Of Jurors and Jury Instructions

I attended a recent Federal Bar Association breakfast that was hosted by a thoughtful member of the federal bench in Massachusetts. He raised an important question about juror comprehension: Should each juror have a personal copy of the Court’s jury instructions and read along with the judge throughout the charge?

This was not an idle or purely academic question. The judge had researched the question with one of his law clerks, and, with their fruits and his own experience on the bench, the answer in his view is yes. This question is not one about which trial lawyers ordinarily take a position during trial; attorneys generally defer to the trial judge’s practice and procedure. But contemporary research suggests that this should change.

There is widespread agreement that jury instructions themselves can improve. See e.g., Rachel Small, Judith Plantamia, and Brian Cutler, Assessing the Readability of Capital Pattern Jury Instructions, The Jury Expert (Vol. 25, Issue 1, Jan.-Feb. 2013). For example, jury instructions should be written: “to match the literary levels of American jurors,” id. at 4; without passive verbs; with legalese minimized; and, generally, in “plain English.” Janet Randall, Improving Juror Comprehension: Reading While Listening, LSA Annual Meeting Paper at 4 (Jan. 2015)..

Whether attorneys can write in plain English to improve comprehension without sacrificing meaning is a question for another day. But, in addition to improving the written instructions themselves, trial lawyers and judges can, as suggested at the breakfast, provide each juror with his or her own copy of the instructions. Research suggests that reading along as they listen to the instructions will improve comprehension, sometimes dramatically. Id.

Other recognized methods for enhancing juror comprehension and deliberations include:

(i) Pre-instructing the jury on the substantive law prior to the testimony;

(ii) Instructing the jury before closing argument;

(iii) Providing instructive guidance on deliberative process and the assessment of witness memory and demeanor; and

(iv) Providing the jury with one or more reference copies of the Court’s jury instructions in deliberations.

Mark W. Bennett, Unspringing the Witness Memory and Demeanor Trap: What Every Judge and Juror Needs to Know About Cognitive Psychology and Witness Credibility (Am. Univ. L. Rev. at 26-27, Jan 29, 2015).

As our host and judge suggested, contemporary social science has identified methods to improve juror comprehension and thus potentially the trial outcome and experience. It is time now to implement some of these suggestions for our clients’ benefit.

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