting proper wages, better health care benefits…). They wanted the trade union to defend their rights. The action presents both equitable and legal issues: the unionists wanted a trial by jury, they complain about the breach of duty of fair representation (equitable element), but they also requested compensatory damages. The trade union said no, because they were asserting an equitable law. The unionists talk about the breach of duty of fair representation, so the trade union said that this is similar to the trust, breach of the duty of a trustee: then it belongs to equity and not common law.  7th amendment says that you have jury trial in common law, but unionists talk about duty of representation (equity) and seek damages (common law). Issue: were the respondents entitled to a jury trial, under the Seventh Amendment, on their claim for monetary relief? Damages are a common law remedy. Holding: Yes, the members of the trade union are entitled to a jury trial because they seek damages (a common law remedy). The majority opinion found the action to be analogous to the equitable action against a trustee for breach of fiduciary duty (despite the fact that in 18th century England, collective bargaining was illegal). It nevertheless found a right to a jury trial (plaintiff sought compensatory damages, i.e. “legal” relief) 7th amendment: still not a fundamental right for civil cases. In suit at common law: not equity. a). “In suits” and “at common law” b). Jury Selection, two main questions: - 1). Venire: random selection of jurors from the community (voter registration, tax-payer lists, driver’s license records, public utility bills…). There are several exclusions and people are not on the jury (if you don’t speak English, you’re excluded, if you’re not 18 y.o., if you’re deprived of civic rights...); and “hardship” excuses. - 2). Voir Dire: mechanism to ascertain whether potential jurors have bias that would preclude them from serving on a jury (voir dire = “to speak the truth”, or “to see them say”). In many jurisdictions, the judge conducts a cursory voir dire in open court, where the judge asks the jurors, as a group, a series of broad questions about the case, like:  Does anyone feel they can’t be fair and impartial toward the defendant? Like the trial against Trump, he is a polarizing figure. Jurors say yes, and they are dismissed by the court.  “Does anyone know the plaintiff or the defendant?”  “Has anyone ever been involved in a lawsuit like this one before?”  “Does anyone work in law enforcement or have a relative who does?” In state courts, lawyers themselves may concentrate on issues involved in the case. - Prejudices regarding issues involved in the case (e.g. drug use, capital punishment…) - Prejudices of negativity regarding groups of people relevant to the case (e.g. racial prejudice, homophobia…). Lawyers (assisted by “jury consultants”) occasionally develop a supplemental juror questionnaire (SJQ) to learn more about prospective jurors (increased reliance on psychological and sociological research on juror attitudes) – at the state level, research on jurors ‘attitude: Possible Outcome of the voir dire: Requests for Exclusion ➔ Challenges for Cause are UNLIMITED: each party/ lawyer can dismiss a juror for a specific cause (“I don’t want this person because he is not impartial” …). Controversial use in capital cases (death penalty cases): jurors who state they are unequivocally opposed to the death penalty are normally removed from the jury. They are removed from cause ( “tribunal organized to return a verdict of death »:). For the SCOTUS, this would not violate a defendant’s right to a fair trial under the 6th and 14th Amendments: Lockhart v. McCree, 476 U.S. 162 (1986), dissent by Justice Thurgood Marshall: fair cross section of the community, even if you remove all people opposed to death penalty. ➔ Peremptory Challenges Both sides may remove a number of jurors unconditionally, without any rationale whatsoever (ex: removing someone because from a X neighbor against my cause, no need to give a specific reason): - In civil cases, see 28 U.S.C. §1870: each party has 3 peremptory challenges. - In criminal cases, see Rule 24 of the Federal Rules of Criminal Procedure  Each side has 20 preemptory in capital cases.  