In his seminal article “The Rocky Road to Legal Reform: Improving the Language of Jury Instructions,” Peter Tiersma (2001) cites an English case from 1314 in which jurors were asked to decide whether land was “free alms” or “lay fee.” Presented with this arcane legal terminology, the jury complained, “We are not men of law,” to which the judge replied “Say what you feel.” Tiersma points out that here lies the nub of the problem with jury instruction: despite usually having no legal training, jurors need to be instructed in the law so that they can avoid “precisely the sort of arbitrary decision making that the rule of law seeks to prevent” (p. 1083). Even in cases where juries favour natural justice over black-letter law, they cannot go beyond (or “nullify”) the law without first understanding it. And in death penalty instructions in particular (as discussed in Tiersma’s 1999 book, Legal Language), understanding the law can be a matter of life and death.
This 1314 exchange between judge and jury illustrates the beginnings of a long history of judges failing to show adequate understanding of the jury’s voice in the decision-making process. We would ordinarily construe “we are not men of law” as an indirect request for assistance with the meanings of “free alms” and “lay fee.” But the judge ignores the ordinary pragmatics and effectively instructs the jury to put aside the law. Such pragmatic mishearing is endemic in judges’ responses to juries and these exchanges help us to understand why the road to legal reform of jury instruction has been so rocky. Furthermore, while jury instruction practices vary enormously across common-law countries (rendering much of the US research on “pattern instructions” considerably less relevant in other legal systems), there is remarkable similarity in some of the ways judges (and high court justices) respond to the jury.
Underlying these exchanges between judge and jury is a tension between authority and accommodation. The judge is the law’s authorized voice in court, imparting the authoritative discourse of the law to the jury (Heffer 2013a). Bakhtin notes that authoritative discourse “permits no play with the context framing it, no play with its borders, no gradual and flexible transitions, no spontaneously creative stylizing variants on it” (1981: 343). It thus leads to ritualized formulas in the voicing of instructions, but also to a legal fiction of the “presumption of comprehension” (as noted by Tiersma), since for the “discourse of authority” to remain “legitimate,” it is neither necessary nor sufficient for it to be understood (Bourdieu 1991: 113). At the same time, though, the judge is also legally and morally bound to communicate the law to the jury, and effective communication requires converging with, or accommodating to, the discursive practices of the audience. During witness examination and counsel’s speeches, lawyers and judges have no trouble explaining technical terms in ordinary language, yet, as Tiersma notes in Legal Language (1999: 236), “once the instruction ritual begins, they seem to have forgotten.”
Even if one accepts the predominance of authority as the guiding principle in the instructional texts themselves, jurors’ questions would seem to demand a move toward accommodation. While the Charrows’ first quantitative study of jury comprehension (Charrow and Charrow 1979