The "Walking Dictionary" Myth

by Thomas Lundy

(March 2005)

    Jury instruction jurisprudence attempts to draw a "bright line" distinction between terms which have a technical, specialized legal meaning and those which are defined by their common dictionary meaning.

    On one side of this "bright line" the trial judge must sua sponte define terms which have a "technical meaning peculiar to the law." (See Wharton’s Criminal Procedure (West, 13th ed. 1989) § 463 [Technical Terms Must Be Defined With Precision]; see also Cissell, Federal Criminal Trials (Lexis, 5th ed. 1999) § 12-7(a), p. 299-300; Gagliardo v. U.S. (9th Cir. 1966) 366 F2d 720, 725 [failure to define the word "indecent" was reversible error]; People v. Griffin (CA 2004) 33 Cal.4th 1015, 1022-1023; People v. McElheny (CA 1982) 137 CA3d 396, 403; Abercrombie v. State (IN 1985) 478 NE2d 1236, 1239; State v. Mundy (NC 1965) 144 SE2d 572, 573 [in robbery case, jury must be instructed that taking of property with felonious intent is an essential element of the offense, and court must in some sufficient form explain and define the term "felonious intent"]; Williams v. State (OK 1976) 554 P2d 842, 847 [definition of "proximate cause" is not commonly understood term].)

    On the other side of the line a trial court has no sua sponte duty to give amplifying or clarifying instructions in the absence of a request when a word or phrase used in the instructions given "is commonly understood by those familiar with the English language and is not used in a technical sense peculiar to the law."(People v. Griffin, supra, Cal.4th at 1022-1023; State v. Valles (1989) 162 Ariz. 1, 6.)

    However, these rules are actually founded on a myth. They falsely assume that lay jurors are "walking dictionaries" who will be able to accurately and precisely define every common usage instructional term off the top of their heads. We know this assumption is false as a matter of our own common experience and as demonstrated by actual juries who have improperly resorted to the dictionary for definition of instructional terms. (See e.g., People v. Karis (1988) 46 Cal.3d 612, 642; U.S. v. Gillespie (6th Cir. 1995) 61 F.3d 457, 459; Maslinski v. Brunswick Hosp. Center Inc. (NY 1986) 118 A.2d 834 [500 NYS2d 318]; State v. Richards (VA 1995) 466 S.E.2d 395, 400; but see People v. Landwer (IL 1996) 664 N.E.2d 677, 682 [error to refuse jury’s request for dictionary].)

    In sum, without instructional clarification jurors are put in an untenable situation by the jurisprudential myth that they are "walking dictionaries." Not only are jurors are unrealistically expected to know the correct dictionary definitions of every undefined instructional term, but they are expressly prohibited from consulting the most logical place to find the meaning of a common word or phrase–the dictionary.

    Accordingly, the instructions should either:

    1. Provide dictionary/common usage definitions of terms which jurors may not be able to fully and accurately define off the top of their heads; or

    2. Offer the jurors the option of obtaining definitions from the court, if necessary.

Reference To One Specific Term

The term ______________ (insert) as used in these instructions does not have a technical or specialized legal meaning. Use the common, ordinary meaning of ____________ when considering and applying these instructions.

If you are uncertain about the definition of this term do not consult a dictionary. Any juror who needs to have this or any other term defined should send out a note and a definition will be provided.

Reference To Multiple Terms

The terms ______________ , ______________, and _______________ (insert) as used in these instructions do not have technical or specialized legal meanings. Use the common, ordinary meaning of these terms when considering and applying these instructions.

If you are uncertain about the definition of these terms do not consult a dictionary. Any juror who needs to have these or other terms defined should send out a note and a definition will be provided.

Admonition That Counsel’s Definition In Argument Should Be Followed

A definition of the term[s] _______ has not been included in these instructions because you are to use the common meaning of it [them].

If counsel provides you with a definition of [this term] [these terms], you may rely on [that] [those] definition[s] unless [it] [they] conflict[s] with the instructions or I sustain an objection to counsel’s definition.

CAVEAT: This instruction is intended to address the situation where a defense requested instruction on a definition has been rejected on the basis that the definition is presumed to be within the common understanding of the jurors. In such situation counsel should be permitted to argue the point, but the jury may not give such argument the same stature as an instruction from the court. The above instruction is intended to address this concern.

    Such an instruction should be carefully evaluated because it may allow the jury to consider other definitions in argument from either side in the same fashion. Hence, counsel will have to be especially vigilant to object to misstatements by the prosecutor during argument.

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