I don't understand what this essay is. What's its central idea? With whom are you agreeing or disagreeing? You didn't rewrite the last draft in light of my comments, you slid a different, and apparently un-outlined new text in between the previous marks, and gave it this not very helpful beginning.

I should think here "classic" means "recent." Classic examples would be hundreds of years less contemporary. The citation is a poor one, particularly because you didn't read Story, you just copied the citation out of one of the other secondary sources (themselves poorly selected) that you used.

What's being justified?

Why these sources? They're not particularly important or analytically useful.

What's the point of this argument? How is it attached to a larger thesis or central idea animating the essay?

What has this collection of rhetorical questions to do with anything that came before? How is this non-conclusion related to the inexplicit central idea of the draft?

I think the gravest problem here is that the structure of the draft has dissolved, and we're left with some shards whose relation to one another, or to a central theme, has disappeared. What we need is a clear statement of a central idea in the introduction, followed by a sequential development of the basis of this idea in relation to objections or concerns that a reader might be expected to raise, followed by some development of implications about which the reader can think further for herself. The first draft had adequate structure, but was poorly argued. This draft has lost coherence, which can be restored by returning to the outline.

Democracy

Exclusion and the Death Penalty

We're not looking for a theory of jurors' motives. We're asking why we use juries.

here would be like attempting to set out Congress's single motive in passing an omnibus spending bill. I will instead set out a few possible motives and briefly evaluate their plausibility.

We don't require jury trials in all civil cases, and we don't think English courts have lost legitimacy because civil juries sit no more.

Nor do juries that do sit in our civil cases need to listen to complex legal instructions, because they can decide only the factual issues through the routine use of special verdicts.

Criminal jury instructions are complex, because criminal juries must return general verdicts. So we have to tell them what they law is that they're to apply in reaching a general verdict of guilty. But it doesn't matter whether the reach the legal conclusions necessary, because the instructions will be reviewed for accuracy in the appellate court. If the appellate court is also required to perform sufficiency of the evidence review, then a guilty verdict means only that a jury thought the evidence was sufficient based on what it thought the law was, both of which conclusions are going to be reviewed by professionals in a mandatory appeal.

Under those circumstances, and given the other benefits of jury trial (which is our only actual democratic institution for the conduct of the public force, in which citizens are called upon directly to decide matters of great social importance), why wouldn't we use it?

But the issue isn't whether courts have good reputations. The issue is why we use juries.

Richard Posner articulated a more nuanced version of the legitimacy theory in The Problems of Jurisprudence,"In part, perhaps we preserve it in order to make the judicial role seem more objective than it is, by consigning difficult questions to laypersons and thereby reducing the number of cases in which judges have to decide indeterminate questions." (Posner 1993) In this view, the jury serves as a sort of opaque box. We throw the difficult questions into the box, and get answers out, and thus hide the system's arbitrary magic. Though this argument applies well to fact-finding (whether Jerry killed Sam) it falters when we ask the jury not to consider evidence, or when we ask it to decide whether a fact is true by a preponderance of the evidence. In these cases, a judge could make the same determination with less risk of misapplying the to the facts.

Why? Is there something more objective about the determination of "preponderance of evidence" than "reasonable doubt"? And why is it different to tell a jury not to weigh certain evidence than for a judge to say "he'll take it for what it's worth," meaning nothing.

The number of newspaper articles pointing out obvious problems with juries' application of facts to law makes me question whether this process makes the system seem more objective.

But that's not what Judge Posner said. He said it made judges look more objective, precisely because they do not make the decisions that juries make. If they did the work juries do, their decisions, Judge Posner is saying, would be subject to the accumulation of social hostility for perceived bias or error. Instead, each individual jury composed of more or less obscure citizens carries off with it into the sunset its own small fraction of that social resistance, and the judge remains above the fray. It's an idea worth discussing, and you might want to discuss it.

Now we are looking for "the driving force." Why not an open-ended inquiry into why we do something that you have convinced us has this difficulty connected with it?

