Your Lips Are Moving...But the Words Aren't Clear: Dissecting the Presumption that Jurors Understand Instructions
52 Pages Posted: 17 Sep 2014
Date Written: 2004
For many years appellate courts in the United States have relied upon a presumption that trial jurors understand and follow a trial court’s formal jury instructions. This article examines and questions the jurisprudence that turns a blind eye to evidence that the jury instruction presumption is ill-founded. While the presumption rules in any jury trial, this article emphasizes the particular injustice associated with its application in criminal cases. Evidentiary presumptions in criminal cases are subject to the rigorous requirement that they reflect “accumulated common experience” both in the past and the present. Therefore, it is particularly troubling that in criminal cases, the presumption regarding the efficacy of crucial jury instructions remains baseless.
This article traces and documents the judiciary’s stubborn adherence to the presumption that instructions are understood and followed. It explores five possible bases for the jury instruction presumption: legal precedent; history; logic and rationality; empirical evidence; and policy. The article reveals the lack of solid legal precedent for the presumption, argues that the history and development of trial by jury offers no support, and shows that the presumption satisfies neither rationality nor empirical tests. This author argues that it is far less impractical than thought, and far more just to discard this presumption.
Keywords: jurors, criminal law, jury instructions, jury, trials
JEL Classification: K14, K40
Suggested Citation: Suggested Citation