Atlanta, 1973

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Atlanta, 1973
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Ballew v. Georgia435 US 223 (US 1978)
Georgia Code Ann. 26-2101 (1972)
Distributing Obscene Materials Material is
obscene if considered as a whole, applying
community standards, its predominant appeal is to
prurient interest, that is, a shameful or morbid
interest in nudity, sex or excretion, and utterly
without redeeming social value
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Ballew v. Georgia435 US 223 (US 1978)
Criminal Court of Fulton County
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Ballews Motion

1. Jury of 5 Constitutionally Inadequate to assess
   contemporary standards of the community as to
   obscenity. (Not Representative).
2. Sixth and Fourteenth Amendments require a jury of
   at least 6.

O V E R R U L E D
GUILTY
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Ballew v. Georgia435 US 223 (US 1978)
Supreme Court of Georgia
US SUPREME COURT
Williams v. Florida (US 1970) (6 Member Jury OK)
Court of Appeals of Georgia
Fulton Co. Crim Court
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The Problem with Williams v. Florida (US 1970)

• Rather than requiring 12 members, then, the
  Sixth Amendment mandated a jury only of
  sufficient size to promote group deliberation, to
  insulate members from outside intimidation, and
  to provide a representative cross-section of the
  community.

• Although recognizing that by 1970 little
  empirical research had evaluated jury
  performance, the court found no evidence that the
  reliability of jury verdicts diminished with
  six-member panels.

The Majority on Williams, from Ballew at 230.
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The Problem with Williams v. Florida (US 1970)

• Rather than requiring 12 members, then, the
  Sixth Amendment mandated a jury only of
  sufficient size to promote group deliberation, to
  insulate members from outside intimidation, and
  to provide a representative cross-section of the
  community.

The Empirical Evidence that Size Doesnt Matter?

• Bald assertions and observations of court
  officials

• Misinterpreted Studies

5 to 1 ? 10 to 2

• Failure to Account for Representativeness

82 to 32
72 to 47
Michael Saks, Ignorance of Science is No
Excuse (1974)
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The Problem with Colgrove v. Battin (US 1973)

• Held that Six member juries were constitutional
  for Civil cases.

• Relied on Four Empirical Studies, but failed to
  critically evaluate the METHODS employed in those
  studies.

Michael Saks, Ignorance of Science is No
Excuse (1974)
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The Problem with Colgrove v. Battin (US 1973)

• Studies 1 and 2

METHOD Compare behavior of 6 and 12 member
juries in jurisdictions where litigants can
choose their jury size.
FINDINGS -No Significant Difference. -12 member
juries deliberate longer, award three times as
much damages, and require twice as much trial
time.
CONFOUNDING FACTOR Attorney Choice
Michael Saks, Ignorance of Science is No
Excuse (1974)
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The Problem with Colgrove v. Battin (US 1973)

• Study 3

METHOD Compare behavior of 6 and 12 member
juries in a jurisdiction where courts switched
from 12 to 6 member juries.
FINDING -No Significant Difference.
CONFOUNDING FACTORS Mediation Board created at
same time evidentiary rules change.
Michael Saks, Ignorance of Science is No
Excuse (1974)
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The Problem with Colgrove v. Battin (US 1973)

• Study 4

METHOD A true experiment Randomly composed
mock juries of 6 and 12 members watch a video of
the same case.
FINDING -No Significant Difference.
FLAWS (1)Tiny Sample Size (eight of each) (2)
College Undergrads only (3) Mock Case heavily
weighted to favor defendant.
Michael Saks, Ignorance of Science is No
Excuse (1974)
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The Courts Social Science Track Record on the
Jury Issue as of 1974
The Court currently believes the matter of
equality of performance for different-size juries
is now well established, when in truth there is
still no evidence to support such a conclusion.
The court and the respective advocates have
consistently failed to exercise the modest
expertise that oculd have prevented this
remarkable incompetence.
Simply an embarrassment.
Michael Saks, Ignorance of Science is No
Excuse (1974)
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Ballew v. Georgia435 US 223 (US 1978)
The Williams decision spurred a flood of
empirical studies. We have considered them
carefully because they provide the only basis,
besides judicial hunch, for a decision about
whether smaller and smaller juries will be able
to fulfill the purpose and functions of the Sixth
Amendment. (231 FN 10).
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1.Effective Group Deliberation
Lempert cites various studies, all tending to
suggest that progressively smaller juries are
less likely to foster effective group
deliberation. -The more jurors, the better
collective memory. -The more jurors, the more
likely biases will be counterbalanced and
overcome so an accurate result will be reached.
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2.Jury Accuracy and Reliability
Nagel and Neef Statistical study- As jury size
shrinks, Type I error (false conviction) rises
and Type II error (false acquittal) shrinks.
Weighing Type I error as 10x more important than
Type II, optimal jury size is six to eight. Five
has high Type I error.
Lempert 12 person juries reach extreme
compromises in 4 of cases 6 person juries reach
extreme compromises in 16 of cases.
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3. 4. Bias against Defense and Minorities
Zeisel and Lempert Studies Shrinking jury size
from 12 to 6 would cut the number of hung juries
in half. -Criminal Juries tend to hang with one,
but more likely two, jurors remaining
unconvinced. Having an ally makes it much more
likely a person in the minority will stand up for
his or her opinion. -If a minority veiwpoint is
held by 10 of the population, 28.2 of 12 member
juries will have no minority members 53.1 of 6
member juries will have no minority members- only
11 of 6 member panels would have two minority
members, as opposed to 34 of 12 member
panels. -The same numbers hold for minority
representation on the jury.
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5. Methodological Problems in Studying Jury Size
-Many studies use obvious/clear cases, so
difficult to tell if jury size had any
effect. -Aggregating data can mask Case-by-case
differences in jury deliberations Ex- Judges
hold for plaintiffs 57 of the time juries 59-
seemingly similar. However, case-by-case, judges
and juries disagree 22 of the time. -The
Michigan Study (3 from Colgrove) Average damage
award didnt vary much after the switch from 12
to 6 member juries. But Case-by-case, Damages
Standard Deviation was 58,335 for 6 member
juries and 24,834 for 12 member juries.
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Ballew v. GeorgiaHOLDING

