7/27/2014 IT'S UNANIMOUS: JURORS DON'T UNDERSTAND INSTRUCTIONS! A PROPOSAL FOR ELIMINATING JUROR MISUNDERSTANDING - Wes…
IT'S UNANIMOUS: JURORS DON'T UNDERSTAND INSTRUCTIONS! A PROPOSAL FOR ELIMINATING JUROR MISUN…
Anna E. Saxman , Kerry B. DeWolfe
Vermont Bar Journal and Law Digest (Approx. 9 pages)
24-DEC Vt. B.J. & L. Dig. 55
RELATED TOPICS
Criminal Law
Vermont Bar Journal and Law Digest
December, 1998
Trial
Court of Appeals Review of an Allegedly
Improper Jury Instruction
Feature
Focus Section: Children and the Law
IT'S UNANIMOUS: JURORS DON'T UNDERSTAND
INSTRUCTIONS! A PROPOSAL FOR ELIMINATING JUROR
MISUNDERSTANDING a1
Anna E. Saxman
aa1
Kerry B. DeWolfe
aaa1
Copyright (c) 1998 by the Vermont Bar Association; Anna E. Saxman, Kerry B. DeWolfe
“It is shocking to learn just how little comprehension a jury has of instructions given in a
criminal case.” 1
The commonly-used jury instructions found in every Vermont judge's “Charge Book”
may do more to confuse jurors than to instruct them. Despite a substantial body of
empirical research demonstrating that jurors have great difficulty understanding these
instructions, they are routinely requested by attorneys and given by judges. 2 Our
judicial system rests on the belief that instructions adequately educate jurors so that
verdicts are just. The empirical research contradicts this belief and demonstrates that the
instructions we use impede juror understanding. The data, some of which has been
in existence for twenty years, also conclusively proves that certain changes in drafting
instructions improves juror comprehension. We suggest that Vermont's jury
instructions be revised in accordance with the established social science research.
The Research
During the 1970s, studies conducted in Arizona, California, Florida, Michigan, Nebraska
and Nevada revealed that jurors had serious comprehension problems. 3 In the study of
Florida's criminal jury instructions, jurors who received no instructions performed as
poorly in comprehension as jurors who received instructions. 4 In the Nebraska study,
jurors who were given pattern civil instructions had a misunderstanding rate of nearly
40%. 5
In 1976, Robert and Veda Charrow, a law professor and a research scientist,
respectively, undertook an empirical, objective linguistic study of jury instructions that
identified the features that actually caused juror confusion. 6 Their study revealed that
jurors receiving California pattern civil jury instructions had significant problems
understanding the instructions. More importantly, they identified specific linguistic
constructions that caused juror confusion. They discovered that vocabulary, grammatical
structure, and organization were responsible for juror confusion, not the complexity of the
7
legal concepts. Revised instructions without the problematic linguistic constructions
8
resulted in a dramatic rise in juror comprehension. For example, comprehension of an
instruction on agency improved 93%. Other studies followed with similar results.
The Michigan Juror Comprehension Project found that the instructions on “drawing
inferences from the evidence” actually decreased juror comprehension from 48% to
9
31.8%. One reasonable doubt instruction was understood by only 31.8% of the
jurors compared to 48% comprehension of the concept by jurors given no
10
instructions.
Other researchers have also examined instructions concerning reasonable doubt as
well as intent, and the use of prior convictions. One group received general pattern
instructions on these concepts and one group was not instructed. The group with the
general instructions erred 34.7% of the time; the group with no instructions erred
11
35.6% of the time.
The studies are virtually unanimous in their conclusions. “None of the studies that have
been done show that jurors understand their instructions at an acceptable level. On
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the contrary, all of the empirical studies show juror comprehension of pattern
12
instructions to be so low as to be dysfunctional.”
