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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