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PG II(I) Making Jury Instructions Understandable.
“It cannot be overemphasized that instructions should be clear and simple in order to avoid misleading a jury. [Internal citation and quote marks omitted].” (People v. Carrasco (81) 118 CA3d 936, 944 [173 CR 688].) This section discusses ways to make instructions more understandable. It is based upon “Pattern Criminal Jury Instructions” 1988 Report of Subcommittee on Pattern Jury Instructions, Federal Judicial Center; West Pub. Co.; Appendix A and B, pp. 161-76.
“There has been some interesting psychological research done on the properties which make a jury instruction comprehensible and useful for the jurors. [Footnote omitted.] ¶ Some of these properties will be obvious to every lawyer who has ever felt his eyes glazing over while the judge droned through instructions. For example, telling jurors about legal concepts in legal terminology is not much use: Wherever possible, plain language should be substituted. [Footnote omitted.] Similarly, the use of passive verb forms often leads to confusion, as do lengthy, elaborate compound sentences. [Footnote omitted.] Finally, the endemic preference for lawyers for double negatives (e.g., “not unreasonable”) is a real hazard for jury comprehension… ¶ Psycholinguists have also identified organizational properties of useful instructions which are less obvious. [Footnote omitted.] For example, it will be easier for the jurors to absorb psychological factors if the instruction is organized “hierarchically”: that is, if the more general concepts are discussed first, and then broken down into components.” (See Loftus and Doyle, Eyewitness Testimony (3rd ed. 1997) § 12-2(b), pp. 331-32, Lexis Law Publishing.)
Two empirical studies have tested lay comprehension of state-court pattern jury instructions and found substantial lack of understanding. Both of these research projects showed that it is possible to improve the understanding of jury instructions by removing certain linguistic features that make comprehension difficult. (See Carrow and Carrow, Making Legal Language Understandable: A Psycho Linguistic Study of Jury Instructions, 79 Colum. L. Rev. 1306 (1979); Elwork, Sales and Alphini, Juridic Decisions: In Ignorance of The Law or In Light of It, 1 Law & Human Behavior 163 (1977).) Based upon these, the Federal Judicial Center discussed a number of rules for making jury instructions more understandable. As a preface to the discussions of these rules, the following observation was made:
“Most of the suggestions below necessarily have a negative cast: They are suggestions that certain constructions be avoided. Implicit in all of the suggestions is the basic rule that instructions should be delivered in easily understood, unambiguous English. It must be emphasized that the suggestions are by no means intended as absolute rules. We do not anticipate that most instructions will be wholly free of the features identified here as undesirable. Many instructions containing some of these features may, indeed, be readily understood. But each of the features identified appears to present some obstacle to effective communication. Where the use of one of these problem features seems necessary or desirable, therefore, it may be worth a special effort to avoid including other problem features in the same passage. The obstacles should be regarded as cumulative in their effect: a juror may be able to understand with ease a single instruction, standing alone, that contains one or a few of these features. But it may be much more difficult to understand a passage that contains several of them and still more difficult to understand a series of instructions in which such features regularly appear.” (Federal Judicial Center, Pattern Criminal Jury Instruction pp. 161-62.)
The following suggested rules regarding jury instruction language were discussed in the Federal Judicial Center, Pattern Criminal Jury Instructions, pp. 162-71:
Suggestion 1: Avoid using words that are uncommon in everyday speech and writing.
Suggestion 2: Avoid using words to convey their less common meanings.
Suggestion 3: Avoid using legal terms.
Suggestion 4: Avoid sentences with multiple subordinate clauses, and particularly avoid placing multiple subordinate clauses before or within the main clause.
Suggestion 5: Avoid omission of relative pronouns and auxiliary verbs.
Suggestion 6: Avoid double negations.
Suggestion 7: Use a concrete style rather than an abstract one.
Suggestion 8: Avoid instructing the jury about things they don’t need to know.
[A more in-depth discussion of these suggestions is available to FORECITE subscribers. Ask for Article # A-30.]
[See also FORECITE BIBLIO, “Language/Drafting of Instructions” (BIBLIO L).]
