PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988
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Appendices

        Appendix A    Suggestions For Improving Juror Understanding Of Instructions
        Appendix B    Comparison Of Selected Instructions From This Collection With Similar Instructions From Other Collections

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

APPENDIX A

By Allan Lind and Anthony Partridge

This appendix is based on a paper prepared in 1978 for the Federal Judicial Center's Committee to Study Criminal Jury Instructions. The paper was an effort to set forth some suggestions for drafting jury instructions derived from several empirical studies about juror understanding of instructions. This appendix reflects, in addition, the experience that we have gained in working with the committee.

The principal empirical studies have been conducted by Robert and Veda Charrow [Footnote 1] and by Amiram Elwork, Bruce Sales, and James Alfini. [Footnote 2] Both groups of researchers tested lay comprehension of state-court pattern jury instructions and found substantial lack of understanding. Both research projects showed that it is possible to improve the understanding of jury instructions by removing certain linguistic features that make comprehension difficult.

Most of the suggestions below necessarily have a negative cast: They are suggestions that certain constructions be avoided. Implicit in all of the suggestions is the basic rule that instructions should be delivered in easily understood, unambiguous English. It must be emphasized that the suggestions are by no means intended as absolute rules. We do not anticipate that most instructions will be wholly free of the features identified here as undesirable. Many instructions containing some of these features may, indeed, be readily understood. But each of the features identified appears to present some obstacle to effective communication. Where the use of one of these problem features seems necessary or desirable, therefore, it may be worth a special effort to avoid including other problem features in the same passage. The obstacles should be regarded as cumulative in their effect: A juror may be able to understand with ease a single instruction, standing alone, that contains one or a few of these features. But it may be much more difficult to understand a passage that contains several of them, and still more difficult to understand a series of instructions in which such features regularly appear.

The examples used below are drawn from the three principal sets of pattern criminal instructions widely used in the federal courts: Devitt and Blackmar, Federal Jury Practice and Instructions (3d ed. 1977); Committee on Pattern Jury Instructions, Fifth Circuit District Judges Association, Pattern Jury Instructions (Criminal Cases) (1978); and Committee on Federal Criminal Jury Instructions of the Seventh Circuit, Federal Criminal Jury Instructions (1980).

Vocabulary

Suggestion 1: Avoid using words that are uncommon in everyday speech and writing.

Both intuition and research evidence tell us that the use of uncommon words tends to impede understanding of what is said. The problem is not only that jurors may not know the meaning of the words. Even if the meaning is known, it will generally require more effort to understand a passage containing one or more uncommon words than a passage whose vocabulary is more familiar.

Unfortunately, identifying uncommon words is not as simple as it sounds. On the one hand, the intuition of highly educated, legally trained people is not likely to be a reliable guide to the frequency of word use by the population at large. On the other hand, the frequency of use that is reported in published works based on word counts seems to be heavily dependent on the selection of the material to be studied. One published count is based on recordings of patients' discussions with their psychiatrists; another is based on reading matter assigned to pupils in the third through ninth grades. None of the counts, apparently, includes advertising materials or package labels, although these are surely an important part of our exposure to language.

In spite of the limitations of the publications based on word counts, they can be of considerable help in an effort to minimize the use of uncommon words. After reviewing the available publications of this type, we have concluded that the most helpful is probably E.L. Thorndike and I. Lorge, The Teacher's Word Book of 30,000 Words (Bureau of Publications, Teachers College, Columbia University, 1944). Although this work is based solely on word counts of samples of written English and is relatively old, it has compensating advantages when compared with more recent efforts. Also, it is still in print.

We suggest that an effort be made to use high-frequency words where they can be substituted for lower frequency words and that words be regarded as particularly suspect if they are reported in Thorndike and Lorge as appearing less frequently than ten times per million words of writing. (About six thousand words were reported as appearing at least this frequently.) But use of the Thorndike and Lorge book should be tempered by recognition of its limitations; even judges who are cautious about relying on their intuition will readily recognize that some words reported as low-frequency are familiar to almost any American.

Some uncommon words that often appear in jury instructions are listed below, together with their reported frequency of use (that is, the number of times the word is used per million words of writing, as reported in Thorndike and Lorge). Parenthetical material shows the frequency of use of closely related words; arguably, the frequencies of the main and related words should be cumulated in considering the likelihood that the main word will be easily understood by jurors.

