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Wednesday, February 2, 2005

Column: Twelve Confused Men

Let’s say you’re on trial for murder.

I know, I know, you didn’t do it. But you’re on trial all the same. Chances are, you’ll be anxious to make sure the jury really gets the whole “reasonable doubt” thing.

By the end of the trial, you’re a nervous wreck. You’ve pinned all your hopes on the judge explaining reasonable doubt so that the jury will understand the heavy burden on the prosecution. Reading from a lengthy text, the judge solemnly informs the jury that reasonable doubt does not include “doubt produced by undue sensibility in the mind” but does include such doubt that would cloud their “moral certitude.”

And then you start packing your toothbrush – while muttering about how the judge himself should be locked up for giving such confusing jury instructions.

In fact, the judge probably had little choice. In most states, judges must rely on standard or pattern jury instructions, written by long-forgotten committees of men in starched collars and frock coats. They are scrupulous in describing the law and, unfortunately, as incomprehensible as the instructions for assembling a piece of Ikea furniture.

Help Is On The Way

Now, there is a glimmer of hope from California. In a few months, the state’s Judicial Council will unveil new criminal jury instructions that are written (horror of horrors) for the average juror to understand. This development comes two years after California revamped its civil jury instructions and, if history is any guide, the criminal instructions will be a vast improvement over the status quo.

In revising both civil and criminal instructions, the Judicial Council has followed the principles of “Plain English” – using active voice, avoiding double negatives, and writing shorter sentences.

And cutting the legalese. The new California instructions seek to remedy one of the most vexing problems of standard jury instructions: forcing judges to hurl technical terms at laymen in the hope that one or two concepts will stick.

Studies and anecdotal evidence confirm that jurors get confused by legalese, interpreting “proximate cause” as “approximate cause” and “preponderance of the evidence” as “pondering the evidence.” There was even a jury that thought that murder committed with “malice aforethought” meant murder committed with a mallet. Oh well, six of one, twenty-to-life of the other, I always say.

A Foreign Language

Jury instructions are so impenetrable that the great Second Circuit judge Jerome Frank, speaking 70 years ago, described them as “a foreign language” – a comment not entirely fair to foreigners.

The price of confusion is especially high in capital cases. Imagine twelve perfectly nice people who would rather be home watching Dr. Phil suddenly forced to decide a matter of life and death. What helpful advice do they receive? That in deciding whether to impose the death penalty they must consider aggravating and mitigating circumstances.

The problem, as legal language expert Peter Tiersma points out, is that the average layman hasn’t a clue what the terms aggravating and mitigating mean in the legal context. At best, most jurors will understand the word “aggravating” in its colloquial sense as “annoying.” Of course, murderers tend to be, well, pretty annoying – does that mean they should all get the death penalty?

Well-meaning jurors sometimes beg the judge to explain such terms as aggravating and mitigating in plain language. But judges, fearful of getting reversed on appeal, typically refuse to deviate from the standard instructions. Inexplicably, many judges stoutly refuse even to give jurors written copies of the instructions.

A recent murder trial in Massachusetts ended with a jury instruction that ran to over 50 pages – even the judge lost her place while reading them. But when the jury requested a written copy of the instruction, the judge declined. It was only after two more days of pleas from the jury that the judge finally relented.

Entirely A Matter For You

The problem of jury confusion has a long and distinguished pedigree. Back in 1314, an English jury was asked to decide whether a parcel of land was free alms or lay fee. The jurors, displaying a woeful ignorance of the law (but an admirable command of the subjunctive) complained to the judge “we be no lawyers.” The impatient judge replied “Good people, say what you think.”

Although English judges historically resisted attempts to clarify the law for juries, they were sometimes happy to give their personal opinion as to the credibility of the witnesses. As recently as 1979, a British judge caused a furor by delivering an outrageously pro-defendant jury instruction at the conclusion of the trial of politician Jeremy Thorpe. The late Peter Cook brilliantly satirized the judge’s remarks in a sketch called “Entirely a Matter for You,” in which the judge blithely remarks:

We have heard, for example, from Mr. Bex Bissell: a man who by his own admission is a liar, a humbug, a hypocrite, a vagabond, a loathsome spotted reptile and a self-confessed chicken strangler. You may choose, if you wish, to believe the transparent tissue of odious lies which streamed on and on from his disgusting, greedy, slavering lips. That is entirely a matter for you.

In America, jury instructions got off to a promising start. In the early days of the republic, according to historian Lawrence Friedman, judges used to speak to juries off the cuff, in frank, common sense language.

As the 19th century progressed, appellate courts became increasingly keen to reverse the freewheeling lower courts at the slightest hint of legal error. As judges grew more cautious, jury instructions congealed into plodding, wordy documents that set forth the law in abstract terms. By 1850, one Massachusetts court tied itself in verbal knots describing reasonable doubt as something “that leaves the minds of the jurors in that condition that they cannot say that they feel an abiding conviction . . . of the truth of the charge.”

Come again? Never mind the double negatives and the obscure use of “abiding conviction,” this formulation was such a hit with the profession that it was ultimately inserted into the California Penal Code in 1929. The very same language found its way into Judge Ito’s jury instruction in the 1995 trial of O.J. Simpson. No wonder prosecutors in that case were unable to secure a conviction, abiding or otherwise.

Defining the Indefinable

Occasionally, courts pooh-pooh jury instructions on the ground that legal concepts such as “reasonable doubt” are indefinable. In 1889 a Mississippi court declined to reverse a murder conviction that had been based on an utterly opaque jury instruction, saying “[a]ll that can be urged against the [instruction] is that it is another instance of the vain attempt to do the impossible, i.e., to define that indefinable thing, reasonable doubt.” Sixty years later, an English judge came to the same weary conclusion.

One, of course, sympathizes with any judge asked to put the je ne sais quoi of reasonable doubt into words, but still, it might be worth the effort. In fact, the British judiciary has recently devised a jury instruction on reasonable doubt that sounds dangerously sensible:

How does the prosecution succeed in proving the defendant's guilt? The answer is - by making you sure of it. Nothing less than that will do. If after considering all the evidence you are sure that the defendant is guilty, you must return a verdict of 'Guilty'. If you are not sure, your verdict must be 'Not Guilty'.

Not bad – especially when you consider that British judges still wear horsehair wigs. Perhaps California juries will get the benefit of such clear instructions later this year when the new criminal jury instructions are released.

Mind you, the new criminal instructions, like the civil ones, will not be compulsory. Judges with a touch of nostalgia may still instruct the jury that “Failure of recollection is common. Innocent misrecollection is not uncommon.” Or they can use the new instruction: “People often forget things or make mistakes in what they remember.”

That, of course, is entirely a matter for them.

(This column originally appeared in the February 2005 issue of New York Law Journal Magazine).