Peter M. Tiersma
The importance of reform is most starkly evident when comprehension is truly a life-or-death matter. We need not delve into the details of death penalty jurisprudence here. Suffice it to say that in most American jurisdictions with capital punishment, it is the jury that decides the defendant’s fate. Yet the jury’s power of life and death is limited; the United States Supreme Court has made it clear that its discretion “must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.”1
Obviously, the only way to suitably guide the discretion of the jury is by having the judge properly instruct them. If that guidance is to be at all meaningful, the jury will have to understand the judge’s instructions. Incomprehensible guidance is an oxymoron.
Yet incomprehensible—or at least, convoluted—guidance is exactly what many death penalty juries receive. Under the typical American death penalty statute, the jury must first decide that the defendant has murdered someone under circumstances that make it a possible capital case; this limits the death penalty to only the most serious crimes. The jury must then consider both the aggravating and the mitigating circumstances. Typical aggravating factors are that the defendant tortured the victim before killing him or has a long history of committing violent crimes. Mitigating factors could be his unhappy childhood, his remorse, mental problems, or his mother testifying that he was a good boy who fell in with the wrong crowd. If the jurors decide that the aggravation outweighs any mitigation, they should vote for death. Otherwise, they should vote for imprisonment (often without the possibility of parole).2
While this scheme does indeed give the jury some guidance on how to decide the defendant’s fate, it has a serious flaw: its reliance on the technical terms aggravation and mitigation. Most courts blithely assume that jurors understand these words in their legal sense. The Supreme Court of Georgia has asserted—with no supporting evidence—that mitigation “is a word of common meaning and usage.”3 California’s high court apparently agrees, having held that these words do not have to be defined for the jury.4
The reality is that even in its ordinary sense, mitigate is a formal word that many ordinary jurors will not understand very well.5 As former Justice Thurgood Marshall observed, in its technical legal usage, mitigating is “a term of art, with a constitutional meaning that is unlikely to be apparent to a lay jury.”6 This is confirmed by a study of California’s capital jury instructions by Lorelei Sontag, who discovered that even relatively well-educated college students poorly understood the word.7
In contrast, aggravate is a fairly common word. But familiarity can be deceptive. In fact, it is a legal homonym. As linguist Robin Lakoff has written: “Mitigation is an uncommon word, bad enough, but aggravation is worse—its meaning here (worsening) is far from its normal colloquial sense (annoying).”8 This ordinary meaning of aggravate, to which the entire judiciary of the United States seems oblivious, is not exactly a recent innovation. Well over a hundred years ago, John Stuart Mill wrote:
The use of “aggravating” for “provoking,” in my boyhood a vulgarism of the nursery, has crept into almost all newspapers and into many books; and when writers on criminal law speak of aggravating and extenuating circumstances, their meaning, it is probable, is already misunderstood.9
In fact, Otto Jespersen noted that this meaning can be traced back at least as far as 1611.10 Aggravate therefore ordinarily means “annoy” or “irritate.” But surely jurors should not vote to put someone to death merely because the defendant, or his crime, aggravates them!
Virtually irrefutable evidence that jurors fail to fully grasp the meaning of these terms comes from several reported cases where capital jurors—after they have been “instructed”—come back to ask the judge to define or clarify what these terms mean, or request a dictionary to look them up. In one California case, the jury sent a note to the judge requesting “a definition of aggravation and mitigation.” The judge replied that the words should be given their “commonly accepted and ordinary meaning.” The jury responded: “Being unfamiliar with the term of mitigation we would like the dictionary meaning of both mitigation and aggravation, please.”11
In response to such questions, judges tend to just reread the original instructions. Other judges, trying to be more helpful, read a definition like the following from a legal encyclopedia or dictionary, obviously not written for laymen:
Aggravation. Any circumstance attending the commission of a crime which increases its guilt or enormity or adds to its injurious consequences, but which is above and beyond the essential constituents of the crime itself. I will next define “mitigating.” Circumstances such as do not constitute a justification or excuse of the offense in question, but which, in fairness and mercy, may be considered as extenuating or reducing the degree of moral culpability.12
Ironically, the judge who read these definitions did so in response to a jury’s request for “additional definitions of these words in layman’s terms.”13
In the published American opinions alone, there are at least ten capital cases during the past decade or two in which the jury is reported to have requested a definition or clarification of mitigating and/or aggravating.14 No doubt these represent merely the tip of the iceberg. Sontag’s study of capital juries in California presents further evidence that the problem is endemic.15 She interviewed jurors who had participated in ten capital cases, half of which reached death verdicts.16 Of the thirty jurors with whom she spoke, only thirteen showed adequate understanding of aggravating and mitigating.17 No less than half of the juries asked their trial judges for definitions of these critical terms.18 One juror reported:
The first thing we asked for after the instructions was, could the judge define mitigating and aggravating circumstances … I said, “I don’t know that I exactly understand what it means.” And then everybody else said, “No, neither do I,” or “I can’t give you a definition.” So we decided we should ask the judge. Well, the judge wrote back and said, “You have to glean it from the instructions.”19
Another member of the jury broke down in tears, confessing “I still don’t understand the difference between aggravating and mitigating.”20
This evidence strongly suggests that there have probably been dozens of people who have been condemned to die by juries who poorly understood the legal principles that were supposed to guide their decision. Ironically, the problem is one of the most basic errors in communicating with the public: throwing technical terminology at a lay audience. Every lawyer realizes, during questioning of witnesses, that technical terms must be explained in ordinary language. Yet once the instruction ritual begins, they seem to have forgotten.
Just as legal language consists of more than technical terminology, the problem with jury instructions transcends vocabulary. The late Professor Hans Zeisel, an expert on the American jury, surveyed potential jurors in Cook County, Illinois, to determine how well they understood the instructions that were typically given in a death penalty case in Illinois. Interestingly, the subjects comprehended several concepts relatively well. For instance, most of them correctly understood that if any individual juror decides that some factor (like the defendant’s age) is a mitigating factor, the juror can consider that mitigating circumstance in the weighing process. This point is somewhat counterintuitive, because virtually all other jury determinations must be made unanimously.21
Yet other points were more problematic. Consider the following instruction on the nature of mitigating evidence:
Mitigating factors include but are not limited to the following circumstances,
One, the Defendant has no significant history of prior criminal activity.
Two, the murder was committed while the Defendant was under the influence of extreme mental or emotional disturbance, although not such as to constitute a defense to prosecution.
If, from your consideration of the evidence, you find that any of the above mitigating factors are present in this case, or that any other mitigating factors are present in this case, then you should consider such factors in light of any existing aggravating factors in determining whether the death sentence shall be imposed.22