• the assembled data raise substantial doubt
  about the reliability and appropriate
  representation of panels smaller than six.
  Although the evidence does not draw a bright line
  between five and six, any further reduction that
  promotes inaccurate and possibly biased
  decision-making, that causes untoward differences
  in verdicts, and that prevents juries from truly
  representing their communities, attains
  constitutional significance.

• Queasy feeling about Williams and Colgrove.

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Ballew v. GeorgiaWrap Up

• Georgia relies on the studies from Colgrove,
  whose flawed methodology has been discussed.
• There is no pressing state interest to have a
  jury smaller than 6- it is not clear that the
  time and money saved would be substantial or
  worth the risk to justice.

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Ballew v. GeorgiaConcurrence in the Result

• Also, I have reservations as to the wisdom-as
  well as the necessity-of Mr. Justice BLACKMUN'S
  heavy reliance on numerology derived from
  statistical studies. Moreover, neither the
  validity nor the methodology employed by the
  studies cited was subjected to the traditional
  testing mechanisms of the adversary process. The
  studies relied on merely represent unexamined
  findings of persons interested in the jury
  system. The opinion of Mr. Justice BLACKMUN
  acknowledges, in disagreeing with other studies,
  that methodological problems may mask
  differences in the operation of smaller and
  larger juries.

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People v. Allen (Mich. 1988)

• Issue When to allow the prosecution to impeach
  the defendants testimony by telling the jury of
  the defendants prior criminal convictions.
• The Old Rule Prior convictions can be brought up
  if the crime was punishable by death or over one
  year in prison, or if it involved theft,
  dishonesty, or false statement, regardless of
  punishment- AND if the court determines its
  probative value on the issue of credibility
  outweighs its prejudicial effect on the issue of
  guilt. The court must record its reasoning.
  (Michigan Rule of Evidence 609 (a) ).

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People v. Allen (Mich. 1988)

• The Majority finds It is easier for the jury to
  find that the defendant is a bad man than that
  he actually committed the crime of which he is
  accused. Jurors thus have an appetite to (1)
  convict a bad man with a criminal past,
  regardless of the lack of sufficient evidence (2)
  lower the burden of proof due to bad character of
  the accused and (3) assume a propensity for crime
  is proof of guilt.

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People v. Allen (Mich. 1988)

• -The Majority also finds
• The thought that Judges Instructions can prevent
  jurors from only considering prior convictions
  with regard to credibility (and not to overall
  guilt) is simply mistaken, as shown by a
  number of empirical studies.

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People v. Allen (Mich. 1988)

• The Dissent challenges the Majoritys assertions
  about jurors and limiting instructions and the
  methodology of the studies the Majority relies
  upon, arguing that the Majority has merely
  codified its own opinion on the issue, using
  poorly designed studies for a pretext of support.

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People v. Allen (Mich. 1988)

• Study 1 Hans Doob, Canadian Study
• Method Simulated juries studied.
• Finding Evidence of prior conviction permeates
  the entire discussion of the case in spite of
  specific instructions to only apply such evidence
  to issue of credibility. Jurors barely even used
  the evidence with regard to credibility.
• Flaw Mock juries and simulations are imperfect
  tools for answering empirical questions.