Why Jurors Do Not Understand
The study of juror comprehension relies on the science of psycholinguistics which uses
techniques of experimental psychology to investigate language processing and
comprehension. 13 Certain constructions are difficult to process. When a juror hears
these constructions, the juror must work harder to decode the meaning, and often fails.
Rewriting Jury Instructions to Improve Comprehension
The psycholinguistic studies demonstrate that rewriting and reorganizing the
instructions 14 increases juror comprehension. The studies were able to identify
specific linguistic impediments. 15
Many articles provide guidance on revising jury instructions according to
16
psycholinguistic principles.
The studies have suggested specific linguistic revisions as
well as more general reforms. Generally, the guidelines divide the reforms into three
categories: vocabulary, grammar, and organization.
Vocabulary
The obvious beginning is to avoid legalese or jargon. Use commonly understood words.
For example, when jurors heard that the agent's negligence “must be imputed” to the
plaintiff, their understanding of this concept was low. 17 When the phrase changed to
“the agent's negligence ‘would transfer’ to the plaintiff,” comprehension rose 47%. 18
Similarly, when the words “foreseen or anticipated,” changed to “would have realized in
19
advance,” the jurors' comprehension rose from 18% to 46%.
Using nominalizations adds to juror confusion. Nominalizations are words that create a
noun out of a verb, often by adding “ing” or other endings. The “doing of” or the “waiver
of” are examples of nominalizations which are difficult to process. These should be
avoided. It is easier to understand the verb form than the nominalization. The phrase
“failure of recollection” contains two nominalizations. Replacing it with “people may forget”
20
improves comprehension.
Lawyers like to use a number of words, but the use of synonyms can lead to
misinterpretation. 21 It is better to repeat the same word than to try to insert a number of
synonyms. Homonyms are words that sound alike but have more than one meaning. For
example, red/read. The phrase “material allegation” was misunderstood by jurors who
thought it meant physical evidence. Similarly, the word “information” used in a criminal trial
22
was frequently misunderstood to mean evidence against the accused.
Lawyers should
avoid these constructions if possible.
Some antonyms are easier to understand than others. Antonyms formed by the addition
of negative modifiers, for example, “polite” and “impolite” are harder for jurors to
understand or remember. A better use is “polite/rude.” Another example of the negative
modifier is the word “disregard.” A better choice is “ignore.”
Lawyers should also eliminate the long word list. Instead of using a long list of the
alternatives set out in statutory language, use the actual term at issue. For example,
instead of repeating “bullion, money, notes, bills, obligations, or securities,” use the one
that is actually charged. Jurors will not likely remember any list that exceeds two words.
“Verb choice can also be a source of jury confusion.” 23 One example that Elwork gives
is “[i]f you believe the defendant to be guilty.” This phrase causes confusion. First, the
listener hears “if you believe the defendant” and takes the meaning to be belief in the
defendant's account of the facts. Then the listener has to change midstream to
understand a different sense of “belief.”
Double or triple negatives are difficult to process. The sentence, “innocent misrecollection
is not uncommon,” contains three negatives that the jury must decode. 24 Use, instead,
“people may forget.”
*56 Instead of using passive or impersonal verbs, the jury instructions should use
“modal” verbs. “Must,” “shall,” and “may” are examples because they tell the jurors what
to do. Instead of saying, “it is necessary for you to do ...” or “it is your duty as jurors to
do ...” use the direct form, “you must.”
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Grammar
Misplaced phrases often cause misunderstanding of the instruction. For example, “[i]f in
these instructions, any rule is repeated” is hard to understand. If you have to say it,
use “[i]f these instructions are repeated.”
Frequent, incomplete, subordinate clauses cause confusion. Jury instructions often
omit relative pronouns. Avoid “any statement of counsel made during trial.” Use “any
statement of counsel, which was made during trial.” When both the pronoun and the verb
are missing from a clause, the juror's mind has to work harder to supply the missing
words. Use the relative pronoun and the verb.
