Please Read All the Instructions Before You Begin

In the 2016 superhero film Doctor Strange, the titular protagonist quips at the end, “You really should have stolen the whole book. The warnings come after the spells.” Similarly, many important jury instructions come after the trial.

Instructions are important, and people are often told to read all the instructions before starting on a task. A common trick in classrooms is to pass out a worksheet or a test with a long paragraph or list of instructions, often asking the reader to do time-consuming or complicated things. The trick is that the last instruction will be some variation of, “Ignore all the previous instructions.” It’s hard to say if this trick actually does what it’s intended to do or if it just trains people to skip to the end to check if there’s a “gotcha.”

But juries don’t get to skip to the end to check if there’s a “gotcha.” Juries often don’t even get all of their instructions before they start. Some instructions may be given verbally, while others may be given on paper. Judges are given a great deal of discretion when it comes to jury instructions, which means they tend to be inconsistent.

One of the reasons that jurors may find jury instructions confusing is they’re not optimized to be understood. But another reason may be that they aren’t given enough time to digest the instructions they’re given. Even assuming that voir dire keeps people who having auditory processing disorder or any similar problem that might make it difficult to absorb information via the spoken word, it’s very easy to zone out or miss something important when information is given to you only once and in only one form.

There are certain worries with passing a copy of every instruction to the jurors. That would involve a lot of paper. There’s also the worry that if you let the jurors keep copies of their instructions, they will be tempted to recheck those instructions during the trial, distracting them from possibly important evidence.

There have been calls to move jury instructions, especially ones concerning the law usually given before deliberations, to the beginning of the trial. That would theoretically give jurors a more accurate framework to fit the evidence they hear into because they’ll already know what questions they’ll be asked at the end. However, considering how shoddy recall of jury instructions given once orally can be, giving these instructions at the beginning of the trial may have a negative effect.

Assuming that the instructions, given orally and given once, are going to be misunderstood, misremembered, or forgotten by some jurors, the effect would be more pronounced if it extended over the trial.  For example, if a juror is given jury instructions involving contributory negligence at the beginning of the trial but misunderstands those instructions, she may focus on evidence that she believes goes towards contributory negligence but does not and may pay less attention to and forget evidence that actually does go towards contributory negligence. At least if it the instructions are given and misunderstood after all the evidence has been presented, there is a roughly equal chance that every piece of evidence, however that is defined, either caught her attention or failed to catch her attention. She will still fit the evidence that she has into an incorrect framework, but at least the information was not affected by her misunderstanding when it was received.

Giving jury instructions at the beginning and repeating them throughout the trial may increase jurors’ understanding of their instructions, but there is no substitute for actually making sure that the instructions are understandable and that the jurors understand. Gibberish given at the beginning and gibberish repeated throughout is still gibberish.