10 preemptory in criminal law cases, the prosecution has 6 preemptory. Also, we have the problem of “purging” entire segments of the population: the jury representativeness diminished (for ex we have juries with only white people). For the SCOTUS, race cannot be used in criminal cases as a basis for striking jurors without cause (under the Equal Protection Clause of the 14th Amendment): Batson v. Kentucky, 476 U.S. 79 (1986, 7/2): the prosecutors did not want black on the jury. During jury selection, the prosecutor used peremptory challenges to strike all four prospective African American jurors. Kentucky said that this is conspicuous, there is not a reason to dismiss them. They have discriminatory proposals. In a 7-2 decision, the Supreme Court ruled in favor of Batson. The Court held that the Equal Protection Clause prohibits prosecutors from using peremptory challenges to exclude potential jurors solely on the basis of race. Flowers v. Mississippi, Facts: Flowers committed a crime, convicted of murder. Six trials where he was facing a white-only jury. Issue: Case before SCOTUS on whether the Mississippi Supreme Court erred in how it applied Batson v. Kentucky Holding: it is discriminatory, it is used in a systematic way. These race-based considerations, they have to comply with the equal protection clause of the 14th amendment. Argued March 20, 2019. Decision June 21, 2019 (7/2 ruling in favor of Flowers). ➔ Gender-Based Peremptory Challenges? 14th amendment: equal protection also concerning gender consideration. E.B. v. Alabama, 511 U.S. 127 (1994, 6/3) Facts: paternity action brought by a mother against James E. Bowman. She wanted child support. The prosecutor for the state of Alabama uses nine of his ten peremptory challenges to remove men from the panel so the jury was composed of twelve women. The jury finds Bowman to be the father of the child in question and the court orders him to pay child-support. Issue: does the SCOTUS’s decision in Batson preclude gender-based peremptory challenges? Holding: Yes, it does. You don’t have to have a reason for preemptory, but you can’t have gender/ sex-based reason. Extension of Batson to gender discrimination. For Justice Blackmun, “[w]e recognizes that whether the trial is criminal or civil, potential jurors, as well as litigants, have an equal protection right to jury selection procedures that are free from state-sponsored group stereotypes rooted in, and reflective of, historical prejudice” (+ 3 scathing dissenting opinions) Discussion: general problem of reconciling peremptory challenges with the guarantees of the Equal Protection Clause of the 14th Amendment. See end of Scalia’s dissent Parties After seating the jury, the judge usually provides an orientation to the case: the judge will provide jury instruction. - The lawyer for the plaintiff proceeds with an “opening statement”au début de l’affaire → narrative of the evidence to be offered in plaintiff’s case (possible responsive opening statement by the lawyer for the defendant). The opening statement presents evidence to the jury, not arguments!!! Not allowed to make argument, you’re just saying what the evidence will show, no evidence has been presented yet, so you can’t make arguments. - Testimony of witnesses, with “direct examination” and “cross-examination” - “Closing arguments” (or “summation”) - Verdict and judgment B. Evidence – skipped, he only said this: Issue mentioned supra (with respect to the “rule against hearsay”). What sources? Federal rules of evidence; evidentiary rules in the US constitution. C. The verdict: guilty or not guilty A defendant is found guilty by the jury beyond a reasonable doubt. In a civil trial, a person is held liable if you have preponderance of the evidence. 12 unanimous votes to reach this verdict: if you don’t have an unanimous verdict, you have a HUNG JURY (the trial will not proceed any further). Several key issues: ➔ a). Reaching the verdict - See the jury’s taking account of “jury instructions” and different standards of evidence. - The possibility of a hung jury: a jury that, despite, honest attempts, is unable to reach a verdict by the required voting margin possible mistrial: e.g. trial of Bill Cosby, Curtis Flowers → if one person does not agree, there is no verdict of guilty, BECAUSE IT IS AN UNANIMOUS VOTE. ➔ b). Damage Awards In civil cases, when the verdict is given in favor of the plaintiff in a jury trial, the jury then awards damages (“unliquidated damages”) → damages are set for in an agreement between parties. An award of “compensatory damages” is designed to make the claimant “whole” for a loss which he/she has incurred from the defendant’s conduct (to provide restitution for the claimant loss) - US civil law (law of torts), existence of punitive damage (It exists in rare cases in the UK): sometimes, additional damages are awarded to the claimant to punish the defendant and deter him and others from similar conduct in the future: these are “exemplary”, “punitive” or “vindictive” damages (synonymous terms). Deterrent effect: you want to punish the defendant for his conduct, and you want to deter the defendant in engaging to similar conduct (reprehensibility: you want to punish that person, engage in a deterrent effect). Various applications of punitive damages:  Infamous wrongful death, civil suit of O.J. Simpson. After being found liable for the murders of Nicole Brown Simpson, his wife, and Ron Goldman, O.J. was ordered to pay $8.5 m in compensatory damages to the Goldmans, and an additional $25 m in punitive damages to split between the Goldmans and Nicole’s children.  