Fascinating journal article discussing juror bias and firearms use

[mustang_steve]

The penny analogy is hard to follow...is he turning pennies into something else, or producing fake pennies? If it's the former, he's innocent as the charge is counterfeiting, not defacing of federal property. If it's the latter, then it's a question of how accurate are these? If he's just making a face print, or just a tail print, but not both at once, I see no problem. If it's obvious he's trying to pass them off as real pennies at any time, I see a problem.

Now to the machinery angle....It's a matter of intent, but I would have some doubts if he has bulk production gear at home. That's not the place for equipment of that caliber.

However, that analogy isn't comparable in this case. Tools and machinery are different beasts. The penny press is a industrial machine, while an AR is a firearm, a tool.

However I can see and appreciate what public perception on a firearm is: thus why I would never use certain firearms in self-defense unless there was no other option.

 

[Frank Ettin]

Two to the chest/One to the head and even the Jolly Green Giant will fall down dead.

...I've always been wondering how to kill him! He's always giving me a threatening look whenever I go to make some green beans....

Just wave a pork chop at him, and he'll leave you be.

 

[damien]

It seems to me that they polled these jurors individually instead of in blocks of 12 and the individual finding of guilt or innocence and the suggested sentence were averaged. There was no actual "jury" debating the facts at hand, only each individual juror answering with pen and paper.

"Finally, after the case presentations, participants were asked to render a verdict by assessing guilt and/or assigning a sentence. Mock jurors were drawn from two separate populations: college students at Trinity University - a liberal arts college in San Antonio, Texas; or community college students at the Alamo Community College, also in San Antonio, Texas. In the first study with Trinity University liberal arts students, the burglar was male and the homeowner was male. We presented the case scenarios and asked mock jurors to recommend sentencing judgments (time periods of incarceration) for the homeowner-defendant based on six different possible guns used in the shooting. "

"On the verdict side, the percent of guilty judgments was approximately 65% for the AR-15 vs. 45% for the Ruger."

I don't think 45% or 65% of the participants finding the person guilty is going to mean a unanimous guilty verdict on a real jury that requires a unanimous verdict of 12 jurors after a real debate in a jury room.

The percentage of jurors finding guilt tops off for a female shooter with the AR-15 at 75%.

This study definitely shows a bias, but I don't think it shows that homeowner actually being found guilty, even if the shooting occurred with an AR-15.

 

[Frank Ettin]

This study definitely shows a bias, but I don't think it shows that homeowner actually being found guilty,...

But the point is that weapon characteristics have an effect.

 

[mustang_steve]

damien, if it was a civil case instead of a criminal case, 51% likely is all that needs to be proven to hose someone over for the rest of their life.

The legal defense is two-pronged...the OJ Simpson case was a fine example of someone getting off the hook in the criminal case, but getting nailed in the civil case. Given his was a case of murder, but we have to make sure we are clear on both counts, and there's many factors that play into what makes a "good shoot" and a "bad shoot"

 

[damien]

51% likely is all that needs to be proven to hose someone over for the rest of their life.

But that preponderance of evidence still has to be accepted by the entire jury (in a few states, 11/12 or 5/6, depending on law and/or the size of the award).

Anyway, I thought we were discussing the article posted. That article is 100% about criminal liability, not civil liability.

 

[lexjj]

Good point damnien. I think the reason the researchers did that was to control for "leadership" on the jury (though I can't presume to speak for them). You are right though. It only takes one juror to ensure a hung jury. The problem with a hung jury though, is that it gives the prosecution a ton of leverage. Most defendants don't have the resources for one trial, much less two. The prosecution can retry the case at their discretion, and if a majority of the jury favors conviction, that is certainly going to egg them on.

 

[Frank Ettin]

It seems to me that they polled these jurors individually instead of in blocks of 12 and the individual finding of guilt or innocence and the suggested sentence were averaged. There was no actual "jury" debating the facts at hand, only each individual juror answering with pen and paper.....This study definitely shows a bias, but I don't think it shows that homeowner actually being found guilty,...

I wouldn't presume to speak for Glenn Meyer, but I do have a hypothesis as to why the study was conducted as it was and as to why the lack of an actual "guilty verdict" is irrelevant.

The course of jury deliberations leading to a verdict will be a function of both the views of each juror at the close of trial and the interpersonal dynamics in the jury room. At the beginning of a jury's deliberations there will almost certainly be different views of the defendant's guilt. Each side will be attempting to sway the other leading to a unanimous conclusion acceptable to all. The end result will be strongly influences by the strength of opinion (stubbornness), persuasive abilities, argumentation skills, susceptibilities and other personally unique attributes of the individual jurors.

But it's my impression that Dr. Meyer's study was not intended to attempt to examine the interplay of personalities in jury deliberations. Rather he was interested in determining if certain factors were likely to dispose a jury more, or less, negatively toward the defendant as of the time the juror enters the jury room.

Of course, if I'm the defendant I would be justifiably concerned that the more jurors who began deliberations negatively disposed toward me, the less likely any jurors positively disposed toward me would be able to sway them in my favor.

