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 ignorance suggests 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?

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.

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

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. In these cases, a judge could make the same determination with less risk of misapplying the to the facts. 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.

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. If we are trying to determine why we do what we do, however, an examination of this perspective won't be very useful because it's not particularly influential in the legal profession.

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).

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.

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.

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” 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. 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.

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.