Wednesday, May 23, 2012

Jury Instructions and Plain English

Last Friday, I had the opportunity to observe closing arguments in a local capital murder trial.  I was impressed with the advocacy and was moved by the arguments I heard.  One disturbing aspect of the process, however, was the reading of the jury charge.  The judge read the charge out loud to jurors who dutifully took notes and flipped through the document as he read.  I was struck by how poorly it was written.  This wasn't the fault of the judge or lawyers in the case because the charge was taken, in large part, from pattern instructions.

The instructions were rife with style problems and legalese.  The definitions were arcane and incomprehensible to jurors without legal training.  As a result, little of the argument turned on the jury charge.  This was a wise move by the lawyers in the case -- the poorly written charge would never lead the jurors to clarity or truth.  But an unfortunate byproduct of the lawyers being forced into this path was the subjugation of law to gut instinct, reason to passion.  All of this in one of the most solemn settings our justice system faces:  a man on trial for his life (in this case life without parole) for taking the life of another.

We can do better.  Plain English in jury instructions should be a priority for those in the legal writing community.  In 1998, Professors Steele and Thornberg published an article, Jury Instructions: A Persistent Failure to Communicate.  The article "report[ed] on an empirical study of juror comprehension of pattern jury instructions. It demonstrated that comprehension of the original instructions was poor, but that rewriting significantly improved their ability to understand and explain the meaning of the instructions."  Nearly fifteen years have passed since this study was dissemenated.  Some efforts have been made in the area, but confusing instructions persist.  If it is true that rewriting jury instructions in plain English can improve juror comprehension, then we owe it to our clients and communities to do so.


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While I appreciate the lawyers' decisions to turn away from in the jury instructions in the case you observed, I disagree with their approach. Often, part of the reason (albeit not the main one) jury instruction are difficult to understand is that those who write the pattern instructions are often constrained by the legislation the instructions must follow. Statutes are often poorly worded and confusing, but they are the law and the law must be properly recited in the instructions. Given this reality, it is the job of the trial lawyer to decipher and interpret the instruction for the jury in closing. I do this in every case I try. And, without fail, the jurors sit up, listen, and take notes. They WANT to do the right thing and they are LOOKING for direction on how to do the right thing. A trial lawyer must take on the job of explaining the instructions and how to apply them to the facts of the case the jury just heard. To fail to do so is to fail the jury and to fail the client.

Posted by: Julie Vacura | May 23, 2012 11:22:13 AM

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