 

[GEM]

Yep - Fiddletown is on the right path for our purpose. It was to show an effect of such, following up on other past studies.

 

[Grey_Mana]

OK, what color should I paint all my guns, and what is the best way to do it?

I'm thinking a pale green or butter yellow would be most reassuring.

I'd like to have seen those studies use volunteers from senior centers or community centers, rather than kids taking Intro Psych.

 

[Cosmoline]

Neat idea. I'll think about it, but I just don't see any judge issuing an order to exclude the weapon. The prosecution will say it is probative of the defendant's state of mind, among other things (which is the key issue in the case).

The weapons are introduced more out of custom than any rational basis. When you boil it down unless there's a fact issue about whether it was the murder weapon, there's no legitimate reason for the DA to show the weapon to the jurors at all. There are a long list of ILLEGITIMATE reasons, and DA's do love to parade around with scary black rifles. It's certainly not legitimate to try to prove "state of mind" by showing the firearm. Anymore than a red Porche proves speeding. Besides, subjective mental state ought not to be at issue in a self defense case.

Given the minimal or non-existent relevance, Rule 403 or its state equivalent ought to kick in to keep the pool from ever seeing the thing. The DA would need to come up with some basis for admission relating to a factual issue about where people were standing, etc. And even then the physical shape and color of the firearm isn't particularly significant.

I'm surprised the argument isn't made more often, or that it wasn't raised in that Arizona 10mm case. But I think both sides just sort of assume the gun is coming in.

As far as altering what firearm you use on this basis, it's probably fruitless. Heck even if you use a .30-30 Winchester the DA can insinuate you think you're John Wayne or Clint Eastwood or some other utter nonsense. None of it should be allowed in the first place, but if the judge does let that happen there's no firearm that's a "safe" choice. If you use the same G23's the local cops use then you must think you're a cop. If you use a surplus rifle you must think you're in a war. etc. etc. There's no limit to unfair prejudice once it's allowed into court. The key is to quash it at the outset and limit the factual issues by conceding the underlying points of contention such as how the shooting took place. We do this all the time in civil cases to steal the plaintiffs' thunder, and boy do they hate us for it! In criminal cases the defense attorneys are used to taking a "DENY EVERYTHING" stance and will force the DA to prove up every single element of the case. Come to think of it, that's how they get the gun in the front door.

 

[lexjj]

Cosmoline - The more I think about it, the more I think my initial reaction was right. The gun is basically always going to be admissible. Full disclosure - I'm a 3L, and obviously have not passed the bar. I've worked on maybe 10 civil cases and 15 criminal ones (all federal). So you probably have considerably more experience than me.

At the very least, if there are any witnesses (there aren't any in this scenario besides the home owner) the gun could be admitted as a demonstrable exhibit.

I asked a Judge (Yale Law School, former USA, 30 years of practice) what his opinion was today. I explained the study and the fact pattern. He told me that he cannot think of a circumstance where that gun would be inadmissible. So I asked a practicing criminal defense attorney, hoping to stir the pot. I got the same answer.

If you have successfully kept a gun out of a case like this, I really would love it if you would pm me the motion so I can look at it. It would be cool to see.

Consensus in my circle seems to be that the weapon is always admissible in a case that involves a shooting. Self-Defense is an affirmative defense. The gun isn't relevant to prove self-defense, but it is relevant to prove murder/manslaughter etc., and the prosecution gets to prove up their case.

 

[Frank Ettin]

...The key is to quash it at the outset and limit the factual issues by conceding the underlying points of contention ...

The is essentially how a self defense plea has to be handled.

If you claim self defense, the prosecution doesn't have to prove, at all, that you were there, that you shot the subject or that you intended to shoot the decedent, because you will have admitted each of those element of the crime of manslaughter. If you are claiming self defense you necessarily must admit that you (1) you were there; (2) you shot the subject; and (3) you intended to shoot the decedent. You have made a prima facie case against yourself for the prosecutor, and he doesn't have to prove any of the things he ordinarily would have to prove beyond a reasonable doubt.

Self defense is an affirmative defense. Your defense is, in effect, that even though you performed the acts the ordinarily constitute the crime, those acts were legally justified.

The allocation of the burden of proof and burden of persuasion between the prosecution and defense in a self defense case varies from jurisdiction to jurisdiction. But you will at least have to put forward evidence establishing a prima facie case of justification according to the standard applicable to the use of lethal force in self defense in your jurisdiction. The prosecution needs to convince the jury that you weren't justified.

I'm not sure that either helps keep the gun out of evidence or helps the gun come into evidence. But in any case, the gun is part of the story, and I don't see how the prosecutor or defendant can tell the story without including the gun.

 

[captlid]

Wow that was really mind blowing. But then again I am not surprised that the women jurors judged the women shooters more harshly then the men. There is so much pettiness, jealousy and animosity amongst women that women seeing another woman stand up for herself is well how do you say.... "How dare you do something better than the rest of us?" Imagine a woman shooter defends herself, you think her gal friends are going to validate that?