Alex Jones (“Infowars”): in Oct. 2022, a Connecticut jury ordered Jones to pay plaintiffs $965 million for lies told about the Sandy Hook shooting, including that the massacre was a government-engineered “false flag to take guns away from American citizens. On Nov. 10, 2022, the judge ordered Jones to pay an additional $473 M in punitive damages (covering attorneys’ fees and plaintiffs’ civil rights under the CT Unfair Trade Practices Act).  The $3 Million Cup of Coffee, “Granny Liebeck” Facts: she was in the backseat of the car; she spills hot McDonald’s coffee on her leg and was severely burned. Case that went to trial in 1994 (after McDonald’s refused a $300,000 settlement): the jury awarded the plaintiff $200,000 compensatory damages and $2.7 million punitive damages (reduced by the judge to $640,000). To be balanced against the egregious conduct of McDonald’s (they refused the initial settlement, was not honest), the elderly woman’s medical condition, and ensuing positive side effects. 1). Can we put Due Process Limits to Punies, punitive damage? Due process clause: you can’t be deprived of rights (life, liberty, property) without of a fair process. If you condemn someone of millions of dollars, what balance can we find behind this discretionary award of punitive damages and the due process clause? - Beginning in the 1980s, fear of a litigation crisis, caused by out-of-control jury verdicts that were unfair to corporations, medical professionals, and other defendants: is it an excess? - Lobbies, pressure groups: under pressure from U.S. Chamber of Commerce and the American Tort Reform Association. Their policy was to put caps (plafond) on the amount of punitive damage that the jury could award. It moves to win over popular opinion and adopt punitive damages caps in Congress and state legislatures.  Success of this lobbies IN THE 90’ FAILED, IT DID NOT WORK → Limited legislative success. BMW v. Gore (1996), (5/4) Facts: bmw car, purchaser upset because the car was repainted, saying that it deals with falsification. A car buyer sued BMW because they sold him a new car that had been repainted without telling him. Here the trial court imposed $4.000 compensatory damages, $2 million punitive damages: the ratio is 500% between these sums. This is a very famous case because it sets three guideposts → three guideposts for punitive damages in the US: - 1) The reprhensability of the defendant conduct : was the defendant acting in a bad way? Taking advantage of the plaintiff? - 2) Ratio between compensatory damages and the punitive damages : there must be some ratio. This case speaks abourt proportionality. SCOTUS here says that the ration 500:1 is a bit too much, it is a huge ratio. - 3) Comparaison with similar civil cases in the state The Fourteenth Amendment's due process clause prohibits states from imposing grossly excessive punishments on tort-feasors. Here, the punitive damage’s excessive nature was indicated by the 500 to 1 ratio between the jury’s punitive and damage awards, the relatively insignificant amount of damage (the repainting job was insignificant), and the lack of statutory fines that remotely paralleled the award’s magnitude. BMW’s due process rights were violated because it could not have possibly anticipated, nor did it receive fair notice, that it might face such a severe punishment. State Farm v. Campbell (2003), (6/3), he said that it is REALLY important, wink wink. Facts: car accident. A non cautious driver Campbell decided to pass six vans, then a car comes from the opposite direction (the driver freaks out), there is a collision. One person was killed, and another one was disabled. The driver Campbell that passed the six vans was unscratched. State Farm Mutual Automobile Insurance Company contests liability and takes the case to trial, they say that they have things under control, that Campbell should not say that he is at fault. His insurance company brings the case to trial where the jury was severe. Campbell had to pay a lot of money; jury