The National Association of Criminal Defense Lawyers magazine, The Champion (don’t ask me, I didn’t pick the name), has a particularly good article written by John May about helping jurors to understand what they don’t, jury instructions.
As Professor Peter Tiersma recently observed, “There has been a substantial amount of research during the past decades documenting that jurors do not understand traditional instructions very well, especially when more difficult concepts come into play.” Fear of reversal on appeal has inhibited judges from drafting clearer instructions. Experimental research indicates that the comprehension rate of jurors on procedural and substantive law questions is less than 50 percent. Part of the problem can be attributed to the fact that “jury instructions often contain much legal jargon; unfamiliar vocabulary; and long, complex sentences.” Not surprisingly, comprehension rates increase with education. The words used to define legal principles can have a dramatic impact upon verdicts. Experiments have demonstrated that different definitions of reasonable doubt can lead to very different outcomes on the same facts.
Nothing surprising, but a clear problem that requires attention. It’s not that jury instructions tend to be particularly kind to defendants. Indeed, no one has yet come up with a satisfactory explanation of reasonable doubt, and all attempts to do so have been more convoluted and problematic than the pattern charge.
As we struggle through our closing argument to tie in the facts with the law as the judge will charge, repeating the charge in such a way as to show how the law should be applied in a particular case and taking ownership of the instructions to give at least the appearance that the law doesn’t command them to convict, criminal defense lawyers have to find a path between objectionable analogies and obtuse, meaningless instructions, to clarify the jury’s duty.
This well-footnoted article contains numerous concrete suggestions for dealing with the problem of educating a jury on the instructions that will subsequently be given by the court in typical legalese. While some of the examples are a bit of a stretch, and would likely provoke a sustained objection, they still provoke thought on how to deal with the problem.
At one point, for example, the author uses a story about his wife’s “missing” shoes to explain the difference between direct and circumstantial evidence. It’s a cute story, reflecting how a bunch of perfectly reasonable assumptions can result in a perfectly reasonable, but totally wrong, conclusion.
While the story works well in the article, I wonder how far into it I would get before the judge interrupted to point out that he will instruct on the law and I would do better addressing something that bore some reasonable relationship to the case that my client was paying me to defend. Then, having been duly embarrassed in front of the jury and leaving them with half a story that went nowhere, I wondered how the author would suggest I salvage the mess left behind. The problem with brilliant ideas that are divorced from the courtroom dynamic is that they work so much better when there’s no judge in the room.
As is usually the case in the Champion, the article assumes that the reader is relatively oblivious, restating the obvious a few times to make sure that the least competent criminal defense lawyer gets the point. But it still offers some good suggestions and is worth a read.
Discover more from Simple Justice
Subscribe to get the latest posts sent to your email.
The problem with the judge in the room, and prosecutor, ready to spring an objection, would be a problem in the hinterlands where I practice as well.
I thought when I read the article that, to evade the problem, we might reduce the story to two or at most three sentences, and then the punchline.
As in, say, “Last year, following a trip by airline, my wife thought that a pair of her shoes had been stolen from her luggage, which had been inspected according to a tag affixed to it. We had the airline start an investigation. Then she found the shoes in a compartment of the luggage. That is an example of a reasonable assumption, based on circumstantial evidence, not direct evidence, leading to a wrong conclusion. It is a commonplace story that may assist you in your deliberations.”
Hopefully this would make the point, slipping it in by stealth. The author’s examples are too long.
“Apologize your honor,” and move on after the judge or ADA or both finish their vocalizing.
Sometimes we have to be dumb like a fox.
Absolutely, and I apologize as I just realized that I didn’t credit you for the tip on this article.
No need to apologize. I don’t care.
I read it with interest because I am persnickety about charge conferences. This is whether in trial, or eyeballing them in appellate transcripts, thinking about how to fix somebody else’s mistakes if mistakes were made.
I love the Bibical story in the article which I could I think edit to three sentences. (I learned many of my writing and speaking techniques working for an attorney who was also an engineer.)
Leave the jury to their impression of the judge or DA or both micromanaging that story, after the fact. Move swiftly to the next point. I think you could do it, Greenfield. And it would be fun.
I gotta say, as a non-lawyer, that I didn’t understand the Bible story at all, and I still don’t get the difference between “knowingly” and “willfully” and why it would be important.
Sorry to get back to this a little late, Windy. The author would have assisted in clarifying the distinction between knowingly and willfully with a few sentences giving us context, as in what was the case about? What was the defendant charged with? This is technical.
It may create a distinction between, to use a simple example, reckless murder (or manslaughter 2nd, killing a person without a conscious intent to kill him but with a knowing disregard of a risk of death) and intentional murder (killing a person with conscious intent to engage in conduct which the law forbids). The distinction is in the jury instructions, not the statute, in NY. The instructions could include the word “willful” but the version I am looking at do not.
In some statutes, say for example, NY drug possession, the words in the statutes are “knowing and unlawful possession.” Not knowing and willful. This means, essentially, ignorance of the law is no excuse. NannyState legislators, you know.
Anyway, for homicide, a real life example would be going out hunting, seeing a deer grazing in a field, to the side of but behind your hunting partner, who has a screaming safety orange jacket on, not camoflage, so it is obvious where he is, dangerously close to where you are aiming your shotgun. Then, shooting at the deer and missing it and shooting your buddy instead. Killing him. Not with the intent to kill him or even to injure him because after all, he is your friend. “Knowing” disregard under these facts. Man. 2nd, reckless murder, 8 to 15 years is the potential prison sentence.
Intentional murder is walking up to your hunting buddy, telling him “I hate you and you deserve to die,” aiming the shotgun directly at his chest, and shooting him. Or as he turns to run, emptying your shotgun of shells aimed at his back. Both cases are killing him “willfully” — with the conscious intent to do so, which the law forbids. First degree murder -intentional. 25 to life. A big difference in years of lost freedom.
The distinctions (there can be several in one case to get instucted on) can be difficult to make for a jury, but life is tough. Deal with it. Make the court reread the instructions as many times as needed for everyone to grasp. Make the defense happy.
The distinctions are important not only in assessing whether and to what degree the defendant “meant it,” in layman’s terms, but also in sentencing.
And so, knowing and willful are two gradations in the culpable mental state that juries are instructed are necessary to convict of a charge or its lesser included charge.
BTW an example of pure innocence, with proof for the defense to put on is: That wasn’t me that shot him. That was my evil twin sister. I live in NYC and she lives in the shinterlands where I’ve never visited.
It is also used in the civil context in assessing liability for personal injury, for example, and based on that assessment, an award of damages ($).