[The material below may be used for educational or academic purposes if cited or referred to as: Peter Tiersma, The Language of Jury Instructions, http://www.languageandlaw.org/juryinst.htm] The Language of Jury Instructions Numerous studies have shown that jurors have difficulties comprehending the legal rules that are supposed to govern their verdicts. Some of the earliest work was done by Robert and Veda Charrow. The Charrows studied 14 pattern civil jury instructions from California. Subjects listened to a tape recording of the instructions and then paraphrased them as best they could. Only about one-third to one-half of the information in the instructions found its way into these paraphrases. The Charrows also discovered that when they revised the instructions to eliminate many of their more troublesome linguistic features, comprehension scores improved substantially. A possible objection to the Charrow's research is that their mock jurors did not watch a trial, hear the argument of counsel, or deliberate. Some judges and lawyers suggest that all of these things will increase juror comprehension and, in a sense, compensate for inadequate instructions. To test these and other points, the research team of Amiram Elwork, Bruce Sales, and James Alfini obtained a videotape of an actual criminal trial. They recruited volunteer jurors, who were randomly assigned to mock juries of around six persons each. These groups watched the videotape of the trial, at the end of which they received either the original jury instructions, or jury instructions that had been rewritten in conformity with plain language principles. Juries deliberated and reached a verdict. Subsequent questioning of individual jurors about legal points raised in the instructions revealed that those who received the original instructions responded correctly an average of 40% of the time. Those with the revised instructions did far better: 78% answered correctly. Many other studies, using varying research methodologies, have come to similar conclusions. Another type of evidence that jurors have trouble understanding their charge is that they often ask the judge questions about it after they begin to deliberate. Questions almost always indicate uncertainty or lack of knowledge; they therefore suggest that the instruction process has failed in some way. Some conscientious judges do their utmost to provide a meaningful answer. But just as common--perhaps more common- -are responses such as the following: "No additional instructions will be given." "Please read the instructions again." "You have received all of the instructions...no clarification will be provided."
These are actual--and quite representative--answers from Washington state judges to jury requests for clarification. A final type of evidence that jurors have difficulty understanding instructions is that they are sometimes caught looking words up in dictionaries. I did some research a number of years ago and found a substantial number of such cases. Jurors tended to look up words like assault, battery, culpable, inference, insanity, legal cause, malice, motive, murder, negligent, premeditate, preponderance, proximate, rape, utter, wanton and wilful. Technically, a jury is not allowed to consult outside sources, so looking up words in a dictionary is considered misconduct. In most of the above cases, the judge decided that the error was harmless. But that is not always the case. Last year, according to news reports, a federal court set aside the death penalty verdict of a man who had spent around twenty years on death row, in part because of evidence that his jury had looked up the words mitigate, extenuate, and vindication. Why is it that many jurors have trouble understanding their instructions? The most basic problem is vocabulary. It is amazing how many jury instructions use technical legal terms like malice aforethought or accessory after the fact or utter a forged instrument. Mostly there is a definition, but--as in medicine--the cure may be worse than the disease, in that the definition may be as hard to understand as the term it defines. Even worse are words or phrases with a specific legal definition, but with a very different meaning in ordinary language. Unusual and archaic terminology is another problem. California courts have struggled with a jury instruction that penalizes the use of a dirk or dagger. Finally, the vocabulary is typically highly formal. Jurors are never told to decide something; they must determine or conclude something, or--even better--reach a determination or conclusion. Jurors may be told they can credit or discredit a witness, rather than believe or not believe her. Beyond vocabulary, instructions are problematic linguistically because they are often poorly organized, lexically quite dense, and expressed in rambling sentences that start with a proviso, state a rule of law, and end with several exceptions. Moreover, they tend to be written at a high level of abstraction, proclaiming general principles of the law of murder, for example, rather than telling jurors in more concrete terms how they are to go about their task of deciding whether the defendant in question should be found guilty of first degree murder. NOTE: See Robert P. Charrow & Veda R. Charrow, Making Legal Language Understandable: A Psycholinguistic Study of Jury Instructions, 79 Colum. L. Rev. 1306 (1979). See also my articles and additional sources contained therein: The Rocky Road to Legal Reform: Improving the Language of Jury Instructions, 66 Brooklyn Law Review 1081 (2001), Reforming the Language of Jury Instructions, 22 Hofstra L. Rev. 37 (1993), Jury Instructions in the New Millennium, 36 Court Review 28 (1999). Besides ongoing efforts in California, a few jurisdictions have made some real progress in this area, including Alaska,
