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.

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