Constitutional Law; It's a Lot Like Cornbread and Slaw

'Nuff said.

Judicial Decisions Are Based on the Rule of Law. Right?

In the video below, Federal Appeals Court Judge Richard Posner talks about judicial decision-making. Students might be surprised to hear that judges often decide cases based on their feelings; political feelings, moral feelings or emotional feelings. A judge may be more inclined to decide a case based on the social outcomes of the decision rather than "fancy theories about the Constitution."

Is this the way our BLAW texts describe judicial decision-making?  If not, why not? This isn't really controversial thinking among those who study and write about the topic. Do we continuing to perpetuate myths about the law in order to preserve its legitimacy?

To be educated people, our students need to to be exposed to the nuance of judicial decision-making. The Legal Environment class that we teach them is likely the only law class that they will ever take. These issues must be raised.

Precedent / In The Air Tonight

I was previewing this video thinking it might provide a musical lesson about the concept of legal precedent.  It sort-of does. But what jumped out at me was another lesson on potential copyright infringement.   Compare and consider.

(Listen from :34 to 1:05)


(Listen from  0:53 to 1:22)

Law and Politics... and Law.. and Politics

What is the true nature of Law?  Isn't it all just a big discussion?

Click here or on the image below to watch the video.

Criminal Defendant is Entitled to Raise any Reasonable Defense; Including, "I am a Bad Person."

In limited circumstances, a criminal defendant may seek to avoid a conviction by introducing evidence of his or her good character.  The circumstances under which such evidence may be used are limited, but the defense is essentially, "I couldn't have committed that crime because everyone knows that I am a good person."  Sometimes, a defendant is able to avoid conviction, not by being a good person, but by being bad. "I couldn't have robbed that bank because while the bank was being robbed I was robbing a liquor store." But in an ironic twist on a character defense, a Texas teacher accused of improperly touching a seven year old African American student has raised the defense, "I couldn't have done that because I am a racist and don't like to touch Black people."  Will the prosecution now have to put witnesses on the stand to testify to the defendant's character for being tolerant?

Reality is truly stranger than fiction.

2013 ALSB Charles M. Hewitt Master Teacher Competition

This past Thursday I had the honor of making a teaching methods presentation to the assembled membership of the Academy of Legal Studies in Business as one of four finalists in the Charles M. Hewitt Master Teacher competition. The other three finalists were:

Sandra Benson, Middle Tennessee State University, "The Legal Beagle News Show" 

John McArdle, Salem State University, "What's So Funny about Peace, Love, Understanding and Pasta?"

Robert Prentice, University of Texas - Austin, "Teaching Behavioral Ethics"

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:

o   http://pattyjaneleon.blogspot.com/2012/04/tomato-patch-murder-crowder-up-for.html

o   http://livedash.ark.com/transcript/american_justice-(justifiable_homicide_)/6120/AETVP/Wednesday_January_06_2010/157987/

o   http://www.youtube.com/watch?v=Cwm990GA7TE   

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?

·         Show video of Frank Galvin’s summation in “The Verdict” imploring the jury to do “justice” despite the judge’s instructions to the jury to disregard the testimony of his key witness: http://www.americanrhetoric.com/MovieSpeeches/moviespeechtheverdict.html  Galvin tells the jury, “Today, you are the law.”

·         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.

Founder and Content Generator for the Profblaw YouTube Channel: http://www.youtube.com/user/profblaw?feature=mhee featuring songs for use in legal education. The profblaw channel has 286 subscribers.  The videos housed there have been viewed over 120,000 times (average of over 4,100 video views per month) and have been featured on the ContractsProf Blog ( i.e. http://lawprofessors.typepad.com/contractsprof_blog/2012/04/professor-deangelis-on-the-mirror-image-rule.html )

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)

1.____________________________________

______________________________________

2._____________________________________

______________________________________

3.____________________________________

______________________________________

4._____________________________________

_______________________________________

5._____________________________________

______________________________________

6._____________________________________

_______________________________________

7._____________________________________

______________________________________

8._____________________________________

_______________________________________

9.______________________________________

________________________________________

10._____________________________________

______________________________________

11.______________________________________

________________________________________

12.______________________________________

_______________________________________

"Jury, Jury Halleluiah!"

Yesterday, I had the honor of making a teaching methods presentation to the assembled body of the Academy of Legal Studies on Business as a finalist in the Charles M. Hewitt Master Teacher Competition. The title of the presentation was "Jury, Jury Halleluiah"; Replacing Myths With Underestanding. The materials from the presentation will be posted in this blog after the competition is completed. However, if anyone is curious about the source of the quote in the title, it comes from the Chuck Brodsky song, Talk to my Lawyer.