Jurors to Face Less Legal Jargon

Times Staff Writer

Hoping to make jury instructions in criminal cases more user-friendly, the Judicial Council of California is rewriting them to replace legal jargon with common, recognizable phrases.

The council, the policymaking arm of the California courts, approved new “plain language” instructions for civil cases last year. Those for criminal matters are expected to be approved next year.

The terms are complicated enough to bewilder even the most devoted “Law & Order” fan: malice aforethought, gross negligence, mitigating factors.

Jurors must decipher such terms to decide guilt or innocence, or whether a defendant should receive the death penalty. Confusion can lead to disputes and deadlocks, misunderstandings and mistrials.


Because jurors’ educations and language skills vary, judges say, the instructions must be understandable to everybody. They also have to be simple enough to keep jurors’ attention.

“The average American attention span has been reduced to a gnat’s eyelash,” said Carol A. Corrigan, a state appellate justice heading the jury instruction task force. “If we can’t get it onto a bumper sticker or in a 10-second spot, no one is going to listen.”

The jurors’ job is to apply the law to the facts. If they don’t understand the law, Corrigan said, jurors can’t do their job.

The task of rewriting has fallen to a group mostly composed of lawyers, jurists and professors, who are researching the law to determine the best way to explain it to jurors -- without convoluted language and double negatives. The project began eight years ago, after a Judicial Council commission on improving the jury system determined that instructions were “impenetrable to the ordinary juror.”

The new civil instructions have been generally well-received, despite some initial “growing pains,” according to Lyn Hinegardner, an attorney with the state Administrative Office of the Courts.

Lawyers and judges have expressed concerns about the computer program that adjusts the instructions to specific cases. But they also have reported that jurors appeared to be understanding the legal concepts better.

Problems with existing criminal instructions have led to challenges in appeals courts. In one case, appellate judges threw out the second-degree murder conviction of a Los Angeles man because the instructions, and the prosecutor’s argument, misstated the nature of the defendant’s intent that was required to find him guilty.

In a San Diego case, appellate justices let stand a conviction of robbery and assault with a deadly weapon, but they reprimanded the trial judge for failing to define the phrase “preponderance of the evidence” to jurors.

California is a pioneer in the movement to make instructions more understandable. But in a system tied to tradition, the job has not been easy. Many judges and lawyers are reluctant to make changes.

“It’s almost like the Bible,” said Loyola Law School professor Peter Tiersma, who sits on the committee.

“People don’t want to change one word.”

Tiersma said the instructions contain archaic language dating to the 1800s and earlier, and are often long, formal and full of legalese.

“People in America don’t speak the same way in 2004 that they did in 1804,” Corrigan said. “Yet the law draws on opinions that have been written in that entire span.”

One criminal instruction reads: “A witness who is willfully false in one material aspect of his or her testimony is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars.”

The new instruction would read: “If you decide that a witness deliberately lied about something important, you should consider not believing anything that witness says. Or, if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest.”

The California District Attorneys Assn. proposed many revisions, arguing that some instructions either misstate the law or are biased in favor of the defense. Executive Director Dave LaBahn cited one proposal to replace the word “victim” with “person killed.” LaBahn said he also fears that there will be more verdicts challenged based on errors in jury instruction.

“Because we have a tried-and-true jury instruction system now, it’s hard to get people excited about throwing that all out and doing it over,” he said. “If you have a reversal of a significant case, it will bring into question -- why did we do this?”

Defense attorneys also have objected to some of the proposals as unfair or unclear. Arguments turn on the language, said Albert Menaster, who heads the appellate branch of the Los Angeles County public defender’s office, so ensuring that the instructions are accurate and evenhanded is crucial.

However the final version turns out, judges expect there to be challenges. David S. Wesley, supervising judge of the Los Angeles County Superior Court’s criminal departments, said lawyers inevitably will appeal verdicts based on the new instructions.

But Wesley says he also expects that when judges read instructions to jurors, they will see fewer baffled expressions and blank stares.


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In plain English


The Judicial Council of California is rewriting instructions to make them more understandable to jurors in criminal cases. Here are a few examples of the existing instructions and the proposed new instructions:

Existing: Innocent misrecollection is not uncommon.

Proposed: People sometimes honestly forget things or make mistakes about what they remember.

Existing: If you find that a defendant attempted to persuade a witness to testify falsely or attempted to fabricate evidence to be produced at the trial, that conduct may be considered by you as a circumstance tending to show a consciousness of guilt.

Proposed: If the defendant tried to create false evidence or obtain false testimony, that conduct may show that he/she was aware of his/her guilt.

Existing: Evidence is either direct or circumstantial. Direct evidence is evidence that directly proves a fact. It is evidence which by itself, if found to be true, establishes that fact. 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. An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts established by the evidence.

Proposed: Facts may be proved by direct or indirect evidence. Direct evidence proves a fact by itself. For example, if a witness testifies he saw it raining outside before he came into the courthouse, that testimony is direct evidence that it was raining. Indirect evidence is also called circumstantial evidence. Circumstantial evidence proves a fact based on a reasonable conclusion drawn from one or more other facts. For example, if a witness testifies he saw someone come inside wearing a raincoat covered with drops of water, that testimony is circumstantial evidence because it supports a conclusion that it was raining outside.


Source: Judicial Council of California

Los Angeles Times