Say What, Your Honor?

Ladies and gentlemen of the jury, you have heard both sides of the case. And now the judge will instruct you on the law governing your deliberations.

One of the many things the judge says is:

Innocent misrecollection is not uncommon.

But suppose the judge uses plain English instead of that mind-twisting triple-negative. Suppose she says:

People sometimes honestly forget things.

The law might be a lot clearer, and that’s the mission of an ambitious statewide effort to overhaul jury instructions--those sometimes grandiloquent, at times downright incomprehensible, explanations that judges must give to jurors before they review the evidence and decide cases.

Led by the state Judicial Council, the policymaking arm of the California Supreme Court, a group of judges, lawyers, linguists and laymen is writing a new, simpler set of instructions that they hope will be in use within two years.

“Why not explain the law to jurors in language that they understand?” said Associate Justice Carol A. Corrigan of the state Court of Appeal in San Francisco, who chairs the jury instruction task force. “If the law’s not clear, it makes it a lot harder for them to do their job.”

But in a profession noted for its tradition-bound ways, skepticism and opposition are not hard to find.

“Tinkering with something that’s tried and true is always dangerous,” said San Fernando Superior Court Judge Howard J. Schwab, who chairs the Los Angeles County courts committee that writes the civil jury instructions now in use, which the Judicial Council intends to replace.

The Los Angeles County courts have more than pride at stake.

Though no law forces any judge to use the Los Angeles instructions, over the years they have become the most widely used in courthouses across the state, and under a copyright agreement, the Los Angeles County courts have been receiving royalties. In the last 10 years, jury instruction sales have generated about $2.5 million. In recent years, the money has been spent to refurbish Los Angeles jury assembly rooms and to hire a consultant to implement a one-trial jury service program, according to the court’s deputy Executive Officer Debbie Lizzari.

“If the Judicial Council is successful, that [money] will disappear,” said Victor Chavez, presiding judge of the Los Angeles County Superior Court. “Then we won’t be able to do the things we have been able to.”

The Judicial Council plans to give away its jury instructions for free or sell them at cost.

“What the Judicial Council wants to do is to offer judges an alternative,” said Chief Justice Ronald M. George of the California Supreme Court. “We want to make [jury instruction] more user-friendly.”

Long ago, judges prepared jury instructions on a case-by-case basis, typically in collaboration with the lawyers involved. To save time, judges began sharing with one another.

Los Angeles County was a pioneer in what became a nationwide movement to standardize statewide jury instructions when Superior Court Judge William J. Palmer began publishing them in 1938. But some instructions are gobbledygook.

“Sometimes you look at these instructions and you think to yourself, ‘I don’t understand what it means. How can a jury understand what it means?’ ” said Michael J. Farrell, supervising judge for Van Nuys Superior Court.

Consider what judges currently tell jurors in murder cases:

The law does not undertake to measure in units of time the length of the period during which the thought must be pondered before it can ripen into an intent to kill which is truly deliberate and premeditated.

The Judicial Council’s proposed instructions would have judges say:

The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated.

A Maze of Legal Terms

There are many reasons jury instructions can sound so convoluted, experts say.

First is the legal profession’s love of formality. The way judges embrace decorum and flowery words while lording over proceedings is not too different, some say, from how priests and rabbis speak in ancient tongues during religious services.

Then there’s our judicial heritage of borrowing from French law, which left us with bizarre-sounding phrases such as malice aforethought.

California’s jury instructions also mirror the law--too closely, critics say. Many were modeled, word for word, after the stilted language of statutes or appellate opinions.

“There’s a certain format in terminology that lawyers and judges are used to,” said Janet Green, director of health services at San Bernardino Valley College and a nonlawyer on the Judicial Council’s task force.

For the average juror, though, it can sound like a foreign language.

A 1996 report by a Judicial Council commission on improving the jury system found that “jury instructions as presently given in California and elsewhere are, on occasion, simply impenetrable to the ordinary juror (and, in the case of certain instructions, to the ordinary jurist as well).” One of its recommendations was to use more understandable language.

After that report, the Judicial Council task force approached Los Angeles judges and asked them to join in a project to simplify their published instructions. But they declined.

“When we first began this effort three years ago, all of us just assumed that we would take [Los Angeles instructions] and improve on them,” said Associate Justice James D. Ward of the state Court of Appeal in Riverside, vice chairman of the task force. “Then they announced to us that they owned them.”

Los Angeles judges, long proud of their work, said they felt they were being pushed aside.

“They came in and told us they wanted to take it over,” said Los Angeles Superior Court Judge Aurelio Munoz, who chairs the committee for criminal jury instructions. “The Los Angeles Superior Court has about one-third of the state’s judges. They were only willing to give us two out of a 30-person committee. They wanted to cut us out of it.”

