THE VALUE TO JURORS OF PRELIMINARY SUBSTANTIVE LEGAL INSTRUCTIONS IN COMPLEX CASES

Transcription

1 I DID NOT KNOW WHERE I WAS GOING, SO I ENDED UP SOMEPLACE ELSE THE VALUE TO JURORS OF PRELIMINARY SUBSTANTIVE LEGAL INSTRUCTIONS IN COMPLEX CASES Daniel J. Cooper, Ashley Schappell, and Kimberly S. Stern I. INTRODUCTION Speaking with thousands of real and mock jurors over the past fifteen years, we have never heard a juror say: "Wow, it really helped me understand this case because I did not have any preliminary substantive legal instructions to confuse me." Alternatively, on many occasions, jurors have criticized or complained about trial procedures that left them unsure about the relevance of much of the evidence presented during the trial, and then how to organize, recall, and apply the law once they were instructed about the law and the verdict questions - - at the end of the trial. Why then does there seem to be reluctance on the part of trial judges to give substantive preliminary instructions? 1 Typically, in a jury trial, jurors are not instructed on the substantive legal principles they are asked to apply until after closing arguments, right before they retire to deliberate. 1 Reference to substantive preliminary instructions, also referred to as pre-instructions or pre-charges, address the type of instructions noted by Macpherson and Krauss: If jurors begin a medical negligence trial with an accurate understanding of the health care provider s duty, they won t look for evidence of intent. In a products liability case, learning what the plaintiff is legally entitled to expect from a defendant manufacturer can help jurors put their ideas about assumption of risk in proper perspective. See: Tools to Keep Jurors Engaged. Susan J. Macpherson and Elissa Krauss. TRIAL, March

2 As to the preliminary instructions (those most commonly given before the presentation of evidence), while there are variations across the country as to the timing and the form of these non- substantive preliminary jury instructions, the typical preliminary introduction is procedural in nature, often sounding something like this: Ladies and gentlemen: I will now take a few moments to give you some initial instructions about this case, and about your duties as jurors. At the end I will give you further instructions about the law you ll be required to apply to the facts of this case Jurors are then instructed about their conduct including being told that they cannot talk with each other about the case, cannot talk with anyone else about the case, should not read any news stories or articles about the case, cannot do any research or make any investigation about the case, the order and burden of proof, the importance of judging the case on the evidence and other procedural matters. 2 In short, jurors are often left to speculate about what questions they will have to address, and the rules they will be required to apply. Not knowing the rules of the game before assessing the progress of the game, and the conduct 2 Today, all state and the federal courts, have some form of pattern jury instructions, which are either recommended or required in all cases. Responsibility for developing these instructions has been assumed by a variety of groups, including state bar associations, judicial conferences, state supreme courts, judges associations, administrative offices, law schools, and trial lawyers associations. The primary goals of pattern jury instructions are to increase the legal accuracy of instructions and thereby avoid reversals, eliminate argumentative language, save time, and finally, improve juror comprehension of instructions. Pattern instruction committees have been, for the most part, successful in achieving some of these goals, particularly a reaction in the number of appeals and reversals based on inaccurate instructions. They have generally failed, however, in their efforts to improve juror comprehension. Ellen Chilton & Patricia Henley, Improving the Jury System: Jury Instructions: Helping Jurors Understand the Evidence and the Law, PLRI Reports (Spring 1996)(empahis added). 2

3 of the participants, places jurors, whose primary purpose is to arrive at a decision based on the facts presented, at a distinct disadvantage. II. COMMON SENSE, LOGIC AND JUROR RESEARCH SUPPORT THE VALUE OF SUBSTANTIVE PRELIMINARY INSTRUCTIONS IN ENHANCING JUROR COMPREHENSION AND INTEREST Picture this situation, if you will, assuming you know nothing about the game of golf: You arrive at a golf tournament knowing nothing of the rules of golf or how it is scored, and are asked to determine how well a player is performing. You look at the scoreboard and see that next to his name, Tiger Woods has a red - 3 for the day, Rory McIlroy has a black 0, and Phil Mickelson has a black +2. The names are listed alphabetically. The person asking for your assessment tells you that you cannot talk with anyone else about the tournament, ask any questions, read any newspapers, or consult any sources. He then asks you to assess the play of each golfer and whom you thought was playing well. There would be a common sense rationale for suggesting any of the three Phil because he had the most points (+2); or Rory because he had zero mistakes (at zero); or Tiger because he was under the norm (- 3). Wouldn t it have made a significant difference, avoided confusion, and lead to a more accurate assessment, had you been told the fundamental premise in golf is that being under par, or in red indicates that one is playing very well? It is fair to say that the entire tournament might have been viewed differently from that point forward had the spectator been given at least a preliminary introduction to the rules and objectives of the game. 3