I don't understand in what system of explanation "pure tradition" is an explanation. What is an impure tradition?

I thought we were asking whether juries understand instructions. Whether they are adequate fact-finders is another issue, isn't it?

but that it's conclusions were ultimately "close enough." There is some evidence to support these assertions, as judges and juries agree on liability in 79% of cases. (Subrin, Minow, Brodin, and Main 2008) This leaves the questions of why judges and juries disagree on liability in the remaining cases, whether they have reached the same conclusion for the wrong reasons, and why we allow juries to apply law if we measure their accuracy using judges' opinions.

An example of why taking me too literally rather than thinking things through yourself may not have been completely productive. You don't need to count readbacks: the point is that jurors think they understand what they need to know, or in every case they would repeatedly request the guidance they do request often enough for us to know they know how to ask. So the question is: why do jurors believe they know enough to come up with general verdicts in criminal cases? Might we ask whether, without regard to their specific knowledge of how it all works, they believe that lawyers will argue over the law of their verdict, but they've made the decision about facts? If they do believe that, might it be because they listened when, on several different occasions during the trial, that's what we told them?

It is very difficult to speculate about jurors’ motivations. Joseph, from Lawyerland,

He's Robinson, from Lawyerland, which was written by Joseph. Did you check?

seems to suggest that the instructions impress jurors, perhaps because of their legal magic outside (“You see it in jurors’ faces—even the most sophisticated and street-smart. They’re not only intrigued, they’re impressed! Reasonable doubt—they go fucking bananas!”). It is difficult to imagine such jurors “intrigued” by a one hundred page long RICO instruction.

But maybe that's not what Robinson meant. If you are a little less literal about his point it might be more useful to you.

They may be simply so confused that they lose faith in their ability to understand the instructions and abandon the endeavor entirely. They may feel pressured by the other jurors and the judge. They may simply want to go home without listening to another hour of legal jargon.

Or they may be trying to do what they think is an important job the best way they know how. In a democratic society, perhaps we should be a little less quick to dismiss their behavior as incompetent. Honest survey evidence would show that a large proportion of Congressmen have no fucking idea what's in the legislation they are voting on most of the time. Honest survey evidence would show that most law professors couldn't pick their students out of a lineup. Are you sure we should decide jurors don't do a good enough job because they're not smart like us? Jurors aren't supposed to be lawyers. They're citizens. From "all walks of life." They come together to perform a duty that we impose on them. I think they do their jobs better than lots of people who understand the instructions.

Maybe, if we didn't exclude from juries in capital cases anyone who opposes capital punishment, we'd wind up in capital cases with more educated and more professionally-oriented jurors. I'm not sure you've pointed out a problem of too much democracy; I think it's one of too little.

Perhaps that's a good statement of my view about where to take this overall. You may not agree with the idea that in a democracy, ordinary people from all walks of life should have a practical role in the administration of justice. But don't you owe at least some engagement with the idea?

Close Enough

I presented this question to a few trial lawyers, who responded with statements that the jury didn't actually understand the facts, but that it's conclusions were ultimately "close enough." There is some evidence to support these assertions, as judges and juries agree on liability in 79% of cases. (Subrin, Minow, Brodin, and Main 2008) This leaves the question of why judges and juries disagree on liability in the remaining cases, and whether they have reached the same conclusion for the wrong reasons. The attorneys seemed to trust mechanisms like JNOV to weed out these cases as it did in trials like Tavoulareas v. Washington Post.

Presenting a single theory of the motives here would be like attempting to set out Congress's single motive in passing an omnibus spending bill. I will instead set out a few possible motives and briefly evaluate their plausibility.

