Posted: 30 Jan 2002
Why is it that despite all the research showing that jurors have difficulties understanding their instructions, judges all too often still charge the jury in abstract and dense legalese? It would seem that courts are a rather poor mechanism for reform in this area. Lawyers are barely aware of the issue and seldom raise it until it is too late. Judges, in turn, are very reluctant to deviate from the text of the instructions for fear of reversal, and invoke a variety of rules and presumptions to uphold jury verdicts even when there is real evidence of confusion. These problems are illustrated by the Free and Gacy cases in Illinois, and the recent United States Supreme Court decisions in Buchanan and Weeks.
A more likely prospect for reform is the various committees that draft the standardized jury instructions in many jurisdictions. This article concludes by exploring the progress being made by a taskforce on criminal jury instructions in California, which has had to address issues such as how to deal with entrenched technical terms, the problem of whether and how to paraphrase statutory language, the correct level of formality of the instructions, the correct "template" for listing the elements of crimes, and how to avoid slanting instructions in favor of one side or another. It concludes that such committees can make substantial progress, though the path to reform is neither easy nor quick.
Suggested Citation: Suggested Citation
Tiersma, Peter, The Rocky Road to Legal Reform: Improving the Language of Jury Instructions. Brooklyn Law Review, Vol. 66, 2001. Available at SSRN: https://ssrn.com/abstract=298393