Relief Coming for Jurors Ill at Ease With Legalese

The slaying could have been committed with malice, but the weapon most definitely wasn’t a mallet.

A juror in a Fresno murder case misunderstood the judge’s instruction on “malice aforethought,” and thought that for a guilty verdict the defendant would had to have killed his victim with a mallet.

State Supreme Court Justice Marvin R. Baxter, who tried the case as a prosecutor, was floored when he learned several years later about the juror’s confusion.

He recalls very little about the three-decade-old murder case, but the surprise over the deliberations stayed with him.

“I have thought about it oftentimes over the years in terms of the whole idea of jurors receiving very complex instructions and being expected to really comprehend these complex terms,” said Baxter, who voted Wednesday to adopt easy-to-understand civil jury instructions. “It was simply an example of a situation where legalese can be easily misunderstood by people who aren’t used to it.... Simply stated, they can be misinterpreted.”

Malice aforethought, a deliberate intent to commit a crime, is among the thousands of arcane, confusing terms that spring from the tongues of lawyers and judges when they are in front of a jury. After six decades, the Judicial Council of California decided it was time to update and simplify the language.

Jurors are routinely instructed that “innocent misrecollection is not uncommon.”

To clear up any confusion, the judge will soon say, “People often forget things or make mistakes in what they remember.”

The council’s Commission on the Jury System found in 1996 that jury instruction was “on occasion, simply impenetrable to the ordinary juror.” Its recommendation was to turn the gobbledygook into short, declarative sentences in active voice that would not need a William Faulkner scholar to decipher.

“There is a very large and disturbing degree of miscomprehension,” said California Chief Justice Ronald M. George, who appointed a panel of mostly judges, lawyers, linguists and laypeople in 1997 to draft the new language.

The instructions were approved Wednesday by the council, the policymaking arm of the courts, and will be used starting Sept. 1. A related project to write new instructions for criminal cases will be completed in 2005.

“They should actually improve the quality of decision-making as well as make the process of jury service more palatable,” George said.

Some existing jury instructions rely on complex legal terms. Others are simply outdated. For example, “no one utters a check,” George said. “They write a check.”

Yet those words are still routinely used in California courtrooms.

One of the surveys that George cited as giving reason to revamp the instructions found more than half of the Washington, D.C., jurors questioned thought “preponderance of the evidence” meant “a slow, careful pondering of the evidence.”

But you can’t really blame the juror. Especially in California, where they are told that “preponderance of the evidence means evidence that has more convincing force than that opposed to it.”

After Sept. 1, they simply may be asked to determine whether evidence is “more likely to be true than not true.”

Task force members, led by Justice Carol A. Corrigan of the 1st District Court of Appeal in San Francisco, said the new instructions are more user-friendly, but they do not change the meaning of the law.

“It was simply, get it out of legalese and get it in plain English,” said Los Angeles lawyer Edith R. Matthai, a task force member. Attorneys are trained to value tradition and formality. They often repeat the flowery language spelled out in ancient appellate court opinions as a safeguard against changing the meaning of the law. They are slow to change, even when it could help jurors arrive at better-reasoned decisions.”We lawyers understand when we talk about strict liability and design defect,” said Christine D. Spagnoli, a plaintiffs attorney in Santa Monica. “Ordinary people think of a defect as something being broken. They did not necessarily understand how something could be defective in design.”

The new instructions were tested for 10th-grade comprehension.Justice James D. Ward of the 4th District Court of Appeal in Riverside said the need for clarity has never been greater, especially when a growing number of jurors speak English as a second language.

“We cannot afford to continue to use obscure and arcane forms of the English language,” he said.

Critics said that rewriting jury instructions might lead to the reversals of death penalty cases and multimillion-dollar civil verdicts. The current instructions have been litigated over decades and are firmly established in the courts.

Appellate lawyers will challenge the viability of each and every instruction. If one does not hold up, other cases using the same instruction also could be overturned.

“I think most judges are going to go with what they think works for now,” said Judge Aurelio Munoz, who leads the Los Angeles County Superior Court committee that historically has written the standardized jury instructions for criminal law.

Munoz said in complex cases, he probably would rely on existing instructions until the new one are tested in court. He doesn’t want to risk a retrial.

“They may have been arcane. And they may not have sounded as nice,” he said, but the old instructions have withstood legal challenges over time.

The existing instructions picked up much of their language directly from appellate opinions and statutes because drafters did not want to change the meaning of the law.

“You are trying to simplify something that is not simple,” Munoz said. “And that can be a problem.”

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Simpler language

New jury instructions have been created in California, replacing the arcane legal terms that often confuse jurors. Here are a few examples of the changes.

Existing: “Failure of recollection is common. Innocent misrecollection is not uncommon.”

New: “People often forget things or make mistakes in what they remember.”

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Existing: “Circumstantial evidence is evidence that, if found to be true, proves a fact from which an inference of the existence of another fact may be drawn. A factual inference is a deduction that may logically and reasonably be drawn from one or more facts established by the evidence.”

New: “Some evidence proves a fact directly, such as testimony of a witness who saw a jet plane flying across the sky. Some evidence proves a fact indirectly such as, testimony of a witness who saw only the white trail that jet planes often leave. This indirect evidence is sometimes referred to as ‘circumstantial evidence.’ In either instance, the witness’ testimony is evidence that a jet plane flew across the sky.”

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Existing: “ ‘Preponderance of the evidence’ means evidence that has more convincing force than that opposed to it. If the evidence is so evenly balanced that you are unable to say that the evidence on either side of an issue preponderates, your finding on that issue must be against the party who had the burden of proving it.”

New: “When I tell you that a party must prove something, I mean that the party must persuade you, by the evidence presented in court, that what he or she is trying to prove is more likely to be true than not true. This is sometimes referred to as ‘the burden of proof.’ ”

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Existing: “The amount of caution required of a person whose physical faculties are impaired is the care which a person of ordinary prudence with similarly impaired faculties would use under circumstances similar to those shown by the evidence.”

New: “A person with a physical disability is required to use the amount of care that a reasonably careful person who has the same physical disability would use in the same situation.”

Source: Judicial Council of California

Los Angeles Times