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. 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 ignorance suggests that it is academic and common knowledge.

These points 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?

Presenting a single theory of 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.

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).

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?

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 polls consistently show more faith in juries than judges, is public faith in the judicial system actually based on not questioning its processes?

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.

Escape Hatch

Some theorists perceive this as an advantage, as it allows the jury to simply ignore legal rules that conflict with common sense or popular sentiment. This opinion, however, is probably not the driving force behind why we allow the jury instruction system to continue.

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?

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. On the other hand, we have altered other aspects of our system, like the FRCP, relatively frequently. Even the role of the jury has changed over time, from a mixture of interpreting and applying the law to a theoretically limited fact-finding role. (Green, 1985).

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

Close Enough

I presented this question to a few trial lawyers, who responded with statements that the jury didn't actually understand the facts,

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.

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. I don't think we can make this assumption in the absence of evidence.

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. Robinson, 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.

3. Is it a Problem?

If we have confidence that the law is fair and in judges' fact finding abilities, we should replace juries with judges. If we prefer to let juries disregard the law in favor of their common sense, we should revise the law. It is impossible to justify allowing juries who don't understand what an aggravating circumstance is to sit on death penalty cases.

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.

The prospect of ending the exclusion of jurors who oppose capital punishment from capital cases raises another interesting question on the purpose of juries. If we allowed those who oppose capital punishment in, wouldn’t certain juries cease to represent society’s consensus on capital punishment? Wouldn’t the sentence depend on the random selection of jurors assigned, rather than any aggravating or mitigating factors assigned in the law? Wouldn’t the inclusion actually make the process less democratic?

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?