This past Thursday I had the honor of making a teaching methods presentation to the assembled membership of the
. The other three finalists were:
All the presentations were innovative and indicative of this unique academy of academics who manage to take great pride and effort in teaching law in business schools while also maintaining the highest standards of research and record of publication.
The post below fulfills the promise I made at the presentation to post my materials online so that they could be easily copied and pasted into whatever format my colleagues might choose to use. To you, my colleagues, I once again express my thanks. I hope that you will feel free to adapt and use any of these materials in your courses and am flattered by the prospect.
2013 Charles
M. Hewitt Master Teacher Competition
PROPOSAL
“Jury, Jury,
Halleluiah”: Replacing Myths With Understanding
Submitted by
I. Proposal
Description:
I'm gonna talk to
my lawyer - I think I've got a pretty good case.
All I need are some
crutches - maybe I'll put on a neck brace.
I've got a
witness - to put a hand on the Bible,
Jury, jury,
hallelujah - somebody's liable.
- Chuck Brodsky from the song Talk
to My Lawyer.
The legal system abounds with ritualistic symbols and practices from
the bailiff’s formal announcement of the opening of court to the judges’ black
robes. Perhaps none remains more mysterious to the public than the role of the
jury. Consequently, legal folklore
replaces actual facts and understanding in the minds of the public. Popular
culture has portrayed jury duty much like a colonoscopy – it’s probably
necessary, but should be put off as long as possible if not avoided entirely. Most of the media that our students interact
with on a regular basis - songs, YouTube videos, comedy routines, College Humor
website, etc. – portray jury duty as either silly or evil. Consequently, one
must wonder what our students already “know” about juries and how best to bust
the myths and replace them with understanding.
The proposed teaching method has three components: First, turn the
class into jurors by presenting them with a hypothetical case and charging them
with the jury’s role. Second, monitor their
deliberations looking for the teachable moments where they seem to be yearning
for understanding or exhibiting misinformation. Third, bring the class back together
to fill their empty cups with knowledge about the jury system and re-direct
their misunderstandings.
A.
Learning Objectives:
The principle objective of this teaching
method is to replace myths about the jury system with knowledge and
understanding on each of the following subjects:
1.
The role of the
jury in the legal system
2.
Jury selection
3.
Nature of jury deliberations
and procedures
4.
Importance of
evidence, evidentiary rulings and burden of proof
5.
Relationship of
judge and jury
6.
Jury
nullification
B. Proposed
Classroom Teaching Session (75 minute class)
1. Turn the students into jurors: (10
mins.)
At the start of class students are asked to form groups of
approximately equal size (usually 8-12 per group). They are asked to relocate their seats to a
place where they can deliberate and hear each of the group members speaking.
They are to close and leave their laptops computer at their seats and to put
away smart phones.
Students are then presented the case of State v. Muffy (Appendix A) by projection on a screen of a written
recitation of the facts and testimony, read by the instructor. At the end of the presentation, the students
are charged to deliberate as jurors. Each jury is presented with a jury slip
(Appendix B) and instructed to return a unanimous verdict or be prepared to
explain why they could not do so. Jurors are advised that any questions asked
of the judge (instructor) must come from the foreperson and be certified by the
full jury. By design, no further instructions are given.
2. Monitor deliberations for teachable
moments: (30 mins)
As the juries deliberate, walk along the edges of the
deliberations taking notes of the process.
What do the juries deem to be important?
What are they missing? What are they confused about? Are they following
the charge? Etc.
3. Bring the class back together:
(35 mins)
After the designated time, call in the verdict slips, report the
results and address the class on the basis of what resulted during the
deliberations. Some of what you present
will be prepared while some of it will come to you as a result of what happens
during deliberations. Based on many semesters of employing this exercise, the exercise
reliably produces experiences and questions that align with the learning
objectives as follows:
1. The role of the jury in the legal system:
·
This case raises an issue of conflicting medical
opinions. Credible medical science is not in agreement regarding shaken baby
syndrome. Yet, a lay jury is expected to come to a resolution on a matter that
the experts can’t resolve.
2. Jury selection:
·
Would jurors with
medical experience be seated or dismissed? Why? Other countries use juries
comprised of experts. Which method is
better? Why?
·
How does the role of lawyers in the
adversarial system affect jury selection?
Show an excerpted training video for new prosecutors advising them to
choose biased juries in order to win cases, avoiding “blacks from low income
areas” and smart people. http://www.youtube.com/watch?v=f40CZR2Fx2w McMahon Philadelphia DA Training Video
(excerpts).
3. Nature of jury deliberations
·
As mock jurors,
students experience the collaborative decision making process. Even though they have all received the same
evidence, they learn that each comes away with different perceptions.
