Nancy S. Marder
Over a decade and a half ago, Peter Tiersma identified problems with jury instructions that still remain true today. In Legal Language (1999), he described how and why jury instructions are written in a formal language that is difficult for jurors to understand. In “The Rocky Road to Legal Reform: Improving the Language of Jury Instructions” (2001), he elaborated on the problems with pattern jury instructions, but also described steps that California had taken to improve its instructions. Tiersma’s discussion of jury instructions in these two pieces invites a re-examination of why these instructions remain so difficult for jurors to comprehend and what can be done about it today. California’s revised “plain language” jury instructions—to which Tiersma made significant contributions—show that improvement is possible. California’s instructions should serve as a model and inspiration for other states.
In both Legal Language and “The Rocky Road,” Tiersma identified several features of jury instructions that make them difficult for jurors, untrained in the law, to understand. Jury instructions are typically written in formal language and contain words or phrases that are archaic, technical, or obscure. For example, capital jury instructions rely on technical terms like “aggravation” and “mitigation” (Tiersma 1999). Jurors, accustomed to everyday speech, are unlikely to be familiar with the technical meanings that the law ascribes to these and other words. As Tiersma explained, the law makes use of formality, just as religions do, in order to give authority to its texts. Although the formality of jury instructions might make them sound learned, this formality also stands in the way of easy comprehension. This is a problem in every jury trial, but is particularly significant in capital cases in which the jury has to decide between life or death (Tiersma 2001).
Although Tiersma focused on how the language of jury instructions makes them incomprehensible, I think the way instructions are presented to jurors exacerbates the problem (Marder 2006). Jury instructions are typically delivered by the judge at the end of the trial. The judge reads the instructions slowly and carefully, but usually with little expression. The reading can last for hours depending on the complexity of the case. In many courtrooms where the judge does not give jurors individual written copies of the instructions, jurors must sit and listen, hoping they can remember what they have heard. In other courtrooms, the judge gives all twelve jurors a single written copy of the instructions to share when they begin their deliberations.
Even though educational theory suggests that people have different styles of learning, courts treat jurors as if they all learn in the same way (Dann 1993). Some jurors learn best by reading, others by listening, and some by doing both. Courts could accommodate different learning styles by giving jurors an individual written copy of the instructions so that they can follow the instructions as the judge reads them aloud. They could then write down any points they want to raise during deliberations. An even better approach, which both Tiersma and I have recommended but which few judges follow, is to give jurors the opportunity to ask questions about the instructions before they begin their deliberations (Tiersma 2009