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March 8, 2005

If you’re gonna do it, do it right — right?

I jokingly call Blakely the case that launched a thousand law review articles, and I have a new one to spotlight (on the heels of the numerous articles noted here).  J.J. Prescott and Sonja Starr have an interesting piece entitled "Improving Criminal Jury Decision-Making After the Blakely Revolution," which to proposes a model for sentencing-stage jury proceedings that would foster improved decision-making by juries.   An abstract and the full paper can be accessed here.

As detailed in their abstract, Prescott and Starr suggest that effective jury decision-making post-Blakely calls for "bifurcation of proceedings, partial application of the rules of evidence, formulation of special verdict forms in certain specific ways that will minimize framing effects, structural simplification of sentencing tasks, a more active jury, and guidance for jurors on bias-reducing deliberation structures."  The issues and concerns spotlighted in this paper will become even more pressing if, as Shepard hints (summary here, questions here), juries may some day have to consider prior conviction facts as well as offense facts that can enhance sentences.

In the immortal words of Wham!, "If you're gonna do it, do it right — right?"

March 8, 2005 at 11:38 AM | Permalink


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Tracked on Mar 8, 2005 2:24:07 PM


If juries are someday going to have to consider prior conviction facts, current defense lawyers are going to have to start considering what future juries might say about cases in the process of being tried. I hope they all have crystal balls. They will have to object to things not relevant at the time, and present defenses for the record of things not being accused now, nor breaking any existing law, just in case they will be accused in the future. At that future time, the rules of evidence etc. will no longer be available. This is not justice. This is worse than a travesty of justice.

Posted by: Jeannie | Mar 8, 2005 12:17:12 PM

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