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
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
used it to hit and ultimately kill the victim. During his
interrogation, he confessed to his role in the killing.
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
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
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:
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
abetting," so that you had to say that what he did "aided and abetted" the causing of death. The
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,
2. The judge wants us to
deliberate for days and have difficulty reaching a verdict. He was
secretly cackling to
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
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
Here Kling echoes what linguists
have been saying for years. Robert and Veda Charrow started it off back
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
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:
the defendant's statement to be
considered voluntary, you must be satisfied that
defendant clearly and completely understood the charges. The defendant
does not need to understand why the state is making its accusations or
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?
Intentional decision making? Our court system could do a lot better.
Posted by Roger Shuy at April 15, 2006 04:39 PM