Peter M. Tiersma
Originally, there was a rule in England that judges were not supposed to instruct jurors at all; they could only answer questions.1 Even then, the answers to jury questions were not always very helpful. In the 1314 case of Abbot of Tewkesbury v. Calewe, a jury was asked to decide whether certain land was “free alms” or “lay fee.”2 They pointed out to the judge, “We are not men of law,” implicitly requesting his assistance.3 The judge replied, “Say what you feel.”4 This is the problem, of course. If a judge does not explain to the jury what it is supposed to do, the jury will do what it feels is best. This is precisely the sort of arbitrary decision making that the rule of law seeks to prevent.
Eventually, judges in England did begin to instruct jurors on the law. But even today, English jury instructions (part of the judge’s “summation”) remain oral and relatively informal. The judge summarizes the facts and possible inferences to be drawn from them and then tells jurors in his own words what the relevant law is.
As in England, American judges originally did not instruct jurors on the law. Jurors were expected to use their common sense. Common sense may have worked well enough when the country was largely rural. But as the country industrialized, legal disputes became more complex and the need for consistently applied rules of law became more pressing. Eventually, jurors lost the right to decide questions of law. Additionally, toward the end of the nineteenth century, many states took away the power of the judge to charge juries on the facts. Thus arose the modern division of labor in which the judge decides the law and the jury is entrusted with the facts. Inevitably, jurisdictions began to require the judge to instruct the jury on the relevant law.
The legal profession soon came to realize that instructing the jury could involve a lot of work and duplication of effort. With every trial, judges and attorneys would spend time drafting the instructions. Another problem was that instructions were often inconsistent from judge to judge. And judges were often reversed for instructional error.
In 1935 Judge William J. Palmer of the Superior Court of Los Angeles, California, addressed some of these issues in an article recommending that a committee be formed to compile approved instructions for civil cases.5 The presiding judge of the court was impressed by the idea and appointed a committee of lawyers and judges to accomplish this goal. The committee published a book of instructions a few years later. The descendant of this book of instructions is still used in California, where it is known as the Book of Approved Jury Instructions (“BAJI”). A similar book of criminal instructions, California Jury Instructions: Criminal (“CALJIC”), soon followed.6 The venture was a tremendous success and has since been imitated by many other states.7
Tellingly, the name of the original collection of civil jury instructions in California, and especially the reference to “approved” jury instructions, lays bare both the strengths and weaknesses of the approach that was generally taken by the committee of judges and lawyers in California and in many other American jurisdictions. The philosophy of much of the original pattern jury instruction movement was to search for language to which a court or legislature had given its stamp of approval. This approved language was found, for the most part, in judicial opinions and in statutes. The approach had a very powerful advantage. Copying verbatim the language of statutes—and, to a somewhat lesser extent, judicial opinions—was a virtually foolproof method of insulating the instructions from legal attack on appeal. After the Constitution, legislation is supreme in our legal system. Who could fault a judge for reading to the jurors from a statute when the statute, by definition, is an accurate statement of the law?
Yet there were and are some significant downsides to copying approved language. Many of the cases and statutes that contain the rules of law were drafted quite a while ago. The words in one version of the reasonable doubt instruction, still used today, were taken verbatim from a Massachusetts case decided in 1850.8 Moreover, cases and statutes are written primarily for an audience of lawyers and, thus, have never been intended to be read and understood by the lay public. Consequently, using approved language and publishing the results did save time and probably resulted in fewer reversals for instructional error. But it did not increase jurors’ understanding of the law. In fact, it may have had the opposite effect.
Research confirms that jury instructions are hard for the average juror to understand. The seminal study by Robert and Veda Charrow analyzed some of California’s BAJI (civil) instructions. The Charrows found that their research subjects understood roughly one-half of the instructions. They then rewrote the instructions in a way that maintained the meaning but avoided some of the linguistic problems in the originals, producing better—albeit not perfect—comprehension scores.9 A substantial number of studies of instructions in other jurisdictions have produced similar results.10 The message is that it is possible to reform the language of jury instructions and thereby achieve greater comprehension. Jurors may never fully understand the law, but we can do better.