determined that Campbell was 100% at fault. Campbell loses, so he files a lawsuit against State Farm, his insurance company. The company acted in bad faith and fraud, intention infliction of distress. The jury awarded Campbell $2.6 million in compensatory damages and $145 million in punitive damages, which the trial court reduced to $1 million and $25 million respectively. The Utah Supreme Court reinstated the $145 million punitive damages award WTF. Issue: is such an award (when full compensatory damages are $1 million), excessive and in violation of the Due Process Clause of the 14th Amendment? Is this punitive damage excessive? Holding: yes, it is excessive (split decision of 6-3: dissents of Scalia, Thomas, and RBG). The SCOTUS held that the punitive award of $145 million was NOT reasonable, NOT proportionate to the wrong committed, and it was thus an irrational, arbitrary, and unconstitutional deprivation of the property of the insurer. Discussion: topical issue (to be expanded upon in the chapter on Tort law) ➔ First guidepost: reprhensability, page 20: opening statement - the lawyer will present the evidence to the jury. In this case, in presenting the evidence to the jury, you rebuke this nationwide practice. You want to condemn the insurance company: they are not interested in the nationwide conduct; they are dealing with the specificity of this one case. ➔ Ratio, p; 22: the supreme courts focus on the ratio and says that it is not a mathematical formula. They impose a guideline ratio, they’ve always been coherent about it, so they’re not going to impose a strict line, HOWEVER THE COURT DOES IT: State farm case - single digit multiplier (the compensatory damages can only be multiplied up to 9 → 1 to 9). Here the court takes these three guideposts and adds these two aspects to the case: - The reprhensability of defendant conduct, but NOT nationwide conduct, just the conduct specific to the case - State fam case : single digit multiplier ➔ Comparaison with similar civil cases in the state, p 23 : comparison between civil compensatory verdict and punitive damages in the state where the case is decided. Philip Morris (2007) (5/4) Facts: Jesse Williams died of lung cancer at age 67 (he smoked three packs of Marlboro cigarettes per day). His widow sued Phillip Morris, the maker of Marlboro cigarettes, alleging that the company had engaged in a deliberate, wide-spread campaign of misinformation on the dangers of smoking. The jury found for Williams and awarded her $821,485.50 in compensatory damages and $79.5 million in punitive damages. However, the trial judge found the punitive damages excessive and reduced them to $32 million. Issue: does due process permit a jury to punish a defendant for the effects of its conduct on non- parties? Holding: the injury inflicted to non-parties is not considered when awarding punitive damages. O’Gilvie v. United States, 519 U.S. 79 (1996), (6/3) Facts: Woman dies of toxic shock syndrome leaving her husband and 2 children. They get punitive damages. It is said that it is taxable. The SCOTUS says that punitive damages fall into the gross income, not the net income. Punitive damages do not compensate injury but are private fines to punish and deter reprehensible conduct. Punitive damages are taxable. c). Jury Nullification Jury nullification is “a mechanism, and a defense, that allows the jury, as representatives of the community, to disregard both the law and the evidence and acquit defendants” → if the jurors think the law is wrong or unwise, they do not use it. Jury nullification exists in UK and in the US to disregard the law and evidence. Jury nullification is applicable in criminal cases.  Principal applications: assisting runaway slaves, Slaves helped to go to the North, but then caught and tried (the jury would then say that they do not care about the fugitive slave law, THE JURY IS SETTING ASIDE THIS LEGAL PROVISION AND THE EVIDENCE AND LET THE SLAVES BE FREE.  Prohibition: could not sell alcohol until 1933, until this was denied.  “Mercy killings” to escape the suffering: person guilty of murder but the jury acquits them because they murdered out of compassion.  