Arizona, and Michigan (criminal instructions). Generally, the federal jury instructions (particularly those of the Ninth Circuit) are also relatively comprehensible. Defining the Crimes Let's examine some specific examples. For a jury to decide whether a defendant is guilty of crimes such as murder or assault or mayhem or arson, it must understand how these crimes are legally defined. An immediate problem is that the ordinary conception of crimes sometimes differs from the legal definition. For instance, a burglary normally means something like this: breaking into a house or perhaps other building and removing something with an intent to steal it. In contrast, the legal meaning is to enter a building without authorization and with the intent to commit a felony inside. Breaking into a house with an intent to kill the occupant, but without taking anything, would be a burglary in legal terms, but not in ordinary language. Likewise, most of us think of an assault as involving a physical or perhaps verbal attack. Legally, however, it involves a threat or attempt to physically injure someone else. Actually inflicting injury on someone is legally a battery. Or consider mayhem. It is normally used to refer to a state of violent disorder or confusion, roughly synonymous with havoc. The law defines it differently. California Penal Code section 203 defines mayhem as unlawfully or maliciously depriving someone else of a member of his body, or disabling or disfiguring a part of the body, or cutting the tongue, putting out an eye, or slitting the nose, ear, or lip. The fact that the ordinary and legal definitions of crimes often differ suggests that jury instructions play an essential role in educating jurors regarding the proper legal standard. This is not always an easy task, especially when the popular conception of a crime differs in some important way from the legal definition. Studies by psychologist Vicki Smith suggest that it is very hard to dislodge the ordinary meaning of specialized terms like burglary, even with specific instructions on the elements of the crime. This makes the case for comprehensible instructions all the more compelling. Consider the crime of murder. California courts previously defined this crime to juries in the following way. First, the instructions stated that the defendant is accused of having committed the crime of murder, a violation of Penal Code section 187. The instruction continued by quoting the statute verbatim. It then lists the elements of the crime (I omit the options relating to killing a fetus and felony murder):
In order to prove this crime, each of the following elements must be proved: 1. A human being was killed; 2. The killing was unlawful; and 3. The killing was done with malice aforethought. This seems like a relatively straightforward definition, but in fact it is highly problematic. One major difficulty is that it provides jurors with an abstract principle of law without telling them what to do with this information. The problem is compounded by the use of passive constructions and nominalized verbs. The instruction tells jurors that the following elementsmust be proved, but does not inform them who must do the proving. This is the prosecutor, one would assume, but jurors should not have to be making these sorts of assumptions. Why not just say that to convict the defendant, the prosecutor must prove each of the following elements? The first element is also in the passive voice, requiring the jury to find that a human being was killed. But obviously, their job is not to decide simply whether some human being out there suffered a premature death. The jury must determine whether the defendant killed a particular person. The second and third elements are equally abstract, referring to the killing instead of specifying what the defendant must have done or intended. A useful instruction would provide jurors with an clear roadmap or flowchart that they can follow to reach a verdict. For instance, we might tell jurors that their first task is to determine whether the defendant murdered someone. To be exact, jurors need to decide whether the defendant killed someone with malice aforethought. If so, the jurors should next decide whether the defendant had a legally recognized justification or excuse for the killing. If there was no justification or excuse, the jury should now decide whether the murder was first or second degree. Instead of giving jurors such a roadmap, judges typically read one abstract proposition of law after the other. An equally serious problem is the pervasive use of legal concepts and terminology. Recall that to be convicted of murder, the defendant must have killed someone with malice aforethought. The odd word order is a leftover from Law French, in which adjectives usually followed the nouns they modified. Other remnants of this process include attorney general, condition precedent, fee simple, letters patent, and notary public. Not only is the word order strange, but malice is used in an unexpected sense. The American Heritage Dictionary defines it as: "A desire to harm others or to see others