The example below is a jury instruction that makes substantial use of uncommon words. These words, whose frequencies are shown on the above list, have been italicized.

Example

A witness may be discredited or impeached by evidence that the general reputation of the witness for truth and veracity is bad in the community where the witness now resides, or has recently resided.

If you believe any witness has been impeached and thus discredited, it is your exclusive province to give the testimony of that witness such credibility, if any, as you may think it deserves.

Suggestion 2. Avoid using words to convey their less common meanings.

The research by Elwork, Sales, and Alfini suggests that difficulties in juror comprehension may be caused by the use of common words to convey relatively uncommon meanings. At worst, the word may be misunderstood; even if the word is understood, the difficulty of resolving the ambiguity may impede understanding of the entire instruction. For example, the use of the word "admit" to refer to a judge's evidentiary ruling may produce confusion with the more common meaning of conceding the truth. of a proposition.

Many idioms that are used routinely by lawyers employ words in ways that are not likely to be familiar to laymen. The following idioms, often found in jury instructions, are examples:

as to burden of proof

competent witness (referring to a quality other than the witness's skill)

court (to refer to the judge rather than the building or the institution)

disregard evidence

find a fact

immunize from prosecution

judicial notice

material matter

sustain objections

The problem of legal terminology is logically subsumed under the previous suggestions, but it is worthy of special note. There is little if any harm in using legal terms that have wide common use (for example, "arrest") or when it is reasonable to assume that the juror will have learned the meaning of the term during the trial (for example, "exhibit"). But many legal terms are uncommon terms in normal speech, and many are common terms used to convey uncommon meanings. They should be avoided to the extent possible.

It is important to remember that even the most familiar terms to those trained in the law may be quite foreign to the layman. For example, the word "indictment" is reported by Thorndike and Lorge to occur only six times per million words in normal writing. The word "information" is of course very common, but its common meaning is not as a document filed in court.

Sometimes, there is no practical alternative to using an unfamiliar legal term and defining it for the benefit of the jury. The practice should be confined to those situations in which it is absolutely necessary, however. There is no reason to expect that jurors will be able to assimilate very much new vocabulary in the course of the normal, relatively short trial.

Frequently, legal terms are introduced in situations in which they are not needed to communicate the essence of the instruction. In example 1 below, for instance, the word "accomplice" is defined and used. In example 2, the same guidance is given without introducing the term. In some cases, of course, the legal term will have been introduced by the lawyers, and the court may wish to use the term to relate the charge to what has gone before. But for the most part, juror understanding is more likely to be facilitated by avoiding the legal term altogether.

Example 1

An accomplice is one who unites with another person in the commission of a crime, voluntarily and with common intent. An accomplice does not become incompetent as a witness because of participation in the crime charged. On the contrary, the testimony of one who asserts by his testimony that he is an accomplice, may be received in evidence and considered by the jury, even though not corroborated by other evidence, and given such weight as the jury feels it should have. The jury, however, should keep in mind that such testimony is always to be received with caution and considered with great care.

Example 2

You have heard testimony from __________ who stated that he, was involved in the commission of the alleged crime charged against the defendant. You may give his testimony such weight as you feel it deserves, keeping in mind that it must be considered with caution and great care.

Suggestion 4: Avoid sentences with multiple subordinate clauses, and particularly, avoid placing multiple subordinate clauses before or within the main clause.

The Charrows have observed that sentence length per se is not a major problem for the comprehensibility of instructions. Long sentences are as easily understood as short sentences if they are simple in their grammatical structure. However, many long sentences in pattern instructions are long because they contain many subordinate clauses. Not infrequently, as in the examples below, the subordinate clauses precede the main clause, with the result that the listener must wait for the end of the sentence to learn what it is all about. This structure should be avoided.

Example 1

If you should decide that the opinion of an expert witness is not based on sufficient education and experience, or if you should conclude that the reasons given in support of the opinion are not sound, or that the opinion is outweighed by other evidence, then you may disregard the opinion entirely.

Example 2

Only if by evidence independent of Exhibit X you conclude that there was a scheme to defraud and you are then trying to make up your mind whether, the defendant A, who agreed to the order, thereafter had a specific intent to defraud somebody, may you take Exhibit X into account at all.

