Return to Practice Guide Table of Contents
PG II(H) Strategy For Dealing with Jury Instruction Language.
Free v. Peters (7th Cir. 1993) 12 F3d 700, 704-06, provides a basis for challenging confusing jury instructions by the use of a jury study conducted by an appropriate expert. In Free, the trial court relied upon such a study to conclude that the instructions given were overly confusing and invalid. Although the Court of Appeals reversed the lower court, it did not rule out the use of an appropriate jury study for jury instruction evaluation. Rather, the Court of Appeal relied on two perceived defects in the study methodology. (12 F3d at 705.) Presumably, a study which eliminates those defects would be a valid basis upon which to challenge jury instructions as overly confusing. (But see also Gacy v. Welborn (7th Cir. 1993) 994 F2d 305.)
Similarly, in McDougall v. Dixon (4th Cir. 1990) 921 F2d 518, 532, counsel submitted affidavits of seven experts in the field of anthropology, linguistics, philosophy, logic, clinical psychology, rhetoric, communications and English literature, in an effort to convince the court that a reasonable juror would have misinterpreted the trial judge’s death penalty instructions. The strategy failed in the Fourth Circuit, the court finding that “[T]he interpretation of instructions given by seven academics, employed eight years after trial, are irrelevant.” (921 F2d at 532.)
In the trial courts, however, the tactic could prove fruitful. As suggested in the Bureau of National Affairs Criminal Practice Manual, “Ideally, efforts by lawyers and the experts they consult to improve the wording of instructions should be concentrated at the trial level. For example, … counsel could submit the pattern instructions or the state’s proposed instructions to a linguistic expert for study, and then use the findings to develop and propose an alternative.” (BNA Criminal Law Reporter, Special Report, 1991, 48 CR.L. 1418.) The discussion which follows regarding how to determine the understandability of jury instructions could be a helpful starting point.
[See also FORECITE BIBLIO, “Language/Drafting of Instructions” (BIBLIO L)]