Do not use the phrase “as to.” Charrow and Charrow found that eliminating this one
phrase enhanced comprehension. 25
Passive phrasing may also interfere with comprehension, particularly if the passive is in a
subordinate clause. The Charrow and Charrow study revealed that jurors frequently
misunderstood the phrase “if the conduct reasonably could be avoided.” When the
phrase became “could the reasonably careful person have avoided behaving,” the
comprehension rose. Another classic example of a confusing subordinate clause is:
“If counsel for the parties have stipulated to any fact or any fact has been admitted by
counsel, you will regard that fact as being conclusively proved as to the party or parties
making the stipulation or admission.” 26
Organization
The literature suggests the following general organizational reforms:
1. Give general instructions at the beginning of the trial. These include instructions on
procedure, credibility of witnesses, exclusion of evidence, juror conduct, presumption of
innocence, burden of proof, reasonable doubt and the elements of the offense. Juror
comprehension rose with more familiarity with the instructions. 27
2. Break down concepts into their components. Number each idea or concept in an
instruction.
3. Present, in order, a decision-making process that identifies the tasks the jury must
perform.
4. Give written copies of the instructions to the jurors. 28
Marked improvement in comprehension is achieved by revising instructions according to
psycholinguistic principles. In one of the Elwork studies, a substantial revision of
instructions raised comprehension from 51% for those receiving pattern instructions,
to 80% for those receiving the revisions. 29
Conclusion
Despite the substantial body of research identifying the problem, “jurors don't
understand jury instructions” and suggesting a cure (rewrite instructions in
accordance with established principles of psycholinguistics), the movement to reform jury
instructions has largely passed Vermont by. It may be that we are familiar with the old
wordy instructions and we fear that revised instructions will eliminate some precise
legal concept. The research contradicts these beliefs. We can revise instructions. Here
is an example of a relatively good instruction from a district court case:
“The evidence in the case consists of the sworn testimony of the witnesses, regardless of
who may call them. Statements and arguments of counsel are not evidence in the case.
Anything you have seen or heard outside the courtroom is not evidence and must be
completely disregarded.... But in your consideration of that evidence you are not *57
limited to the mere statements of the witnesses. In other words, you are not limited solely
to what you see and hear the witnesses testifying to. You are permitted to draw from the
facts which you have found such reasonable inferences as you feel are justified in the
light of common experience.”
Revised: “Some of what you heard during trial is not evidence. Opening statements are
not evidence. Closing statements are not evidence.
The evidence in this case consists of the witnesses' testimony here in court, and the
exhibits you have seen. You should consider this evidence in light of your own
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observations and experiences in everyday life. You should not consider any other
sources of information.”
Despite the numerous law review articles and books published by respected scholars and
professors, little significant change has occured in Vermont. According to one
commentator, the strongest factor influencing the lack of change in jury instructions is
legal inertia. 30 He notes that the social science research has had no apparent impact
on appellate courts. To the extent that courts have changed the law of jury instructions
at all, they have moved in the direction contraindicated by the empirical data. Appellate
courts are now requiring less effective instruction procedures. 31
Jurors can understand complex legal concepts and it is our job to see that they do. We
suggest that Vermont's jury instructions be revised in accordance with the established
social science research.
Footnotes
a1
This article orginally appeared in the September 1998 issue of the Vermont
Bar Journal & Law Digest (Vol. 24, No. 3, Issue #135). Because of the
unanimously positive response to both the article and the subsequent
seminar on the topic we have reprinted the article with some revisions for
your benefit.
aa1
Anna Saxman is an Appellate Defender and the Director of Training for the
Office of the Defender General. She is also an adjunct professor at Vermont
Law School.
aaa1
Kerry DeWolfe is a partner in the firm of Rubin, Kidney, Myer and DeWolfe.
She has been a practicing attorney for seventeen years, concentrating in
civil and criminal litigation.
