Results tagged “Jury Instructions”

February 7, 2011

PeterTiersma.jpg By Professor Peter Tiersma

During the past decade or so I have been heavily involved in California's effort to draft more comprehensible jury instructions. We've made a lot of progress. Previously, the state's judges solemnly informed jurors that, when evaluating the testimony of a witness, "failure of recollection is common" and "innocent misrecollection is not uncommon." Today, judges simply tell them that "people often forget things or make mistakes in what they remember." In the past, civil jurors were instructed to decide an issue in favor of the party whose evidence "preponderates." The new instruction requires that the evidence be "more likely to be true than not true."

Of course, the law contains many complex concepts that may not be easy to explain in ordinary language. The committees on which I serve (both civil and criminal) sometimes have lengthy debates on how to formulate such instructions. Yet perhaps the thorniest issue that we currently face is not an arcane legal doctrine, but what ought to be a relatively straightforward concept relating to juror behavior. Specifically, it is the principle that jurors are to base their decisions only on the evidence admitted during trial and not do research on their own. In the electronic age, this rule is becoming increasingly difficult to enforce.

Part of the problem is that a trial is an extremely artificial environment. The legal system demands that jurors strictly follow the law that the judge reads to them, setting aside anything they themselves know about the law as well as their own sense of justice and morality. And they must ignore anything they might know about the case or the issues raised by it. If you're an engineer, and the case involves an engineering issue, you are expected to have temporary amnesia and decide the issue purely on the testimony of the engineering experts. If you're not an engineer, you commit misconduct if you walk across the street to the library and consult an engineering textbook. It's hard to believe you're reaching a just verdict when you're told to ignore what you believe to be relevant information.

Until recently, violations of these rules occurred but were generally manageable. A bailiff might find a dictionary in the jury room with a mark next to the word "preponderate," and the judge would typically have a look at the definition and rule that the misconduct did not warrant ordering a new trial. What has changed, of course, is that people nowadays are able to access an ever increasing world of information using ever smaller devices. They no longer have to smuggle a dictionary into the jury room or walk to the library. Moreover, people expect to be able to answer just about any question in a matter of minutes online. So if jurors have a question about the position of a particular intersection, the background of the lawyers and judge, what a word in their instructions means, or how late the sun set on a specific day, it's all readily available on the internet. And other jurors are writing about their experiences--as they happen--on the internet or using text messages. Soon they'll be uploading video clips of the trial or their deliberations on YouTube, or checking their email, during those inevitably boring segments of the trial.

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