Could You Use Smaller Words?

Following the trio of death penalty decisions by the United States Supreme Court, which can be found on the SCOTUS blog, Anne Reed at Deliberations opines about the “high confusion” of death penalty juries in following instruction to reach their decisions.  The piece is called Give Me Clarity or Give Me Death.  What a great title.

While I completely support both the issue and the commentary as to the lack of clarity based upon the Supreme Court’s own inability to present a cogent approach, it also provides another opportunity to remind everyone that the rest of the instructions given to jurors continue to fail miserably to serve their sole intended function of providing a framework for a jury to reach a verdict.

I’m reminded of the efforts over the years to reform the instructions on “beyond a reasonable doubt” so that a typical juror can understand and appreciate its meaning.  No one has every been able to do so.  This is a problem, dontcha think?

We lawyers love our words.  So precise.  So clear.  So filled with inherent content developed over centuries of squabbling.  But jurors, most of the time, are not lawyers.  So these wonderous words that we hold so dear, and take for granted, have disasterously different meanings to jurors (and a few lawyers, who aren’t always the sharpest knife in the drawer).  We speak these words on summation, to tie in the judge’s instructions to our arguments so that the jurors believe that we (and not the other guy) fit into the sounds eminating from the court’s lips.  Why do we strain so hard to match our rhetoric with the court?  Because those of us with any experience at all know that the instructions are going to fly over the heads of some, perhaps most, jurors.  We will take every potential tool available to seize the advantage.  Can you blame us?

It’s not that jurors are stupid or ignorant.  It’s that we use a strange foreign language, and everyone knows it except us.  The legalese that clogs jury instructions does not, contrary to many lawyers’ belief, make for dazzling cocktail party chatter.  Regular people just don’t have much call to say the phrase “malum in se.”  Go figure.  And they generally aren’t impressed with lawyers who slip it in when trying to get a date. 

As courts struggle to find a way to express the legal concepts they are required to convey to the jury right before the jury is sent to the back room to eat deli sandwiches, we fall into the abyss of yet another legal fiction where we must presume that the jury not only heard and understood the instructions given, but followed them in reaching their verdict. 

So yes, the confusion of SCOTUS in providing clear instructions for the death penalty is a problem, particuarly if you happen to be on the receiving end of the indictment.  But we should never forget that the matter of jury instructions at all levels and in all respects is a bit of a weak link in our criminal justice system.  I was going to insert one of our beloved platitudes here about the best system available, but I’ve decided to make today platitude-free and will resume my scandalous sarcastic approach to platitudes some other day.