Overcoming the “Walking Dictionary Myth” When Instructing the Jury
March 17th, 2021

Jury instruction jurisprudence attempts to draw a “bright line” distinction between terms which have a technical, specialized legal meaning and those which are defined by their common dictionary meaning.

On one side of this “bright line” the trial judge must sua sponte define terms which have a “technical meaning peculiar to the law.” (See People v. Krebs (2019) 8 Cal.5th 265, 331-32 [citing and quoting People v. Howard (1988) 44 Cal.3d 375, 408.)

On the other side of the line courts hold that the judge has no sua sponte duty to give amplifying or clarifying instructions in the absence of a request when a word or phrase used in the instructions given “is commonly understood by those familiar with the English language and is not used in a technical sense peculiar to the law.” (People v. Griffin (2004) 33 Cal.4th 1015, 1022-1023; see also (People v. Estrada (1995) 11 Cal.4th 568, 574 [no duty to define term which is “common parlance”].)

Furthermore, it is actually misconduct for a juror to consult a dictionary to ascertain the common meaning terms he or she does not fully understand. (See Glage v. Hawes Firearms Co.(1990) 226 Cal.App.3d 314, 323 and cases cited therein.

Thus, the case law is founded on a fundamentally false assumption: that jurors are “walking dictionaries” who — off the tops of their heads — will be able to accurately and precisely understand every ordinary-usage or common-parlance instructional term. We know this assumption is false through our own common experience and as demonstrated by actual juries who have resorted to the dictionary for definition of instructional terms. (See e.g., People v. Karis (1988) 46 Cal.3d 612, 642; U.S. v. Gillespie (6th Cir. 1995) 61 F.3d 457, 459; Maslinski v. Brunswick Hosp. Center Inc. (NY 1986) 118 A.2d 834 [500 NYS2d 318]; State v. Richards (VA 1995) 466 S.E.2d 395, 400; cf., People v. Landwer (IL 1996) 664 N.E.2d 677, 682 [error to refuse jury’s request for dictionary].)

This “walking dictionary myth” undermines the reliability of the jury system by failing to assure that the jurors fully understand the instructions.

As a result, some courts have declined to assume that jurors are walking dictionaries.

For example, in People v. Billings (1981) 124 Cal.App.3d 422, 433, the judge granted the jury’s request for a dictionary after each side consented. However, in Karis the Supreme Court explained that “[u]se of a dictionary to obtain further understanding of the court’s instructions poses a risk that the jury will misunderstand the meaning of terms which have a technical or unique usage in the law.” (46 Cal.3d at 642.) And, the Court further stated that “[t]o the extent that this conclusion is inconsistent with that reached here, Billings is disapproved.” (Id at 643, fn 22.)

More importantly, the cases do not preclude a judge from instructing, sua sponte or upon request, on the dictionary definition of non-technical terms used in the instructions. (See People v. Krebs supra 8 Cal.5th 265, 331-32 [no sua sponte duty to so instruction]; see also People v. Whitlock (2003) 113 Cal.App.4th 456, 462 [” ‘To ascertain the common meaning of a word, ‘a court typically looks to dictionaries.’ [Citation.]”].) Hence, it typically is not error for the judge to instruct the jury with the dictionary definition of a term used in the instructions. For example, in People v. Lucero (2000) 23 Cal.4th 692, the court responded to a jury request for definition of a term used in the instructions by giving a dictionary definition of the term. The CSC rejected the defendant’s argument that doing so was error. (Id. at pp. 723-725; see also People v. Davison (1995) 32 Cal.App.4th 206, 212 fn. 3 [judge gave dictionary definition in response to jury request for a dictionary]; Bingham v. CTS Corp. (1991) 231 Cal.App.3d 56, 65 [because the term guard is not a specific legal term of art, judge properly provided the jury with a dictionary definition of the term]; People v. Hernandez (1991) 231 Cal.App.3d 1376, 1383-84 [jury was correctly instructed with the common dictionary definition of “obscene”].)

Nor is it misconduct for counsel to provide the jurors with correct dictionary definitions of common terms during closing arguments. For example, in People v. Cunningham (2001) 25 Cal. 4th 926, 1000 there was no misconduct when the prosecutor, during closing argument, presented the jury with three definitions of the term “conscious” from a dictionary. (See also generally CC 200 and CC 761: “You must follow the law as I explained it to you even if you disagree with it. If you believe the attorneys’ comments on the law conflict with my instructions, you must follow my instructions.”].)

In sum, without instructional clarification jurors are put in an untenable situation by the jurisprudential myth that they are “walking dictionaries.” Not only are jurors unrealistically expected to know the correct dictionary definitions of every undefined instructional term, but they are expressly prohibited from consulting the most logical place to find the meaning of a common word or phrase–the dictionary.

 

Accordingly, counsel should have the right to either:

 

  1. Request that the judge include a dictionary definition of certain terms in his or her instructions to the jury, or
  2. Include a dictionary definition of the term at issue in closing argument and request an instruction such as the sample below. (See also F 200.5 Inst 3 Counsel’s Argument That Jury Should Utilize Common Dictionary Meaning Of A Term)

 

Sample Instruction

 

If counsel provides you with a definition of a term used in these instructions, you may rely on that definition unless it conflicts with the instructions or I sustain an objection to counsel’s definition.


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