Example 3

If, then, the jury should find beyond a reasonable doubt from the evidence in the case that, before anything at all occurred respecting the alleged offense involved in this case, the defendant was ready and willing to commit crimes such as are charged in the indictment, whenever opportunity was afforded, and that government officers or their agents did no more than offer the opportunity, then the jury should find that the defendant is not a victim of entrapment.

Suggestion 5. Avoid omission of relative pronouns and auxiliary verbs.

The Charrows found that the omission of relative pronouns and auxiliary verbs increased the difficulty that jurors had in understanding the instructions. This is perhaps the one research finding reported here that does not confirm our intuition. In some cases, adherence to the suggestion produces awkward-sounding sentences. We do not argue that the relative pronoun or auxiliary verb should be included if awkwardness will result. But the research finding seems to be well grounded, and we believe it deserves attention in cases in which it does not produce evident awkwardness.

In the examples below, relative pronouns and auxiliary verbs that did not appear in the original have been added in brackets.

Example 1

As stated earlier, it is your duty to determine the facts, and in so doing you must consider only the evidence [that] I have admitted in the case.

Example 2

The defendant is not on trial for any act or conduct [that was] not alleged in the indictment (information).

The Charrow research identified double negations as a particularly important source of juror confusion. They can often be avoided by using the word "only." The second of the examples given below is to be preferred over the first on that ground.

Example 1

The defendant is not on trial for any act or conduct not alleged in the indictment (information).

Example 2

The defendant is charged only with filing an income tax return on behalf of X Corporation which he knew to be false, as set out in the indictment. He is not charged with any other offense.

Suggestion 7. Use a concrete style rather than an abstract one.

The research indicates that instructions that are concrete and specific are easier to understand than those that are couched in generalizations and that rely upon the jurors to apply the generalizations to the particular task that they have to perform. It is better to identify particular witnesses as having certain characteristics than to talk abstractly about witnesses who have those characteristics. It is better to speak to the jury in the second person than to talk abstractly about the decision to be made.

Example 1 below is highly abstract, leaving it to the jury to figure out which witness is being discussed and who is to treat the testimony with caution and care. Example 2 is a very concrete treatment of the same subject. We do not suggest that the average juror would fail to understand example 1 if it were standing alone. We do suggest that the abstract style identified here tends to increase the difficulty of the task of understanding a whole set of instructions.

Other Features

Suggestion 8: Auoid instructing the jury about things they don't need to know.

A surprising number of the instructions that we have reviewed in the course of our work for the Center's committee include discussion of matters that do not seem appropriate for jury consideration. It is apparently customary, for example, to distinguish carefully between direct evidence and circumstantial evidence before telling the jury that the distinction is irrelevant to their consideration of the evidence. Many instructions include discussion of evidentiary rules that seems more appropriately addressed to the judge than to the jury. While it may not be inherently harmful to inform the jury of an evidentiary rule, instructions Of this type frequently introduce other problem features. In the first example below, for instance, the word "incompetent" is used to mean something other than its most common meaning, and the word "corroborate" is a low-frequency word. The instruction in the second example avoids these problems simply by not talking about admissibility. The third example, a pattern jury instruction printed in its entirety, is offered as an extreme example: It contains no advice to the jury at all.

Example 1

An accomplice does not become incompetent as a witness because of participation in the crime charged. On the contrary, the testimony of one who asserts by his testimony that he is an accomplice, may be received in evidence and considered by the jury, even though not corroborated by other evidence, and given such weight as the jury feels it should have.

Example 2

The testimony of an informer who provides evidence against a defendant for pay, or for immunity from punishment, or for personal advantage or vindication, must be examined and weighed by the jury with greater care than the testimony of an ordinary witness. The jury must determine whether the informer's testimony has been affected by interest, or by prejudice against defendant.

Example 3

Where the true identity of a person is in issue, any proved or admitted fingerprint of this person may be received in evidence to be used as an exemplar or specimen, for comparison with any fingerprint in dispute.

FOOTNOTES:

Footnote 1: See Charrow & Charrow, Making Legal Language Understandable: A Psycholinguistic Study of Jury Instructions, 79 Colum.L.Rev. 1306 (1979).