Possession of pot to relieve pain: possessing Marijuana (personal consumption of pot, no jury would condemn someone on it United States v. Dougherty, 473 F.2d 1113 (D.C. Cir. 1972) Facts: the “D.C. Nine” commit burglary and malicious destruction of property (Dow Chemical Company). There, napalm is produced (gas sprayed over Vietnam during the war and it killed a lot of people) and they want to protest against it. Issue: should a judge in a criminal case be required to instruct the jury about the concept of jury nullification and, in addition, allow defense counsel to argue this issue to the jury? Should the judge tell the jury that they can acquit the defendant, regardless of evidence and the law? Holding: No, there should be no requirement. Lawyers should not argue it before the jury either. Discussions: arguments used to justify why the jury should not be informed of its nullification prerogative: - 1) Par 9: This would simply encourage/ invite chaos. - 2) Par 10: this will alter the way the jury works. The jury knows its prerogatives. – teacher said that it is a weak argument. Not really good, because it is not explained how the jurors would know these prerogatives. - 3) Par 11: giving too much discretion to the jury is not good, because we will not know what they will do (again, weak argument). - 4) Par 12: if you tell expressly the jury that they have a nullification prerogative, this will give the jury the role of the legislator of the judge. This is a burden on the jury’s psyche.  Note the partial dissent of Chief Judge Bazelon: this is bullshit to him. He was very critical on what the court of appeal said. Recent application in England: jury nullification is called in England jury equity. High court (King’s Bench), April 22, 2024, HM Solicitor general v. Trudi Warner Facts: This woman held a sign in front of the crown court writing: “jurors, you have the absolute right to acquit a defendant according to your conscience”. Holding: the high court justice said that she did nothing wrong. She did not speak to the jurors; she just held a placard. There is no contempt for the high court. Similar in this case where six activists were throwing paint on a building: they were acquitted. d). Review by the Judge: Remittitur and Additur ➔ Remittitur (Latin, to send back, remit): if the jury verdict seems excessive, a trial court may order a reduced damage award (with the plaintiff’s consent), (irrespective of obvious legal errors) - This is what happened in BMW v. Gore ($50,000) - Four criteria found by the Ohio Supreme Court in Chester Park v. Schulte, (1929) - Some States deny the availability of remittitur completely: ➔ Additur: the courts may increase the damage. A judge may enter a “judgment notwithstanding the verdict” (JNOV) in civil cases – the jury says one party is right, but the judge says that he will deliver his judgement in favor of the other party lol, because there is not enough evidence against the loser (this does not happen often, rare): - Judge may challenge a “guilty” verdict in criminal cases (rare) – can’t be set aside or appeal. - Possible to order a “new trial” (rare) Not developed further  Conclusions: Closing the Courthouse Doors Largely carried out through “judicial gatekeeping” that concerns: 1. The construction of class action certification is used to prevent class actions from proceeding (supra) + CAFA (class action fairness act, the defendant corporation can remove the class action from the states courts (more generous) and give it to federal courts). 2. SCOTUS limiting ATS lawsuits (supra): alien torts statutes suits. 3. SCOTUS setting aside “notice pleading” with the Twiqbal standard (supra): a new pleading standard, where you prove the plausibility of your suit (a lot of details). Cases seen in this chapter: - Duncan v. Louisiana - Chauffeurs, Teamsters (right to a jury trial in suits in common law and equity, sometimes not easy to determine because you have borderline cases), & Helpers Local v. Terry - Batson v. Kentucky - J.E.B. v. Alabama: gender based preemptory challenges. - State Farm Mut. Automobile Ins. Co. v. Campbell - US v. Dougherty: jury nullification. Rappel: 6th amendment incorporated though 14 to apply it against the state (criminal cases). In civil cases, it is not really a fundemdental problem. Complexity exception and jury trial. 2.1. Constitutional Law Two issues: A. Power and B. Rights A. Power Power is a cardinal principle of US Constitutional law (≠ Germany, Switzerland, or Canada): the federal government and the state governments are co-equals, each sovereign. This means: a) two levels of government. b) a corresponding apportionment of powers. c) the supremacy of the federal level of government a). Two Levels of Government 51 systems of government (50 states + the federal). By way of reminder, one of the most important “decentralizing” decisions with respect to the role of the states in the nation's governance was Barron v. Baltimore (1833), in which the U.S. Supreme Court decided that the Bill of Rights (first ten amendments) had not been intended to apply upon the state governments.