Second Circuit Judge Advocates for System to Certify Questions of Foreign Law. In its recent decision reversing Citigroup’s jury win over Terra Firma, the Second Circuit Court of Appeals found the trial court misapplied English law. In Terra Firma Invs. (GP) 2 Ltd. v. Citigroup Inc., 2013 U.S. App. LEXIS 10967 (2d Cir. May 31, 2013), the Second Circuit held that a jury instruction incorrectly placed the burden of proving reliance on Terra Firma. Reversing the trial court’s determination, the Court of Appeals held that under English law a claim of misrepresentation gives rise to a rebuttable presumption of reliance, thereby shifting the burden of persuasion to the defendant.
Writing a separate concurring opinion, Circuit Judge Ray Lohier agreed with his colleagues’ interpretation of English law, but expressed concern about “[a] growing number of international commercial disputes, [in which courts] are asked with increasing frequency to decide issues that require us to determine and apply foreign law.” Judge Lohier warned of the escalating challenge of resolving “unsettled questions” and invoking “important [foreign] policy preferences.” He advocated for a “formal certification process,” a foreign-law analogue to the domestic certification procedure used to resolve questions of state law that are raised in federal court.
The Terra Firma case joins a larger judicial dialogue regarding the resolution of civil disputes with pivotal foreign-law elements. Judges are experts in American law. As the Terra Firma concurrence observed, the Federal Rules of Civil Procedure recognize this limitation and directly address a federal court’s interpretations of foreign law under Rule 44.1, but that only begins the discussion. For example, some courts have focused on the manner by which a court determines questions of foreign law, e.g., Bodum U.S.A., Inc. v. La Cafetiere, Inc., 621 F.3d 624, 629 (7th Cir. 2010), whereas others have considered the independent weight to afford these expert materials on foreign law, e.g. Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumu Negara, 313 F.3d 70, 92 (2d Cir. 2002). In Karaha Bodas, the Second Circuit stated that “a foreign sovereign’s views regarding its own laws merit—although they do not command—some degree of deference.” Id. Judge Lohier proposes formalizing a mechanism for learning foreign sovereigns’ views of their own laws, and to codify that deference then owed to that view. It remains to be seen if his suggestion is acted upon by the Supreme Court and Congress.
Cal. Appellate Court Reverses Conviction Due to Juror’s Review of Prior Judicial Opinion. In a case that will likely further call into question the test for juror bias, a California appellate court reversed the conviction of Michael Antonio Pizarro, whose first-degree murder charges had already been the subject of two trials, an evidence-screening hearing, and now three appeals. People v. Pizarro, 2013 WL 2321442 (Cal. App. May 21, 2013). Although the court also reviewed the trial court’s handling of the evidence-screening hearing for procedural error, the court ultimately reversed the conviction due to one juror’s use of extraneous material—namely, the appellate court’s own 2003 opinion reversing the defendant’s first conviction. The juror admitted to seeking out the judicial opinion because “[he] was lost . . . [and wanted] to understand how the series of events had happened.” (second and third alterations added).
The Pizarro court applied the two-part test for identifying and remedying the prejudicial effects of extraneous material, as described in In re Carpenter, 9 Cal.4th 634 (1995). However, the court criticized the California Supreme Court’s test from Carpenter, calling it “confusing . . . contradictory . . . [and] undermin[ing] the integrity of our jury system.” The Carpenter test requires an inquiry, first, into whether extraneous material had an inherent and substantially likely influence on the jury’s verdict or consideration of the defendant’s case; and, second, into whether the material actually biased the juror. The court criticized Carpenter primarily for that decision’s internal inconsistencies, conflicts with other lines of authority, and failure to protect a defendant’s right to an impartial jury.
The Pizarro court repeatedly referred to its concern regarding Carpenter’s invocation of harmless error analysis and a presumption of prejudice rebuttable by “overwhelming” evidence as to the defendant’s guilt. Judge Kane, writing for a unanimous panel, called on the California Supreme Court to reconsider Carpenter. He cited, in particular, a desire for explicit recognition that, in addition to or instead of causing a different voting outcome, extraneous material can influence a juror by variously “lowering the prosecutor’s burden, shifting the burden to the defense, making the juror skeptical of defense evidence or theories, depriving the complaining party of thorough consideration, [or] depriving the complaining party of thorough consideration of his case.” The court observed that, in cases when error is of a type that undermines the integrity of a trial—such as actual or inherent juror bias—harmless error analysis is out of place.
The Pizarro court ultimately determined that the juror’s misconduct warranted reversal of the conviction due to his inherent bias, using either Carpenter’s two-step inquiry or a pre-Carpenter analysis, which was based on People v. Marshall, 50 Cal.3d 907 (1990), and People v. Holloway, 50 Cal.3d 1098 (1990). But given the rare request by the California appellate court for the California Supreme Court to reconsider its test, and the extreme circumstances of a thrice reversed conviction, further consideration of the appropriate test for juror bias is likely to come.