4 Like the spectator who has no idea of the rules or the objective of a sporting event, a novice juror, in the absence of preliminary substantive instructions, is often at a loss regarding what they are hearing, and the facts needed to assist them during deliberation. Learning, in the absence of this direction, and the selection of what to learn and remember can become quite misdirected. 3 Common sense, sound teaching principles, current decision making findings, and jury research, all suggest that instructing jurors about the basic substantive law relevant to the verdict questions they will be directed to answer, improves juror interest, understanding, and recall of the evidence, arguments, and applicable law. For over 20 years, there have been studies, and recommendations in many courts on the use of preliminary instructions. Despite encouraging findings that jurors learn and remember more when given preliminary substantive instructions the use of such preinstructions by many state and federal judges has been more of an exception than a rule. For example, in a study of 34 civil and 33 criminal trials involving 550 jurors, 95 attorneys, and 63 judges, Heuer and Penrod found that substantive preliminary instructions assist jurors in evaluating the evidence according to 3 The idea that jurors learn and remember selectively at trial is an observation with much support in recent writings on decision-making and heuristic basis. For a more lengthy discussion of juror decision making bias, See, Daniel J. Cooper, Loren H. Brown Christopher G. Campbell Edwin R. Cortes, The Myth of Juror Impartiality: Practical Strategies for Minimizing Juror Bias, Trial By Jury 2012 (PLI, 2012); see also; Daniel Kahneman, THINKING, FAST AND SLOW, (2011); Joseph Hallinan, WHY WE MAKE MISTAKES (2009):Ori Brafman & Rom Brafman, SWAY (2008). 4

5 the correct legal principles and aid in their recall of evidence and instructions. 4 Based on their study, in 1989, Heurer and Penrod reported that: Given the jurors favorable reaction to the pre- instruction procedure and the judges favorable reactions to verdicts emanating from trials that included pre- instructions, the overall suggestion is that pre- instructions did assist the jury in evaluating the evidence according to the correct legal guidelines. 5 Other research has been consistent with the Heurer and Penrod findings. In 1996, for example, Chilton and Henley observed that: Research has shown that juries function more effectively if they understand from the very start what laws have allegedly been broken, the meaning of key terms, and how witnesses testimony is intended to relate to the charges. With this information, the jurors are able to listen more closely for relevant evidence and organize the evidence in some meaningful, legal framework. 6 Similarly, Vicki Smith explaining her research with jurors in her doctoral dissertation observed: Pretrial instruction improved jurors performance in two ways. First, subjects who heard the law both before and after trial were better able to apply the law to the instant case than subjects in any other condition. The second benefit of the pre- charge was that pre- 4 See, Larry Heuer & Steven D. Penrod, Instructing Jurors: A Field Experiment with Written and Preliminary Instructions, 13 L. & Hum. Behav. 409, (1989). 5 Id. p Ellen Chilton & Patricia Henley, Improving the Jury System: Jury Instructions: Helping Jurors Understand the Evidence and the Law, PLRI Reports (Spring 1996). 5