Attorneys Saxman and DeWolfe work together as consultants/trainers on
jury issues and expert testimony. They have revised many of Vermont's
criminal law instructions for the Office of the Defender General.
1
Edward J. Imwinkelreid & Lloyd R. Schwed, Guidelines for Drafting
Understandable Jury Instructions: An Introduction to the Use of
Psycholinguistics, 23 Crim. L. Bull. 135, 137 (1987).
2
Although the Reporter's Notes to V.R.C.P. 51 refer to the literature on juror
comprehension, (R. Nieland, Pattern Jury Instructions: A Critical Look at a
Modern Movement to Improve the Jury System, (1979)), the Rule merely
gives the judge discretion to provide the jury with written instructions.
3
Sigworth & Henze, Jurors' Comprehension of Jury Instructions in Southern
Arizona (1973) (unpublished report); Charrow & Charrow, Making Legal
Language Understandable: A Psycholinguistic Study of Jury Instructions,
79 Colum. L. Rev. 1306 (1979); Strawn, & Buchanan, Jury Confusion: A
Threat to Justice, 59 Judicature 478 (1976); Elwork, Sales & Alfini, Juridic
Decisions: In Ignorance of the Law or in Light of It?, 1 Law & Human Behav.
163 (1977); Elwork, Sales, & Alfini, Making Jury Instructions
Understandable (Michie 1982).
4
Strawn & Buchanan, Jury Confusion: A Threat to Justice, 59 Judicature
478, (1976).
5
Elwork, Sales & Alfini, supra note 3, Juridic Decisions at 169.
6
Charrow & Charrow, supra note 3.
7
Id. at 1359.
8
Id.
9
G. Kramer & D. Koenig, Do Jurors Understand Criminal Jury Instructions?
Analyzing the Results of the Michigan Juror Comprehension Project, 23 J.
of Law Reform, 401, 414 (1990).
10
Id.
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11
Severance, Greene, and Loftus, Toward Criminal Jury Instructions that
Jurors Can Understand, 75 J. Crim. L & Criminology, 198, 206 (1984).
12
W. Steele, Jr. & E. Thornburg, Jury Instructions: A Persistent Failure to
Communicate, 67 N.C. L. Rev. 77, 99 (1988).
13
Just and Carpenter, Comprehension of Negation With Qualification, 10 J.
Verbal Learning & Verbal Behavior, 244 (1971).
14
L. Severance & E. Loftus, Improving the Ability of Jurors to Comprehend
and Apply Criminal Jury Instructions, 17 Law & Soc. Rev. 1, 194-95
(1982).
15
Id.; Charrow & Charrow supra note 3 at 1321.
16
See, e.g., Wilcox, The Craft of Drafting Plain-Language Jury Instructions:
A Study of a Sample Pattern Instruction on Obscenity, 59 Temple L. Q. 115
(1986); E. Imwinkelreid & L. Schwed, supra note 1 at 137-50; H. Perlman,
Pattern Jury Instructions: The Application of Social Science Research, 65
Nebraska L. Rev. 520 (1986).
17
Charrow & Charrow, supra note 3 at 1336.
18
Id.
19
Id.
20
Id. at 1345.
21
Elwork, Sales & Alfini, supra note 3 at 179.
22
Id.
23
Imwinkelreid & Schwed, supra note 1 at 141.
24
Charrow & Charrow, supra note 3 at 1325.
25
Id. at 1336.
26
Id. at 1340.
27
Kramer & Koenig, supra note 9 at 426.
28
See Perlman, supra note 16 at 532-39; Charrow & Charrow, supra note 3 at
1321-27; Severance & Loftus, supra note 14 at 208.
29
Elwork, Sales and Alfini, supra note 3 at 45-46.
30
J. Alexander Tanford, Law Reform by Courts, Legislatures and Commissions
Following Empirical Research on Jury Instructions, 25 Law & Soc. Rev. 1,
165 (1991).
31
Id. at 167.
24-DEC VTBJLD 55
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