·
Student jurors
will experience having to justify and support their positions and attempt to
persuade hold out jurors.
4. Importance of evidence, evidentiary
rulings and burden of proof
Student
jurors will:
· - want to hear
testimony from Ashley. But she was not presented as a witness, so they may not.
There is the opportunity to talk about the challenges with child witnesses.
· -debate the
credibility of the doctors, even though they never saw any live witnesses.
Assessing credibility is an important function of the jury
· - debate the
evidence received from the “fact” witnesses. This presents the opportunity to
query whether any of them would have been allowed to testify in a trial. Evidence must be relevant and probative.
Prior bad acts? Character?
· - want to use their
laptops to search for more medical information. Can shaken baby syndrome
produce death from a single incident?
Could the effects be delayed from a shaking event that occurred hours or
days before? There are no answers in the evidence.
· - Examine the
concept of “reasonable doubt” and whether the state has met its burden of
proof.
·
use their own
knowledge and common sense in conjunction with or contrary to the
evidence. Should there be bruising on
the abdomen? Hand marks?
· - exhibit sympathy.
The family has suffered enough. If Muffy is guilty then Ashley will not have
her mother. What role should/does sympathy play in jury decisions?
5. Relationship of judge and jury
·
As you observe
deliberations, individual jurors will blurt out question to you. You can’t answer them. Only if the jury discusses and decides that
the question should be posed can you accept a question from the foreperson.
·
Student/jurors
will struggle with the definitions of the law. Some recognize that it may be
negligent to leave Chase on the chair, but is it reckless? Intentional? They
will seek clarification but all you can do is repeat the charge as given.
·
Some student
jurors presume that they will have a role in sentencing if they find
guilt. There is the opportunity to
explain that this is the role of the judge. A lasting impression is made
discussing the Georgia case of Billy Crowder:
6. Jury Nullification
·
The Crowder case
gives an opportunity to talk about evolution of the role of the jury. The jury
may once have been the conscience of the community as far as determination of
right and wrong. It is now simply a
fact-finder. The charge to the jury is typically in this form, “If you find X,
then you must enter a verdict of guilty/not guilty.”
·
Juries have the ability
to nullify, if not the right to do so. What are the effects?
·
What are the
procedural safeguards against/parameters of jury nullification?
C. Methods of
Evaluation
Student learning is assessed in examinations through topical
questions. The jury exercise is frequently referenced by students during course
evaluations as a positive experience.
II. Master
Teacher Presentation:
Presentation of State v.
Muffy
Presentation of class material that follows deliberation
including:
Jury selection
video
Billy Crowder
story (39:25 – 40:40)
The Verdict video
III.
Qualifications:
2012 Charles M. Hewitt Master Teacher Competition Finalist
Editor of the Legal Studies
Classroom Blog, http://legalstudiesclassroom.blogspot.com/,
a nationally recognized resource of innovative curricular material for use in the
undergraduate legal studies classroom.
The LSCB has received an average of 4,400 page views per month for
academic year 2012-2013.
UCONN School of Business Undergraduate
Teaching Award Recipient (2006); Co-Recipient (2011) representing the only
two occasions on which the applicant was eligible for the award.
UCONN Student Board of Governors, Nominated for Educator
of the Year (2009)
APPENDIX A
TRIAL
COURT EXERCISE: STATE v. MUFFY
To all the world, Biff and Muffy were
ideal parents to their 4 year old daughter Ashley
and their 15 month old son, Chase. Muffy had given up her job as a stock market
analyst to stay home with her two young children. Biff worked as an investment banker. On Sept. 1, 2010, Muffy rushed into the
emergency room at County General Hospital with Chase in her arms. She was hysterical. Chase was unconscious. According to Muffy, Chase was standing on a
chair at the dining room table, coloring in a book, while Muffy sat next to him
talking to him about his picture. Muffy
was called away from the table and into the kitchen by Ashley who wanted some
juice. Muffy was gone from the dining
room only momentarily. When she
returned, she saw Chase lying on the carpeted floor at the foot of the chair,
unconscious. She presumed that he had
fallen from the chair. She picked him
up, laid him down on the back seat of the car, gathered up Ashley and rushed to
County General.
At County General, Chase came under the care
of Dr. Good, a physician Board
Certified in emergency medicine. Dr.
Good examined Chase and found no skull fracture, no bruising or other evidence
of external head trauma. However, CT
scans revealed significant brain injury.
Dr. Good consulted with Dr. Smart,
the head of pediatric medicine at County General. Dr. Smart examined Chase and the test
results. Both Dr. Good and Dr. Smart
concluded that the pattern of brain injury suffered by Chase was consistent
with only one cause, "shaken baby syndrome." Dr. Good called the police. Immediate and heroic surgical measures were
undertaken to reduce the swelling in Chase's brain but were unsuccessful. He died during surgery.