6 instructed jurors were more likely to defer their verdict decision until after trial. Contrary to the fears of critics, pre- instruction discouraged midtrial verdict decisions. Jurors are expected to maintain an open mind throughout the trial and to weigh all the evidence before selecting a verdict. This finding indicates that important process benefits for jurors decision making may result from pretrial instruction. 7 With the advantages supported by research and the fears also minimized, what has been going on in practice at the trial level regarding the utilization of pre- instructions? As discussed below, it would appear that there has been a fair amount of suggestion, but not a corresponding level of implementation by trial judges. III. IN THE STATE TRIAL COURTS A number of states have examined the value of preliminary substantive instruction. In January of 2005, New York State civil and trial judges completed a field experiment using innovative jury trial practices in sixteen New York counties. 8 The findings from this project s Jury Instructions Committee included data collected from 35 trials where judges gave such preliminary 7 Vicki L. Smith. Impact of Pretrial Instruction on Jurors Information Processing and Decision Making. Stanford University. Journal of Applied Psychology 1991, Vol 76, No. 2, See also: Smith, V.L.. The Feasibility and Utility of Pre-trial Instruction in the Substantive Law: A Survey of Judges: Law & Human Behavior, 14, Elissa Krauss, Jury Trial Innovations in New York State. Improving Jury Trials by Improving Jurors Comprehension and Participation. May

7 instructions. 9 According to the Report of this Committee: Judges and attorneys thought pre- instruction was helpful to jurors understanding of the law and had a positive impact on trial fairness. 10 Further, Erie County Supreme Court Justice John P. Lane, a member of the Committee on Juror Questions commented, saying: Jurors appreciate receiving preliminary instructions on the principles of substantive law. They find the evidence easier to understand when they know the underlying principles of the case. Things that we take for granted are new to jurors. For example, we may assume that jurors know what negligence is. The fact is that most do not. Similarly, early explanations of the burden of proof and the no- fault threshold are also effective. 11 This work has not gone unnoticed by trial judges in New York State. In People v. Harper, 32 A.D.3d 16, 18, 818 N.Y.S.2d 113 (2d Dept.2006), for example, the Court stated that [c]urrent studies, particularly those conducted as part of the Jury Trial Project of the New York State Unified Court System, have demonstrated the benefits of substantive preliminary instructions. New York is not alone. Innovative work in Massachusetts offers similar observations. For example, according to Christopher Kenney: Instructing jurors on substantive legal principles early in the trial can significantly benefit juror understanding and recollection of both the legal principles they must apply and the facts of the case. Research on 9 The Report and Recommendations of the Jury Trial Project Committees is available at: 10 See note 8: Jury Trial Innovations in New York State 11 Jury Trial Innovations in New York State, supra n. 8 7

8 human information processing predicts, and studies confirm that providing a prior cognitive structure, or schema, for the evidence presented to a jury can influence the selection of evidence that is entered into memory and how that evidence is recalled. The framework provided by substantive preliminary instructions has been shown to focus the juror attention on legally relevant evidence and to facilitate juror recollection of probative facts and statements. This enhanced focus also aids jurors in making credibility assessments and drawing reasonable inferences during trial. 12 Other states including Arizona 13, Ohio 14, and California 15 have also noted the benefits of preliminary substantive instructions. Despite these observations, it seems to often require a request or motion from one of the litigants to encourage the trial judge to implement pre- instructions. As a result, pre- instructing on the law often becomes the exception, when in fact, it should work in the opposite way that the litigants move to convince the judge NOT to use preliminary substantive instructions because of some special circumstance in the specific case. IV. IN THE FEDERAL DISTRICT COURTS The federal bar has also examined the value of preliminary substantive instructions. As with the state findings, the value of such instructions for juror comprehension seems very well recognized on the federal level. And, 12 Christopher Kenney, Massachusetts Bar Association, Section Review: Thinking outside the box: A review of innovations in trial practice. V11-N2. (2009) 13 Arizona Supreme Court Committee on More Effective Use of Juries, Jurors: The Power of 12 (1994). 14 James Frank & Tamara Madensen, Survey to Assess and Improve Jury Service in Ohio, Appendix B to Report and Recommendations of the Supreme Court of Ohio Task Force on Jury Service (2004). 15 See e.g., Jacqueline A. Connor, Los Angeles Trial Courts Test Jury Innovation, 67 DEF. Counsel J. 186, (2000); See also Final Report: Task Force on Jury System Improvements 68 (Judicial Council of California 2004). 8

