In my last blog,[1] I touched on why jurors often struggle to understand jury instructions or charges and how jurors misunderstanding the charge can have detrimental consequences to the trials they are jurors for and for the legal system as a whole. But in this post, I want to explore some ways to make jury instructions better by making them more clear and more understandable to a lay juror with no legal experience or knowledge.
When
jurors misunderstand the instructions, it isn’t typically based on their lack
of ability to understand complex legal theories, or jurors’ inability to use
complex reasoning. Instead, jurors often misunderstand instructions because of overly
complex or legalistic language and writing. So, ideally, jurors will understand
instructions better if they are written and given more clearly, understandably,
and with their audience in mind.
Improving
Understanding Through Timing and Frequency of Instructions
The
first way juror understanding can be improved has nothing to do with how they
are written. Giving juries instructions at multiple stages throughout the trial
can help jurors better understand the charges.[2] Preliminary instructions, before opening arguments
and during voir dire, could lead to improved understanding of the final charge on
its own. Starting the jurors off with a better understanding of duties a
defendant may owe or how a plaintiff might be equally liable can give them a
better understanding as a whole to put other issues into context.[3]
Likewise, reiterating
or incorporating the charge into closing arguments or right before may increase
understanding because jurors are bringing their full attention to the legal
arguments and making a decision.[4] Reiteration of the instructions
at this point will also help give jurors context for the arguments they are
hearing during closing.[5] Both the repetition of the
charge and the timing of the charge play a role in improving jury understanding
of instructions.[6]
Improving Instructions
Through Common Structural Issues in Charges
Jurors
often have a common problem with structural errors in jury charges, that is errors
stemming from jurors not understanding the relationship between instructions or
why they are asked to disregard certain information yet give more attention to
other facts.[7]
One way to overcome this common mistake is to provide explicit guidance and explanations
to help jurors understand the connection between the different instructions.[8] Another way to highlight
and make this type of relationship understandable is to arrange the instructions
in a logical order, which might seem obvious but can be easy to forget because the
order makes sense to a trained legal mind.[9] Another way to help
overcome these structural issues is to give jurors explicit definitions or
legal dictionaries to help them better contextualize the instructions.[10] Finally, explaining to
jurors why they are being asked to disregard certain information and focus
their attention in other areas removes the cloud of mystery that jurors can get
lost in where they typically start discarding instructions they don’t understand.[11]
Improving
Instructions Through Writing
One of the most
important things to mind in all writing is to write for your audience, and this
principle is true when writing jury instructions. So, jury instructions must be
written with the average juror in mind.[12] Inexperienced, but still
very intelligent, writers often display their intelligence in their writing and
make themselves feel smart, but they might leave their audience lost behind
them. But an experienced writer leaves their readers feeling smart themselves
because the writer has kept the audience in mind. Keeping the jurors in mind as
the audience means using understandable, non-legalistic language, simple grammar,
active voice, and clear writing.[13]
It’s easy
to forget that jurors are not trained legal minds amid trial, after spending so
much time on the law and being surrounded by those that are trained legal minds.
But it’s important to remember to avoid legal jargon and phrases that jurors
can easily be confused by. Words ending in -or or -ee such as lessor
or lessee can give even first-year law students (like me at one time)
pause when dealing with different parties in a case.[14] Try to use substitute synonyms
or explanations when possible because this help jurors not become lost in legal
jargon but still effectively deliver your point.[15] This goes double for
archaic language like therewithin, whereupon, or heretofore. This will improve
understanding for jurors and provide clarity at the same time.
Another way
to help jury instructions be clearer is to use active voice and verbs instead
of nouns. Active voice is preached to law students as a hallmark of good legal writing
but using the verb form of a word instead of the -ion or noun version provides
more clarity, such as “James took steps in mitigation of his damages” vs. “James
mitigated his damages” or “His failure to act constituted negligence” vs. “He
is negligent because he failed to act” and for examples.[16] Using active voice and
avoiding nouns when for verbs can also help keep sentences simpler, shorter,
and more understandable.[17]
Finally,
being as clear as possible is an important goal in all writing, especially with
jurors in mind. Take steps to precisely identify parties instead of relying on
a defined term like “Defendant John Smith (“Defendant”)” to avoid confusing
jurors.[18] Examples can also help provide context and add
clarity, whether in defining unavoidable legal terms or to help jurors understand
a difficult legal point.[19]
Overall, jury
instructions can be made more understandable and clearer by utilizing sound
writing principles such as using active voice, keeping the audience in mind,
and logically ordering the structure. These principles can be easy to forget when
writing major briefs and motions, and even more so for jury instructions. But
keeping these principles in mind and utilizing other tools at our disposal,
jury instructions can be made much more understandable to a layperson and
improve the jury system as a whole.
[7]
Walbot, Supra.
[8]
Id.
[9]
See id.
[11]
See id.
[13]
Id.
[14]
Id. at 5.
[15]
See id.
[16]
Id. at 8.
[17]
See id. at 12.
[18]
Id. at 14.
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