After surgery, Dr. Good explained his findings
to the investigating detective. Over the
next three days, the police conducted an investigation and when Muffy returned
home from Chase's funeral, she was arrested for his murder.
At the
trial of the case, the prosecution's case was presented as follows:
A copy of the County General admitting form
which contained Muffy's version of the facts as related to the admitting nurse
(as stated above).
Testimony of
Greecemon Key, an auto mechanic who lived in the house next door to Muffy
and Biff. He testified that on occasion, he would hear
Muffy and Biff engage in loud, angry arguments.
On those occasions, he had heard crashes, as if items within the house
were being broken. On a couple of
occasions, he had heard a baby crying for long periods of time followed by
either or both Muffy or Biff angrily raising their voices and shouting. He could not make out what words were being
said. On cross-examination, he admitted
that he had never seen an ambulance called to the house, had never seen any
sign of physical injury on either Muffy or Biff or any of the children, other
than an occasional small band-aid.
Testimony of
Tia Cher, a licensed pre-school teacher at the pre-school attended by
Ashley. She related an incident that she
witnessed one day when Muffy and the children were disembarking their mini-van
in the school parking lot to drop Ashley off at school. Muffy was apparently upset with Chase for
spilling juice on the seat of the car.
Muffy spoke angrily to Chase and then, without warning, pulled down his
pants and diaper and spanked him three or four times on his bare bottom with
apparent force. Chase immediately began
to scream and cry. On cross-examination,
Muffy's lawyer elicited Tia's testimony that within moments after the spanking,
Muffy gathered Chase up in her arms and sat in the car rocking him and soothing
him until he quieted. Although Tia could
not hear what was said, between 3 and 5 minutes after "the spanking"
Muffy and Ashley and Chase all emerged from the car and all seemed to be
smiling and happy. They had a
"race" to the door of the school during which all three were giggling
and playing as Chase toddled happily along.
Testimony of Grann Ola, a certified
Lamaze instructor that Muffy had taken a Lamaze/Natural Childbirth Preparation
course with her when Muffy was pregnant with Ashley and a refresher course when
she was pregnant with Chase. Each course
included some instruction on the causes and harms of various physical
conditions suffered by infants and toddlers, such as fetal alcohol syndrome,
sudden infant death syndrome, failure to thrive syndrome and shaken baby
syndrome. Each couple was charged with
finding and presenting a magazine article on a relevant pre or post-natal
health issue. Muffy had shared with the class a magazine article that she read
discussing the cause and effects of shaken baby syndrome.
Testimony of Dr. Godfreid Good that his
physical examination of Chase revealed an injury consistent with "shaken
baby syndrome." This type of injury
results when an infant or toddler is shaken with such force that the brain
inside the skull is literally bounced back and forth off of the inside of the
skull. The brain will show significant
bruising and swelling in both the front and the rear. There is no injury to the outside of the
skull. Dr. Good testified that in his
medical opinion, there is no other mechanism that could have produced the type
of injury suffered by Chase. Dr. Good
has been practicing emergency medicine for 20 years. He has seen at least 50 cases that he has
diagnosed as "shaken baby syndrome injuries." Of those, 3 have resulted in death. He also testified that he found four small
bruises on Chase's legs, and one on the abdomen. All were relatively recent (within a few
days) and of undeterminable origin. At the emergency room, he asked Biff about
the bruises. Biff said that Chase, who
had only started walking on his own within the last three to four weeks,"
had fallen a couple of times."
Testimony of Dr. Sylvia Smart that the results
of her physical examination of Chase and her diagnosis were consistent with Dr.
Good's. Further, Dr. Smart is a member
of the Board of Editors of the "Traumatic Childhood Injuries
Reporter," a professional medical journal.
Her recent article, Classic Signs of Shaken Baby Syndrome,
went to publication about a month before Chase's death. The prosecutor read parts of the article into
the record and Dr. Smart confirmed that Chase's case was consistent with the
"classic" signs of shaken baby syndrome as described in her
article. Dr. Smart has been in the
practice of medicine only 10 years, but is well respected for her academic and
scholarly research in the field. She has
only been involved in the actual treatment of 10 shaken baby syndrome cases,
but has studied the syndrome extensively.
Chase's case was the first patient that she had who died from these
causes.
The case
for the defense was as follows:
Testimony of Biff that Muffy was a tender, caring and
loving mother and that she gave all of herself to her children. He had never seen Muffy spank or strike or
shake either of the children. In fact,
he could only recall one or two occasions where Muffy had even raised her voice
to them, and those were under extremely stressful conditions. He denied engaging in loud arguments with
Muffy or in ever raising his voice to the kids, except maybe once or
twice. On cross-examination, the
prosecutor elicited from Biff that he was not at home at the time of Chase's
injury and that as far as he knew, Chase was in the sole care of Muffy at the
time.