Footnote 2: See Elwork, Sales & Alfini, Juridic Decisions: In Ignorance of the Law or in Light of It, 1 Law & Human Behavior 163 (1977).

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988

By Allan Lind and Anthony Partridge

This appendix compares four of the Federal Judicial Center committee's instructions with other pattern instructions covering substantially the same subject matter. For each instruction, we show the total number of words, the Flesch "readability" score, and the number of uncommon words used.

The "readability" score is an index designed by Dr. Rudolph Flesch to test written materials for ease of comprehension.[Footnote 1] It combines into a single score two measures that are associated with ease of comprehension: the average number of syllables per word and the proportion of words that are concrete as contrasted with abstract. The test does not require much subjective judgment by the person doing the scoring and may therefore be said to be relatively objective. As with any test of this nature, however, it provides an indirect and imperfect measure of comprehensibility. We would generally expect improvement in comprehensibility to be accompanied by improvement in Flesch scores, but it should not be assumed that instructions with higher Flesch scores are invariably more understandable than instructions with lower scores.

Words identified as "uncommon" are those reported by Thorndike and Lorge to be used less frequently than ten times per million words of writing. [Footnote 2] The count of uncommon words is unduplicated: A word is counted only once even if it is used more than once in a particular instruction.

The instructions to be compared were chosen by us to represent a variety of types of instruction, but they are in no sense a statistical cross section. The general instruction about credibility of witnesses is characterized, in all of the collections, by a high level of abstraction; by its nature, it cannot focus on particular witnesses or particular testimony. The instruction on the treatment of evidence of the defendant's good character is a more targeted instruction about the way in which a particular kind of evidence should be considered. The accomplice instruction is an example of a cautionary instruction about a particular witness or witnesses. The instruction about the defendant's prior convictions is an example of an instruction limiting the purpose for which certain evidence can be considered.

Comparison of the pattern instructions required that decisions be made in some cases about optional language. Also, in two instances in which a collection of instructions included a separate instruction to the effect that the weight of the evidence is not necessarily determined by the number of witnesses testifying on one side, that instruction was treated for purposes of the comparisons as part of the general instruction on evaluating witnesses' testimony.

EVALUATION OF TESTIMONY; CREDIBILITY OF WITNESSES

NOTE: The instruction compared are Devitt & Blackmar §§ 17.01, 17.20; Fifth Circuit No B6; Seventh Circuit (1980) No. 1.02; D.C. Bar Nos. 2.11, 2.13; FJC Committee No. 23. See p. xv for full citations to the collections.

EVIDENCE OF DEFENDANT’S GOOD CHARACTER

NOTE: The instruction compared are Devitt & Blackmar § 15.25; Fifth Circuit No. S3; Seventh Circuit (1980) No. 3.15; D.C. Bar Nol 2.42; FJC Committee No. 51. See p. xv for full citations to the collections.

ACCOMPLICE TESTIMONY

NOTE: The instructions compared are Devitt & Blackmar § 17.06; Fifth Circuit No. S2B; Seventh Circuit (1980) No. 3.22; D.C. Bar No. 2.22; FJC Committee No. 24. See p. xv for full citation to the collection.

IMPEACHMENT OF DEFENDANT BY PRIOR CONVICTION

NOTE: The instructions compared are Devitt & Blackmar § 17.13; Fifth Circuit No. B7F; Seventh Circuit (1980) No. 3.16; D.C. Bar No. 1.08; FJC Committee No. 41. See p. xv for full citation to the collection.

* Actually longer because blanks for offense description were not counted

FOOTNOTES:

Footnote 1:   Flesch, Measuring the Level of Abstraction, 34 J. Applied Psychology 384 (1950).

Footnote 2: A discussion of the Thorndike and Lorge frequency list and its limitations is included in appendix A. In that list, the observed frequency of regular plurals, comparatives, superlatives, and verb forms is not reported separately; rather, the observed frequency of these forms is included in the reported frequencies of their root words. Also, the frequency of adverbs ending in "ly" is reported separately only if the adverb occurs at least once per million words of writing. In determining whether to classify words as uncommon, we have modified the frequency reported in Thorndike and Lorge by combining separately reported frequencies of "-ly" adverbs and their root words and "-ness" nouns and their root words.