Ordering Proof: Beyond Adversarial and Inquisitorial Trial Structures

In typical trials, judges and juries will find it easier to remember the proof that occurs early in the process over than what comes later. Moreover, once a fact-finder starts to form a working hypothesis to explain the facts of the case, they will be biased towards interpreting new facts in a way that confirms that theory. These two psychological mechanisms will often combine to create a strong “primacy effect,” in which the party who goes first gains a subtle, but significant, advantage over the opposing party. In this article, I propose a new method of ordering proof, designed to minimize the inaccuracy or unfairness that arises due to primacy effects. A neutral third person, rather than the disputing parties, would prepare an opening “statement of the dispute,” which would take the place of partisan opening statements. In lieu of separate, partisan cases-in-chief, this neutral third party would also decide the order of testifying witnesses, balancing considerations of clarity, efficiency, and neutrality between the parties. This proposed ordering would, however, be subject to variations by agreement among the parties. In lieu of a jury trial, the presiding judge could perform these new functions, while a magistrate judge or an appointed master could do so in nonjury trials. After exploring the reasons why this new mode of ordering proof would likely improve the fairness and accuracy of our system without excessive cost or inconvenience, I propose a policy experiment to test the proposed method in a random selection of jurisdictions, so that its impacts on outcomes, costs, and litigant satisfaction can be measured

Ordering Proof: Beyond Adversarial and Inquisitorial Trial Structures

In typical trials, judges and juries will find it easier to remember the proof that occurs early in the process over than what comes later. Moreover, once a fact-finder starts to form a working hypothesis to explain the facts of the case, they will be biased towards interpreting new facts in a way that confirms that theory. These two psychological mechanisms will often combine to create a strong “primacy effect,” in which the party who goes first gains a subtle, but significant, advantage over the opposing party. In this article, I propose a new method of ordering proof, designed to minimize the inaccuracy or unfairness that arises due to primacy effects. A neutral third person, rather than the disputing parties, would prepare an opening “statement of the dispute,” which would take the place of partisan opening statements. In lieu of separate, partisan cases-in-chief, this neutral third party would also decide the order of testifying witnesses, balancing considerations of clarity, efficiency, and neutrality between the parties. This proposed ordering would, however, be subject to variations by agreement among the parties. In lieu of a jury trial, the presiding judge could perform these new functions, while a magistrate judge or an appointed master could do so in nonjury trials. After exploring the reasons why this new mode of ordering proof would likely improve the fairness and accuracy of our system without excessive cost or inconvenience, I propose a policy experiment to test the proposed method in a random selection of jurisdictions, so that its impacts on outcomes, costs, and litigant satisfaction can be measured

Sentenced for a “Crime” the Government Did Not Prove: Jones v. United States and the Constitutional Limitations on Factfinding by Sentencing Factors Rather Than Elements of the Offense

Priester argues that the Constitution does restrict the power of the legislature by requiring that certain facts be proved as elements of the offense. He notes the Supreme Court\u27s missed opportunity in Jones v. United States to adopt the test proposed by Justice Scalia

Sentenced for a “Crime” the Government Did Not Prove: Jones v. United States and the Constitutional Limitations on Factfinding by Sentencing Factors Rather Than Elements of the Offense

Priester argues that the Constitution does restrict the power of the legislature by requiring that certain facts be proved as elements of the offense. He notes the Supreme Court\u27s missed opportunity in Jones v. United States to adopt the test proposed by Justice Scalia

Presumptions—The Uniform Rules in the Federal Courts

Emerging heavy duty vehicle control systems increasingly rely on advance knowledge of the road topography, described by the longitudinal road grade. Highway road grade profiles are restricted by road design specifications to be piecewise affine. This characteristic is used herein to derive a method for road grade estimation based on standard on-vehicle sensors and optimal piecewise linear estimation through dynamic programming. The proposed method is demonstrated with on-road experiments. It is able to represent the road grade profile for two studied 15 km road sections, by 20 linear segments for each, with a root mean square error between 0.42 % and 0.55 % grade.QC 20120215</p

Modeling the Effects of Peremptory Challenges on Jury Selection and Jury Verdicts

Although proponents argue that peremptory challenges make juries more impartial by eliminating “extreme” jurors, studies testing this theory are rare and inconclusive. For this article, two formal models of jury selection are constructed, and various selection procedures are tested, assuming that attorneys act rationally rather than discriminate based on animus. The models demonstrate that even when used rationally, peremptory challenges can distort jury decision making and undermine verdict reliability. Peremptory challenges systematically shift jurors toward the majority view of the population by favoring median jurors over extreme jurors. If the population of potential jurors is skewed in favor of conviction - as empirical evidence suggests is usually the case - then peremptory challenges have the unexpected result of making convictions more likely, rather than promoting reasoned deliberation without prejudice to the result. This is troubling when jurisdictions almost universally award more peremptory challenges in trials involving the most serious crimes. And this effect is magnified when attorneys have more complete information about jurors, suggesting the problem may become worse in the future. Moreover, juries selected with more peremptory challenges become more ideologically and demographically homogenous, even when attorneys do not engage in discrimination, reducing the accuracy of jury verdicts. Although this second effect has been seen empirically, the results of the models suggest that it is an inevitable result of the peremptory challenge process rather than an effect of discrimination by attorney

Spelling Guilt out of a Record? Harmless Error Review of Conclusive Mandatory Presumptions and Elemental Misdescriptions

Part I of this Article summarizes the history of harmless-error review. Part II explains more fully the constitutional infirmities generated by conclusive mandatory presumptions and elemental misdescriptions, and demonstrates that the unique nature of these infirmities complicates the question of how courts should review them for harmlessness. It also examines the Supreme Court\u27s attempts to answer the questions of whether, and how, conclusive mandatory presumptions and elemental misdescriptions should be reviewed for harmlessness. In so doing, it focuses particularly on how these attempts have been undermined by the Court\u27s failure to take account of the structural rights undermined by these errors. Finally, Part III argues that the Constitution, relevant Supreme Court precedent, and policy considerations require application of the test specified in Justice Scalia\u27s opinion concurring in the judgment in Carella v. California when courts confront challenges to conclusive mandatory presumptions and elemental misdescriptions. It also contends that this test should apply on direct and collateral review

Constitutional Law: State Jury Selection Procedure Held a Violation of the Fourteenth Amendment

Criminal defendants have frequently raised due process and equal protection objections to the exclusion from their state court juries of various racial, economic, and occupational groups. In Labat v. Bennett, the Fifth Circuit, in order to determine the validity of such exclusions, enunciated a constitutional test: whether the exclusion is related to juror competence; whether it is justfied by public necessity; and whether the exclusion is compatible with the attainment of a jury which represents a cross section of the community