Testimony of Lotta Money, Muffy's best
friend, that she often brought her children to Muffy's house, or Muffy brought
hers to Lotta's house, for play groups.
According to Lotta, Muffy was never cross or angry with her
children. In fact, Lotta often
complimented Muffy on how much patience she seemed to have for the
children. Lotta never saw Muffy strike,
or spank or shake either of the children.
In fact, they had frequently spoken about how neither of them felt that
physical discipline was an appropriate form of punishment for children.
Testimony of Dr. Hyly Regarded, a leading
nationally recognized neurologist that he has been in medical practice for 46
years, has served as the chief of neurology at the most prestigious hospital in
the City of New York for 20 years, that he is on the faculty of Columbia
University School of Medicine and has written extensively in scholastic and
medical journals on the subject of brain trauma injuries. Dr. Regarded testified that he reviewed the
records of the medical examinations and treatment of Chase as well as the autopsy
records. In his opinion, the manner of
Chase's death was entirely consistent with the factual description given by
Muffy - that Chase had fallen from the chair. The lack of any skull damage or
exterior bruising is explained by his fall onto a carpeted floor. Even without exterior signs of injury, the
extensive brain damage could just as likely have been caused from the fall as
from any other source.
Further, Dr. Regarded testified that he does
not subscribe to the recognition of "shaken baby syndrome." In his opinion, the type of brain damage
suffered by those patients previously diagnosed with the syndrome could not
have resulted from the shaking mechanism. In his opinion, the shaking of a
baby, alone, regardless of the amount of force applied, could not result in the
extent of the injury suffered by patients like Chase. Some external physical force to the skull is
required to create such damage. Dr.
Regarded bases his opinion on the past treatment of thousands of brain injury
patients and consultation and research in thousands of additional cases. Although less than 10% of these cases
involved infants or toddlers, his experience with those populations is still
extensive.
Dr. Regarded has appeared on at least 10
National Professional Panels at Brain Injury Conferences. He has always been asked to present his
opinion that there should not be a recognized, diagnosable condition known as
"shaken baby syndrome" as a counterpoint to the panelists who present
the symptoms and methods of diagnosis and treatment for the condition. On cross-examination, Dr. Regarded admitted
that "shaken baby syndrome" is listed as a recognized diagnosis in
most medical textbooks that cover the subject area. He also re-iterated that he never examined
Chase, only his medical records including the findings of Dr. Good and Dr.
Smart.
THE LAW:
Yours is a grave and serious obligation. You may find the facts as you are able from
the evidence presented before you. But, it is from these instructions that you
must take your guidance in applying the law.
A person is guilty of murder when she
commits an act with intent to cause death or serious bodily harm to
another or with reckless disregard for the likelihood of causing death
or serious bodily harm to another and death results to the other.
A person is guilty of manslaughter when
she commits an act under such extreme
emotional or physical upset or
state so as to be unable to form an intent to kill or
seriously harm another or to comprehend her act as reckless disregard for
the other’s safety, yet resulting in the death of another.
Manslaughter is a lesser-included offense to
murder. Although the defendant has been charged with murder, if the jury finds
that the conditions necessary to prove murder have not been proven beyond a
reasonable doubt, but conditions sufficient to prove manslaughter have been
proven beyond a reasonable doubt, the jury may not convict the defendant of
murder, but may convict the defendant of manslaughter.
It is the obligation of the prosecution to
prove each and every element of the crime beyond a reasonable doubt. If you are not convinced, beyond a reasonable
doubt, as to the commission or existence of each and every element of the crime
charged or its lesser-included offenses, then you must find the defendant not
guilty.
Retire now to the jury chambers and seek your
verdict. Only a unanimous decision of your number may be reported as a
verdict. Otherwise, please report to me
your inability to come to a verdict and be prepared to explain why you were
unable to do so.
Your first order of business will be to choose
a foreperson who will be responsible for reporting any verdicts or asking any
questions of the judge. The foreperson
may ask only those questions that the entire jury has certified for inquiry to
the judge.
Go now, deliberate, state your verdict and say
no more.
APPENDIX B
BLAW 3175 Jury Trial Exercise:
We, the jury in the case of THE PEOPLE vs. MUFFY render the following
verdict:
On the charge of MURDER: ___________ GUILTY
___________ GUILTY OF MANSLAUGHTER
___________ NOT GUILTY
___________ After deliberation,
we were unable to reach a verdict (show votes in each space above)
(NOTE: you may check one AND
ONLY ONE verdict. If you are not able
to reach a unanimous verdict, be prepared to explain to the class exactly why
you have been unable to do so)
Jury Members (print and sign)