Moreover, the Los Angeles judges say that jury instructions should repeat the law the way it exists, legalese or no legalese, and fear that altering words can change their legal meaning.

The Judicial Council’s effort is part of a fledgling national movement. In the past decade, at least two other states have made considerable effort to simplify their instructions. Michigan overhauled its criminal law instructions in the early 1990s. Delaware released plain-English civil instructions in 1997, and an effort is underway to do the same for the state’s criminal law instructions. Experts cite Oregon, Arizona and Alaska as states that are using more plain-English instructions than most.

Critics of the traditional instructions worry that juror confusion can lead to injustice. In extreme cases, it can affect matters of life or death.

In studies involving the death penalty, researchers found that jurors who received traditional instructions were more confused and more likely to vote for capital punishment than jurors who received simpler instructions.

“Even if one juror misunderstands, that may be the difference between someone being executed and someone not executed,” said Shari Seidman Diamond, law professor at Northwestern University.

The Judicial Council task force has not yet tackled death penalty instructions. But if its draft instructions offer any indication, the language is likely to be more straightforward. That means using an active voice, and favoring short, declarative sentences over long ones with complicated syntax.

Out with the double- or triple-negatives. Out with unnecessary words. At times, that means replacing Black’s Law Dictionary terms with household vernacular.

So rather than preponderance of the evidence, the proposed instructions would tell jurors more likely true than not true.

Instead of circumstantial evidence, jurors are asked to consider indirect evidence.

“If jurors understand better what they’re supposed to do, you’ll have more confidence in the verdicts they reach,” said Peter M. Tiersma, a linguist and Loyola Law School professor on the Judicial Council task force.

Some in the legal community are applauding the attempt to change.

“They’re clearly easier to read. They’re well-supported by law,” said Robert S. Gerber, a San Diego civil trial attorney and chairman of the litigation section of the State Bar of California. “People feel it’s been a terrific effort.”

But others remain guarded.

The Los Angeles instructions, because they have been around for so long, offer stability and predictability in a legal system based on stare decisis--the legal doctrine that requires courts to abide by precedents decided by higher courts.

Appeals Become a Major Concern

According to a 1989 study by the National Center for State Courts, approximately 13.5% of cases reversed by state appellate courts were due to instructional error. Judges and lawyers fear that new, untested instructions could fare much worse.

An appellate court can reverse a case if it deems a single word in a jury instruction unacceptable, or if a judge unfamiliar with that instruction misuses it.

“There’s a comfort zone in [the Los Angeles instructions],” said C. Robert Jameson, presiding judge of Orange County Superior Court. “I don’t know too many who would turn cold turkey to Judicial Council’s instructions overnight.”

The California District Attorneys Assn. reviewed the proposed instructions and was alarmed by what it found. “A significant problem with the instructions is that they have adopted a pro-defense bias,” stated the association’s 12-page critique. “We believe the wholesale change of existing [criminal] instructions to be a serious mistake.”

There’s also the issue of appeals.

The Judicial Council “may hold some moral sway over appellate courts, but it’s not legal precedent,” said Tom Orloff, president of the California District Attorneys Assn. “From prosecutors’ point of view, you want [jury instructions] that won’t jeopardize convictions. If it’s been approved by appellate courts, that’s the one you’re going to want to use.”

Headed by the chief justice, the Judicial Council, which includes 15 judges, four attorneys and two members of the state Legislature--can recommend but cannot compel the use of specific instructions. Its plain-English instructions will be subject to judicial review, and Superior Court judges who use them during trial are still subject to reversal if appellate court justices, whose job is to review trial results, find wording problems or misuse.

“Just because it’s put out by Judicial Council doesn’t mean it’s more likely to be upheld on appeal. It’s up to individual judges,” said Deputy Public Defender Alex Ricciardulli, the expert on jury instructions in the Los Angeles County Public Defender’s appellate division. “What they come up with is not the law of the land.”

Of course, the California Supreme Court, which has authority over all state courts, has the final word.

The mere fact that the Judicial Council’s instructions have never been used in court before will spark more appellate litigation, some predict.

“That’s true now any time there is a new jury instruction. There’s obviously going to be litigation over what specific words in the instruction convey or mean,” said Asst. Public Defender Robert Kalunian, whose office is generally supportive of the Judicial Council’s efforts but still plans to appeal any individual instruction it believes to be problematic.

For the time being, champions of the new instructions continue to claim superiority.

“When ours become available, if they are as good as we think they can be, they’ll be accepted into common usage,” said Ward, vice chair of the Judicial Council’s task force.

Replies Schwab, the Los Angeles judge: “We feel we did a good job for years. If someone does a better job, that’s fine. The jury is still out.”