Richard Posner articulated a more nuanced version of the legitimacy theory in The Problems of Jurisprudence,"In part, perhaps we preserve it in order to make the judicial role seem more objective than it is, by consigning difficult questions to laypersons and thereby reducing the number of cases in which judges have to decide indeterminate questions." (Posner 1993) In this view, the jury serves as a sort of opaque box. We throw the difficult questions into the box, and get answers out, and thus hide the system's arbitrary magic. Though this argument applies well to fact-finding (whether Jerry killed Sam) it doesn't work so well when we ask the jury not to consider evidence, or when we ask it to decide whether a fact is true by a preponderance of the evidence. The number of newspaper articles pointing out obvious problems with juries' application of facts to law makes me question whether this process makes the system seem more objective.

Legal Magic and Jury Instructions

The Situation

It is very unlikely that jurors understand jury instructions. The use of juries requires citizens selected at random from voter registration and driver’s license renewal lists to understand complicated legal concepts filling dozens of pages, frequently presented only in oral form. Studies have repeatedly confirmed jurors’ failure to understand critical legal theories. A recent study found that only two out of three jurors understood that intent was required to convict a defendant of first-degree murder. (Levin and Emerson 2006). When asked to define “aggravating circumstance,” a large number answered that it was “a circumstance that makes the defendant angry.” (National Science Foundation Capital Jury Project 1997). The sheer number of studies and news articles examining this misunderstanding indicates that it is academic and common knowledge.

These facts present three questions.

1. Given that it is not plausible that jurors actually fully understand jury instructions, and no one thinks it is plausible, why do we do what we do?

Legitimacy

The most common argument on this question states that faith in juries and their ability to understand jury instructions enhances the legitimacy of the courts. One scholar recently described this belief as “the notion that questioning the validity of [the presumption that juries applied their instructions] poses a threat to the survival of our system of justice.” (Ritter 2004).

This argument makes a large number of unstated assumptions, many of which are unproven. What is legitimacy? Do the courts need popular legitimacy to enforce their judgments? Does the public share many scholars’ fear of an unelected expert sitting in judgment in most cases? Public confidence in the Supreme Court, which makes high-profile decisions, has remained largely high and steady in the long run despite controversial decisions like Bush v. Gore and Roe v. Wade. (Gibson 2003) Though people in the United States seem to have more faith in juries than judges, is there a significant difference in respect for the outcomes of each process?

Escape Hatch

Jerome Frank set out the “realistic theory” of juries, stating that they are unable to apply the instructions of the court and make little attempt to do so. Some perceive this as an advantage, as it allows the jury to simply ignore legal rules that conflict with common sense or popular sentiment.

Pure Tradition

It is possible that we continue to pretend that juries understand and apply their instructions because we have done so for hundreds of years. The jury’s role has changed over time, however, from a mixture of interpreting and applying the law to a theoretically limited fact-finding role. (Green, 1985).

2. Given that jurors rarely request readbacks, why do they do what they do?

The first question is whether jurors rarely request readbacks when they are aware that they are allowed to do so. I wasn’t able to find good evidence either way, though there are a few anecdotes available in the Chicago Tribune and the New York Times.

It is very difficult to speculate about jurors’ motivations. Joseph, from Lawyerland, seems to suggest that the instructions impress jurors, perhaps because of their legal magic outside (“You see it in jurors’ faces—even the most sophisticated and street-smart. They’re not only intrigued, they’re impressed! Reasonable doubt—they go fucking bananas!”). It is difficult to imagine such jurors “intrigued” or by a one hundred page long RICO instruction. They may be simply so confused that they lose faith in their ability to understand the instructions and abandon the endeavor entirely.

3. Is it a Problem?

The conviction of criminal defendants by juries completely ignorant of the law governing the relevant offense appears a problem to those who believe that the law should be applied in a just manner.

Original

The draft is generally coherent, though the concluding paragraph has little to do with anything that precedes it.

Coherence in this case is not economy. The whole of what's here can certainly be put in a paragraph. It requires only to say the obvious about the complex nature of jury charges, the conditions under which they are given, to whom they are given, and the rest of the context. You have a couple of studies only to link to, and you're done.

