ARTICLE: BIFURCATED JUSTICE: HOW TRIAL-SPLITTING DEVICES DEFEAT THE JURY'S ROLE Skip over navigation
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Copyright (c) 1995 The University of Toledo
Toledo Law Review

ARTICLE: BIFURCATED JUSTICE: HOW TRIAL-SPLITTING DEVICES DEFEAT THE JURY'S ROLE

SPRING, 1995

26 U. Tol. L. Rev. 505

Author

Jennifer M. Granholm * and William J. Richards **

Excerpt

DIVIDE and conquer is the defense lawyer's strategy. First, convince the judge that the case to be tried is extraordinarily complex. Second, fractionate the trial so that the jury is unable to organize the story in a linear manner. Third, dissect the case in order to distract the jurors from its organic humanity. Finally, when the proofs are in, divide some more. Send the jury away with specific interrogatories calculated to purge all human experience from the verdict.

Attorneys are ever-urging judges to deconstruct trials. This trend is disguised in varied procedural forms. In civil cases, it is the bifurcation of issues into separate phases for trial, or the special verdict questionnaire put to juries at the end of trial. In criminal cases, it is the severance of defendants or issues from one another, or court-ordered stipulations, which prevent the jury from considering elements of the crime. While robed in procedure and touted as the logical panacea to complex trials, such trial management devices have a profound substantive impact upon a jury's evaluation of the evidence presented, and in turn, upon its ability to reach a verdict consistent with the law, the evidence and the truth.

Except in narrowly defined circumstances, we urge the elimination of bifurcation, severance, forced stipulations and special verdicts. Advanced under the guise of judicial efficiency and logic, these devices prevent a jury from bringing to the "recipe" of justice the very ingredient we expect from them -- namely a leavening of ...
 
 
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