April 15, 2006

Jury instructions up close

I've always wanted to be selected as a juror in a law case but I could never pass the selection tests. It's probably because I've participated in so many trials as an expert witness. Knowing stuff can work against you in this strange world. Linda Seebach sent me an article by Arnold Kling (Cato Institute) that appeared in TCSDAILY on April 14 ( (here) called Law and Order. It's a very well written account of the author's recent experience as a juror in a murder case. He has some interesting things to say about how the system works from the stage of jury selection to the deliberation room. The defendant was a 17 year old  who, after a high school football game, upon demand, gave his baseball bat to an 18 year old friend, who used it to hit and ultimately kill the victim. During his interrogation, he  confessed to his role in the killing.

The confession interview was video taped and played to the jury, but a previous interview with him was not recorded.  Information obtained by the police in the first interview must have led them to do a second one, but there was no way for the jury to learn what was said in it, leaving unanswered the question of whether he might have been coerced or misled to confess. Was the following confession statement voluntary?  Police would do themselves a favor by taping the ENTIRE interaction with suspects, as noted in my recent post (here).

Kling didn't focus on this but he had some devastating things to say about the instructions given by the judge to the jury before they went to the deliberation room:

Part of the problem was the way the instructions were formatted. The instruction about the charges used phrases such as "the defendant caused the death," but the defendant was not the one who hit the victim with the bat. Instead, the defendant was accused of "aiding and abetting," so that you had to say that what he did "aided and abetted" the causing of death. The instruction for interpreting "aiding and abetting" was on a separate page, which forced you to go back and forth between the pages, mentally cutting and pasting, in order to parse the instructions...
The user-unfriendly nature of the instructions made our deliberations more protracted and difficult than they would have been otherwise. It added to the strain of what was already a stressful situation. I could not help wondering why the instructions were written this way, and by the end of our deliberations, I had three hypotheses, or possible explanations.

1. The judge does not understand the needs of jurors, and he does not know how to write clear, user-friendly instructions.

2. The judge wants us to deliberate for days and have difficulty reaching a verdict. He was secretly cackling to himself sadistically as he wrote the instructions ("Bet they go back and forth at least three hours on that one. Oh, ho--this one should tie them in knots.")

 3. The instructions are subject to input and negotiations from the attorneys in the case. This would cause the instructions to wind up looking like a committee document. Memoranda produced by committees are characteristically ambiguous, and ideas that are supposed to be logically connected can become physically separated in a collective editorial process.

Here Kling echoes what linguists have been saying for years. Robert and Veda Charrow started it off back in the 1970s with research that showed that jurors were generally confused and even misinformed by jury instructions (Columbia Law Review, 79:7: 1306-1374).  Many others since have followed up on this topic, including Peter Tiersma's recent work with the California Judicial Counsel's Task Force on Jury Instructions.  Judges worry about giving jury instructions that might get the case overturned on appeal but one must wonder why it is that jurors can't be told what  confusing instructions really mean. At least part of the problem  stems from law's apparent need to use legal language to non-lawyers even when they don't understand it. The concepts of register change and participant perspective don't seem to occur to them. Tiersma's book, Legal Language (Chicago, 1999)  details this issue at length. It's a very important book.

Kling also worried about the meaning of voluntary as it relates to the Miranda warning, particularly since the prosecution argued that the confession was given voluntarily. He then offered his own jury instruction suggestions for this:

For the defendant's statement to be considered voluntary, you must be satisfied that

1. The defendant clearly and completely understood the charges. The defendant does not need to understand why the state is making its accusations or the possible consequences of conviction, but the defendant does need to grasp the nature of the  crimes that are given in the accusation.

2. The defendant made an intentional decision to speak in his own defense without the aid of an attorney.

User-friendly clear language? Understandability?  Intentional decision making? Our court system could do a lot better.

Posted by Roger Shuy at April 15, 2006 04:39 PM