The remaining space could then be dedicated to the question you don't ask: Given that it is not plausible that jurors actually fully understand jury instructions, and no one thinks it is plausible, we do we do what we do? Given that jurors rarely request readbacks, why do they do what they do? To say, as you wind up doing, that this is somehow a problem with law school makes no sense. Perhaps it is not a problem at all. You haven't really explained in any social sense what's going on, either historically or behaviorally, so it's not a surprise if the reader remains at the end as puzzled as she was at the outset.

Legal Magic and Jury Instructions

-- By DavidHirsch - 15 Feb 2012

Introduction

I remain curious about the practical implications of Jerome Frank’s statements on jury instructions. His most notable statement is as follows:

“Anyone who has ever watched a jury trial knows that the rules often become a mere subsidiary detail, a part of a meaningless but dignified liturgy recited by the judge in the physical presence of the jury and to which the jury pays scant heed.” (54) Joseph echoes him in Lawyerland, “You see it in jurors’ faces—even the most sophisticated and street-smart. They’re not only intrigued, they’re impressed! Reasonable doubt—they go fucking bananas!” (15) This ritual represents an important example of the use of legal magic as a way of coping with difficult practical problems.

The idea that they jurors may not understand jury instructions is not novel. The fact that we haven’t discussed the problem in law school at any length is more surprising. Frank’s argues that “legal science...tends to distract attention from first-hand study of removable evils in the all-too-human conduct of court-house government.” (218) Perhaps we can apply some of the “flawed” tools of the social sciences to combat this particular evil.

Overview and Examples

Jury instructions require citizens selected at random from voter registration and driver’s license renewal lists to understand complicated legal concepts. Though one recent study suggested that fears that the exclusion of educated jurors are overblown, it is not clear that even an exceptionally well-educated sample of Americans understand legal concepts. (Levin and Emerson 2006) To borrow a hypothetical example from our Legal Practice Workshop, consider the complaint one side will lodge against the trial judge’s choice of jury instructions:

“The substitution of ‘defendant knew or should have known’ for ‘the defendant was aware of a high probability’ is significant because it eliminates the requirement that the defendant demonstrate actual knowledge.”

This argument, which is based on a real case, does not seem particularly clear in plain language. This is a notably simple example. Even modern instructions for crimes such as money laundering and identity theft can be quite complex, with dozens of specific statutory definitions and confusing terminology. A recent study found that only two out of three jurors understood that intent was required to convict a defendant of first-degree murder. (Levin and Emerson 2006) The use of certain jury instructions even decreased jurors’ understanding of relevant legal concepts. (Levin and Emerson 2006) One study found that some of the most confusing jury instructions are present in capitals cases, and that many jurors cannot define basic legal terms. When asked to define “aggravating circumstance,” a large number answered that it was “a circumstance that makes the defendant angry.” (National Science Foundation Capital Jury Project 1997)

On the whole, our current attitude accords with Roger Traynor’s famous suggestion that “(i)n the absence of definitive studies to the contrary, we must assume that juries for the most part understand and faithfully follow instructions.” (The Riddle of Harmless Error 1970). Yet numerous quantitative studies have demolished the validity of this assumption.

Solutions

The provision of complex instructions to jurors in oral form, particularly when they are unaware that they can ask questions, is an obvious target for change. Courts could also begin to track the questions that arise in certain situations by each state. The few opinions discussed in our classes feature numerous examples of appellate judges reversing lower courts on the technical and legal accuracy of jury instructions, but almost none of a reversal for incomprehensibility. This tendency may discourage judges from attempting to translate complex legal concepts for jurors. (Tiersma 1993) The extensive official commentary in many circuits’ model jury instructions contain dozens of case citations to support their legal basis, but extremely few citations to studies examining how comprehensible they are.

Perhaps the most important possible change would be to create a law school curriculum centered on concrete and continuous reform of the legal system. Reading 18th century case law may or may not teach us to “think like lawyers,” but it strengthens our reliance on legal magic and our ignorance of factors that may doom our clients despite our knowledge of the law.

• #Set ALLOWTOPICVIEW = TWikiAdminGroup, DavidHirsch
• #Set DENYTOPICVIEW = TWikiGuest