Jury Instructions: How Jury Instructions can be Improved for Better Understanding and Clarity

             

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               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.

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[1] Ralston, J. Hunter, Jury Instructions: Should Instructions be Improved and Why Good Instructions Matter, February 23, 2022.

[2] Perkel, Steven E. and Perkel, Benjamin, Jury Instructions: Work in Progress, Vol. 27 The Jury Expert: The Art and Science of Litigation Advocacy Issue 2 (2015) at 3.

[3] Kathy D. Patrick and James A. Reeder, Jr., An Effort to Enhance Jury Trials in Texas State and Federal Court, Jury Innovations Project Pilot Manual, (2011) at 15.

[4] Abrams, Jeffrey, Campbell, Christopher G., & Cooper, Dan, DLA Piper, Sharpen the Nails: 8 Ideas for Empowering Jurors in Complex Trials, Product Liability Alert, September 24, 2018

[5] Walbolt, Sylvia H., Jurors Are Only Human: Proper Instructions Can Aid Their Good-Faith Deliberations, Appellate & Trial Support, January 25, 2020.

[6] Perkel, et. al., Supra. at 3.

[7] Walbot, Supra.

[8] Id.

[9] See id.

[10] See Perkel, et. al., Supra. at 4.

[11] See id.

[12] Peter M. Tiersma, Communicating with Juries: How to Draft More Understandable Jury Instructions, National Center for State Courts, Williamsburg, VA, 2006 [originally published in 10 Scribes J. Legal Writing 1 (2005–2006)] at 2.

[13] Id.

[14] Id. at 5.

[15] See id.

[16] Id. at 8.

[17] See id. at 12.

[18] Id. at 14.

[19] See Perkel, et. al., Supra. at 4; See Tiersma, Supra. at 15.

 

Discrimination in the Venire?

            It is commonly known that an individual may be automatically disqualified from serving on a jury panel if he or she can swear before the court that he or she does not speak the English language. This disqualification is usually attributed to the fact that it would be an administrative nightmare to attempt to allow that individual to be on the petit jury, should they not be stricken from the panel during jury selection. Yet, should we continue to automatically assume that this treatment of non-English speaking venire members is acceptable, or are defendants actually being wrongfully deprived of a representative venire selection? Is there a case for the claim that the removal of non-English speakers is discriminatory against that individual and the defendant?

            The Sixth Amendment of the Constitution provides criminal defendants the right to a fair trial by a panel of impartial jurors. However, there is no legal precedent that mandates that the petit jury panel must be representative of the community in which the trial is taking place. Rather, the law only stipulates that the petit jury must be chosen from a representative cross section of the community, and it does not entitle a defendant to any particular racial composition in their petit jury. See Taylor v. Louisiana, 419 U.S. 522, 528 (1975). See also Justia Online’s article on impartial juries here: http://law.justia.com/constitution/us/amendment-06/07-impartial-jury.html. However, a defendant may object to the exclusion of potential jurors from the jury if it is believed that the exclusion was based on race, particularly if the defendant is a member of that same racial group. See Batson v. Kentucky, 476 U.S. 79, 86 (1986).

            So the question becomes, is there a case for a defendant’s claim of racial discrimination, or even a case based on the Equal Protection clause of the Fourth Amendment, due to the Court’s apparent unwillingness to let non-English speakers participate in a venire jury panel?

            Now obviously there is a clear distinction between one’s language and one’s nationality or race, but shouldn’t a defendant have the right to, at the very least, interview that potential juror to see if they can be fair and impartial if they serve on the jury? Aren’t the person’s beliefs all that should matter? Is the Court taking away, perhaps unconstitutionally, the defendant’s ability to form the fairest and most impartial jury possible, particularly if they are of the same race or nationality as the potential juror? Or rather, should the justice system not bother trying to get every single potential juror on the venire because it would simply be too cumbersome to get a translator for the duration of the trial?

            I recognize that this topic simply raises unrealistic expectations in an already clogged justice system, and truly may not matter in the grand scheme of determining a person’s innocent or guilt. Surely, there is more to the outcome of a trial than the mix of individuals sitting in the illustrious chairs of justice. But is there not some merit to an argument for equal application of the law, however impractical in the scenario presented here? Shouldn’t we strive to have a justice system where all citizens, no matter their native language, can weigh in on the justice system so that equality and fairness might prevail? Only time, and a really good fact pattern, will tell.