9 unfortunately, as with the states, the use of such instructions has not yet gained wide- spread acceptance by trial judges. In 1989, the American Bar Association observed that: substantive preliminary instructions allow the jury to understand in advance the context in which they will be required to evaluate or analyze the evidence. 16 Further, the ABA observed that: Research shows that telling the juror more, rather than less, in advance of the evidence assists the jurors in understanding and organizing the evidence as they hear it, improves their recall of evidence reduces the changes that the jurors will apply the wrong rules to the evidence and increases juror satisfaction. 17 In 2005, after a national symposium on the United States jury system, the ABA American Jury Project produced a single set of modern jury principles, entitled Principles for Juries and Jury Trials, ABA Principles that the ABA proposed be used as a model for state and federal trial courts conducting jury trials across the country. 18 With the goal of putting the jury principles articulated by the ABA American Jury Project into action, the Seventh Circuit Bar Association took a leading role nationwide in testing the usefulness of, and benefits derived from, the ABA principles in fifty jury trials 16 American Bar Association, Principles for Juries and Jury Trials, Commentary, at 33; see LaFave, Criminal Procedure 24.8[2d ed]; Schwarzer, Reforming Jury Trials, 132 FRD 575, 584; Cohen, The Timing of Jury Instructions, 67 Tenn L Rev 681, ABA Litigation Section Report, Jury Comprehension in Complex Caese (1989). Principle 6, Subdivision C.1 of the ABA s Principles for Juries and Jury Trials endorses using preliminary instructions. See See also, Elwork, Sales & Alfini, Juridical Decisions: In Ignorance of the Law or in light of It? 1L. & Hum. Beh. 163 (1977). 18 The ABA Principles and commentary are available at: Note: The ABA Principles for Juries and Jury Trials recommend that preliminary instructions include the elements of the charges and claims. 9

10 over a thirty month period beginning in October 2005 and continuing through April During the testing period of the Seventh Circuit Project, over four hundred jurors, over eighty attorneys, and twenty- two federal trial judges participated and provided input for analysis regarding the ABA principles. 20 According their Final Report: The Seventh Circuit Project jury trials in which this concept from the ABA Principles was tested resulted in over eighty percent (80%) of the jurors, over eighty- five percent (85%) of the judges and over seventy percent (70%) of the lawyers who participated stating they believed that this intended goal of enhancing juror understanding was accomplished. 21 Taking a look at Judges reactions, in thirty- four (34) trials where preliminary substantive instructions were given to the jury before opening statements, the judges in twenty- nine (29) or eighty- seven percent (87%) of the trials reported that they believed preliminary instruction increased jurors understanding of the case, and in twenty- seven (27) or eighty- percent (80%) of the trials, preliminary instruction increased the judge s satisfaction with the trial process. 22 A majority of the lawyers also reported that they believed preliminary instruction increased jurors understanding of the case and that preliminary instruction increased the lawyers satisfaction with the trial. And, over eight percent (80%) of jurors thought that preliminary instructions increased the fairness of the trial process, increased the jurors understanding of the case, and increased the jurors satisfaction with the trial process Seventh Circuit American Jury Project Final Report (September 2008) 20 ID. 21 ID. 22 ID. In addition, no judge reported that the judge believed juror understanding was decreased because of preliminary substantive instructions. 23 ID at page

11 More than five years later, based on our observations of trials around the country, it seems that despite these and other findings, the use of substantive pre- instructions in complex civil cases has not gained wide spread favor among the judiciary. Instead, substantive pre- instructions seem to have remained an anomaly used in the rare instance that both parties agree to their use and content. V. JUDICIAL INERTIA One would hope that improving juror comprehension is a shared value of all participants in a trial. But even if not shared by the litigants, it is hard to imagine that trial judges would not endorse any tried and tested method for improving juror comprehension. And, in light of the work on both the state and federal level, there now is ample evidence that juror comprehension and decision- making can be enhanced by the use of substantive preliminary instructions. So why has there not been broader implementation of the use of such instructions? More than twenty years ago, William Schwarzer observed that: Judicial inertia and fear of reversal continue to make many judges reluctant to adopt methods conducive to improved comprehension. 24 This inertia seems to remain a powerful influence today. 24 William W. Schwarzer, Reforming Jury Trials, 1990 U. Chi. L. Forum. 119,

