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.

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