suffer; extreme ill will or spite." This might suggest to a juror that killing someone who you hate--even if the killing is involuntary or accidental--is murder. In reality, accidentally killing someone you hate or against whom you have malice might be manslaughter, but it would normally not be murder. Moreover, the archaic word aforethought logically suggests that the killer must have thought about the act beforehand, suggesting deliberation or premeditation. This also is quite wrong. The legal meaning of malice aforethought is thus inherently obscure and counterintuitive. The instructions do try to clarify these issues, pointing out that "malice aforethought does not necessarily require any ill will or hatred of the person killed" and explaining that "[t]he word 'aforethought' does not imply deliberation." But if murder does not require malice, or thinking about the act in advance, why do we instruct jurors that they must decide whether the killing was done with malice aforethought? One would hope that such a perplexing term could be avoided entirely. Unfortunately, at least in California, the phrase is so familiar to lawyers and judges that it is unlikely to disappear anytime soon. In that case, the only option is to define it. The former California instructions defined malice aforethought as follows: "MALICE AFORETHOUGHT"--DEFINED "Malice" may be either express or implied. [Malice is express when there is manifested an intention unlawfully to kill a human being.] [Malice is implied when: 1. The killing resulted from an intentional act, 2. The natural consequences of the act are dangerous to human life, and 3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.] This relatively unhelpful definition begins by categorizing an obscure term--malice aforethought--into two obscure subcategories: express malice aforethought and implied malice aforethought. We learn that malice is express when there "is manifested an intention unlawfully to kill a human being." Note the passive verb: is manifested. Who must have manifested an intention? Read literally, it is enough that someone--anyone in the world--manifested an intent to unlawfully kill a human being. Obviously, this is absurd. What express malice aforethought seems to require is that the defendant intended to kill the victim. It would be so much easier for the jurors if the instruction simply told them that what they have to decide is whether
the defendant intentionally killed the victim. An additional or alternative instruction dealing with implied malice aforethought would also be necessary in some cases and would be somewhat more complicated. But where all that is required is an intentional killing, there is simply no excuse for throwing the phrase malice aforethought at jurors, telling them it has nothing to do with either malice or thinking about the killing beforehand, distinguishing between express and implied malice aforethought, and finally providing them with an obscure definition of these terms. Fortunately, now that California has adopted jury instructions in more ordinary language, specifically drafted to be more comprehensible to jurors, the situation is greatly improved. But in most states, problems such as those described above continue unabated. The movement towards reform Several years ago, the Chief Justice of California appointed a task force to revise California's jury instructions using language that jurors would better understand. I was appointed to the criminal subcommittee of the California task force. The criminal committee drafted a large number of new jury instructions and released them for public comment (around 700). We then responded to the comments and continued the process of drafting additional instructions. It is worth noting that our proposed instructions are not a revision of the CALJIC instructions, but that we had to draft them from scratch. The CALJIC committee (which is constituted by the Los Angeles Superior Court), along with West Publishing Company, has a copyright in its instructions and declined to cooperate with the Judicial Council task force, making it necessary to write completely new instructions. Although this meant that it took substantially longer to complete the instructions, it may result in a better product in the end. You may notice that at times, especially with regard to instructions dealing with the elements of the crimes, the language of CALJIC and our instructions is identical. The reason is that both instructions derive their wording from the relevant provision in the Penal Code. In my view, we adopt a bit too much of the language of the Penal Code, but this is obviously a difficult issue. The only way to be absolutely sure that the instructions are true to the statutory language is to copy the language verbatim. On the other hand, the statutory language was not meant to be read by ordinary citizens. The task force completed its work in early 2005 and submitted its instructions to the Judicial Council of California for approval. They were approved by the Judicial Council on August 26, 2005. The California Rules of Court strongly recommend their use.