12 One reason for this judicial inertia seems to be that judges appear content to leave the request for such instructions to the parties. While the judges pretrial orders often ask for suggested legal instructions, few ask specifically for proposed preliminary substantive instructions. Such instructions are neither specifically requested, nor barred. 25 Rather, the judges seem to take no position on the utility of preliminary instructions for the jurors. Not surprisingly, leaving the submission of such proposed instructions to the parties or suggesting that such instructions might be used if the parties can agree creates a large barrier to their use in a given case. It would be naïve to fail to recognize that it is sometimes the case that one litigant feels that juror comprehension of the law works to its benefit, while the other litigant believes that juror confusion or uncertainty about the law favors it. Hence, one side or the other often opposes the use of substantive preliminary instructions and waiting for the parties to agree to their use often leads to procedural, non- substantive preliminary instructions. However, from the vantage point of an objective, outcome- neutral observer that is from the perspective of the judge - - it would seem that every effort should be made to maximize juror interest, understanding, recollections and appropriate application of the relevant law. And, as has so often been the case on so many juror issues, on this issue of improving juror comprehension, Judge Jack Weinstein clearly and concisely advanced the fundamental proposition as to why such instructions make 25 See. Note 6: Ellen Chilton & Patricia Henley, Improving the Jury System: Jury Instructions: Helping Jurors Understand the Evidence and the Law, PLRI Reports (Spring 1996). 12

13 sense. Twenty- five years ago, Judge Weinstein urged that jury instructions be viewed as an opportunity to educate the jurors as we would want ourselves educated if we were in their position. 26 It is hard to understand why after so many examples of positive results, the endorsement of wise and experienced jurists 27, the emerging research on juror bias, especially on the power of framing, anchors, first impulses and selective learning and memory, that there has not been greater momentum for the use preliminary substantive instructions. It would seem that any remaining reluctance to use such instructions should generally be outweighed by the advantages these instructions have been shown to provide. After all, the jury system should value clarity over ambiguity, understanding over confusion, and reason over intuition. Preliminary substantive instructions have been shown to help judges assist jurors to heed Yogi s Berra s warning: "If you don't know where you're going, you'll end up somewhere else." We suggest that logic, experience, and evidence supports greater efforts by trial court judges to educate jurors on the law of a case especially a complex civil case - - before asking them to judge the facts of that case. 26 Weinstein The Power and Duty of Federal Judges to Marshall and Comment on the Evidence in Jury Trials and Some Suggestions on Charging Juries, 118 F.R.D. 161 (1988). At See: Seventh Circuit American Jury Project Final Report (September 2008) at 28. Chief Judge James F. Holderman observed: I have found that preliminary instruction helped to orient the jurors to the case and allowed the jurors to start making connections between the evidence and the disputed issues in the case more quickly. 13

14 Daniel Cooper, Esq. is the President of LitStrat Inc., a national jury and trial consulting firm with offices in New York and Miami. Mr. Cooper is a graduate of Brown University, Harvard University's Graduate School of Education, and Columbia University's School of Law. Kimberly S. Stern, Esq. is the Child Welfare Court Improvement Project Liaison to Kings County Family Court. The Child Welfare Court Improvement Project is a federally funded initiative that supports the Family Court's mandate to promote the safety, permanence and well being of abused and neglected children. Prior to taking this position in 2012, she practiced adoption law. Kimberly received her JD from Pace University School of Law, and her Bachelor's Degree in Psychology from Syracuse University. Ashley Schappell completed her undergraduate at University of Georgia where she double-majored in Psychology and Criminal Justice. She then continued her education at Teachers College, Columbia University where she received her MA in Clinical Psychology. After working as a trial consultant in San Francisco and teaching inmates at San Quentin Prison, she returned to school at Rutgers University where she is a 4th year psychology doctoral student; her research examines the impact of incarceration on mental health and the subsequent challenges encountered during reentry. 8/