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People v. Allen (Mich. 1988)

• Study 2 Doob Kirshenbaum, Halo Effect
• Method 48 persons approached in various public
  buildings. Each was read a 400 word descripton of
  a breaking and entering case, and asked How
  likely do you think it is that he is guilty-
  asked to rate guilt on an ordinal scale from 1
  (definitely guilty) to 7 (definitely not guilty).
  Four groups of 12 were read slightly different
  scenarios
• Group Guilt Level
• 1-Just the facts 4.00
• 2-told lawyer saw no reason to put D. on
  stand 4.33
• 3-told D. testified but did not give any
  important evidence,
• and that D. has five prior convictions for
  breaking and entering,
• and two for possession of stolen goods. 3.25
• 4-same as above, but also with judges limiting
  instruction 3.00

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People v. Allen (Mich. 1988)

• Study 2 Doob Kirshenbaum, Halo Effect
• Finding Halo Effect Learning something bad
  about someone leads you to assume that other bad
  things about them are true. (the two groups who
  heard prior convictions both had higher ratings
  of probable guilt).
• Flaws (1)tiny sample size (2)no real basis for
  comparison between the methodology of this study
  and that of the courtroom- no trial, evidence,
  voire dire, argument, witnesses, or deliberation.

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People v. Allen (Mich. 1988)

• Study 3 University of Chicago Research
• Method Jury Interviews.
• Finding Almost universal inability and/or
  unwillingess among jurors to understand or
  follow courts instruction on the use of prior
  conviction evidence. It is almost universally
  used to conclude that defendant was a bad man,
  and thus guilty.
• Flaws (1) No information about size of pool
  observed or its representativeness (2) Vague
  about exact numbers, methods, and operational
  definitions (what were his criterea- how did he
  find out whether or not the jury understood?)

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People v. Allen (Mich. 1988)

• Study 4 Columbia Journal of Law and Social
  Problems
• Method Random national survey of trial judges
  and defense lawyers, asking whether they believed
  jurors were able to follow limits of judges
  instructions on the use of prior conviction
  evidence.
• Finding 98 of responding defense attorneys said
  no, as did 43 of responding judges.
• Flaws (1) Problem with reader-response polls- no
  control over representativeness of the sample.

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People v. Allen (Mich. 1988)

• Study 5 Wissler Saks
• Method 160 Mock Jurors approached in public
  places and private homes, given a .two-page case
  summation and asked to determine guilt or
  innocence.
• Finding Jurors use prior conviction evidence to
  help judge the likelihood of guilt in spite of
  limiting instructions
• -Higher conviction rate when prior conviction was
  for murder as opposed to perjury, all else being
  the same.
• -No significant difference between mock jurors
  rating of defendants credibility between cases
  where prior history was introduced and when it
  was not.
• -Credibility NOT a function of prior conviction
  evidence
• -Conviction IS a function of prior conviction
  evidence.

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People v. Allen (Mich. 1988)

• Study 5 Wissler Saks
• Flaws (1) Sample locations and size limited
  only 20 people in group where prior history was
  of murder
• (2)Researchers admit one should be cautious in
  generalizing from the results of this study to
  jurors in a real trial- Dissent the obvious
  explanation for why the Credibility of Defendant
  did not change in participants eyes in spite of
  changing prior conviction information is that
  THERE WAS NO DEFENDANT. It is difficult to have
  any feeling about the credibility of a
  HYPOTHETICAL PERSON. Only a trial atmosphere can
  properly reproduce the circumstances under which
  a real juror must judge credibility.

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People v. Allen (Mich. 1988)

• Holding
• -There is an overwhelming probability that
  prior conviction evidence introduced for the
  purpose of impeachment will be considered as if
  it had been introduced to show that the defendant
  acted in conformity with his criminal past.

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People v. Allen (Mich. 1988)

• Revised Michigan Rule of Evidence 609
• -Prior conviction evidence allowed only if the
  crime contained an element of dishonesty or false
  statement, OR, an element of theft and was
  punished with over a year in prison or death
• AND probative value toward credibility
  outweighs prejudicial effect.
• -New Explicit Instructions on Weighing
• Probative Value ONLY consider age of conviction
  and how indicative it is of veracity.
• Prejudicial Effect ONLY consider prior
  convictions similarity to current charge and
  possible effects on decisional process if
  admitting the evidence causes defendant to decide
  not to testify.
• Court must record its reasoning

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People v. Allen (Mich. 1988)

• Basis for Holding
• -We welcome the dissents critique of the methods
  and conclusions of the studies we relied upon,
  as social science experiments cannot serve as
  the primary basis for judicial decision. Many
  fundamental principles of our jurisprudence are
  based on assumptions of human behavior that have
  never been, and in most cases cannot be,
  scientifically tested.
• -Our modification of MRE 609 is the result of
  assumptions about jury behavior and the
  effectiveness of limiting instructions that were
  accompanied by relatively little analysis or
  study.

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People v. Allen (Mich. 1988)

• We, therefore, in the words of the dissent,
  act not on the basis of studies, but on the
  common-sense premise that some prior
  convictions are more probative than others, that
  some are inherently more prejudicial, and that it
  is absurd to suggest that jurors will be able to
  avoid improper consideration of a defendants
  criminal character once it has become known to
  them.
• -The Studies are merely relevant as SUPPORT, but
  are not the BASIS of the decision.