Just a young female's two cents. If I was a juror a person defending themselves in their own home pretty much gets a not guilty verdict. Don't care if he or she uses a letter opener or a bazooka.

As an aside, I participated in a mock jury trial at a criminal justice college in my city a few months ago. It was on the sentencing phase of a death penalty case. They were testing to see if a defendant's demeanor and emotion or lack of emotion affected the juror's decision to give life in prison or death if the defendant decides to give a statement. They had two separate groups of jurors come in. One group was shown a video with the defendant showing remorse. The other group was shown with the defendant showing no emotion at all. My group got the video of the defendant showing remorse.

My verdict was death. The scenario was a guy with a shotgun carjacked a young couple in a desolate parking lot of a gas station off a highway. Instead of just leaving them there after they gave him their money also, he told them to get in the trunk of the car, they did, he drove around for a bit and then shot them both dead point blank when he opened the trunk later on in the evening.

 

[Bobby G]

I figured that one out about a month after getting into firearms, didn't need a fancy study to tell me that. Does this really come as a surprise to anyone?

"A Jury is a collection of 12 people too dumb to get out of jury duty"
- Unknown

It's interesting when someone views "juries" as a monolithic body of "other people." My experience in the system has shown that when jurors get a clean trial before them (reasonable evidentiary rulings, judge without an agenda), they will do the right thing 90% of the time. Who among us makes the right decision 90% of the time?

"Juries" aren't "them." "Jurors" are us.

It's disheartening when someone wants to use the Constitution to protect his sovereign right to keep arms, yet when asked to be a juror so that everyone's Constitutional rights may be upheld, looks for a way to shirk his civic duty.

 

[Frank Ettin]

It's interesting when someone views "juries" as a monolithic body of "other people." My experience in the system has shown that when jurors get a clean trial before them (reasonable evidentiary rulings, judge without an agenda), they will do the right thing 90% of the time. Who among us makes the right decision 90% of the time?...

All of that is well and good, and I substantially agree, BUT --

[1] In the real world there is very seldom such a thing as a "clean" trial. It would indeed be rare for a trial to be "clean" even absent judicial agenda or error. The thing is, most trials will involve some "messy" issue -- perhaps unclear or conflicting evidence or questions of credibility or uncertain legal issues. If there were not questions of fact or questions of law to be resolved, there probably wouldn't be a trial; and things would have been resolved by some sort of negotiated settlement or through various pre-trial motions. Most cases that actually get to trial are at least somewhat messy.

[2] If you are on trial, or if you engage in activities that may possibly result in your becoming involved with the criminal justice system (like keeping a gun around for self defense), a very great deal may be at stake -- your freedom, your property, indeed your entire future. Even your 10% uncertainty is huge if it's about you and your entire future.

[3] Therefore, it's prudent to understand how things work so that you have the best opportunity to understand and, most importantly, to manage the risks as best you can.

[4] And for those of us who teach shooting and personal protection classes, it helps for us to understand these matters so that we can include some reasonably training in appropriate risk management.

...It's disheartening when someone wants to use the Constitution to protect his sovereign right to keep arms, yet when asked to be a juror so that everyone's Constitutional rights may be upheld, looks for a way to shirk his civic duty.

I agree.

 

[Neverwinter]

You guys can dance around the notion, and try to stretch logic, or act as if you live in some alternate, logical universe (planet Vulcan? Say hi to Mr. Spock for me) but the fact of the matter is Weapons evoke deep, emotional, even primal, reactions and feelings in people, little of it based on logic, and if you do not understand that you are either naive or lying to yourself.

You go to court with the jury you have, not the jury you want.

 

[Z-Michigan]

"Juries" aren't "them." "Jurors" are us.

It's disheartening when someone wants to use the Constitution to protect his sovereign right to keep arms, yet when asked to be a juror so that everyone's Constitutional rights may be upheld, looks for a way to shirk his civic duty.

Some of us would be more than happy to serve on a jury, but for various reasons (practicing lawyer, gun owner, appears that we cannot be easily mislead, etc.) will never be allowed to do so.

Let's toss this sideways for a minute. With this study now in existence, could it be used to (1) seek to prohibit any discussion of the type of weapon on the basis that it's irrelevant and inflammatory?; (2) be used to screen jurors for any bias against the type of weapon involved and dismiss such jurors for cause?; (3) seek to have any statements by the prosecutor referring to the type of weapon, particularly in the opening or closing arguments, be viewed as inflammatory and inappropriate, and as grounds for dismissing charges with prejudice, or at least a retrial?

 

[Deltaboy1984]

Well I guess buying the Daughter a AR is out now ! But the 20 guage shotgun is coming soon.


Glad we are protected from Civil courts in SD shooting by state law in TX.

 

[General Geoff]

...It's disheartening when someone wants to use the Constitution to protect his sovereign right to keep arms, yet when asked to be a juror so that everyone's Constitutional rights may be upheld, looks for a way to shirk his civic duty.

I doubt very many on this board would attempt to avoid jury duty deliberately. The jury selection process often weeds people like us out, though, because we know too much. Literally.