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5.1 Making Jury Instructions Understandable

    5.1.1 Making Jury Instructions Understandable: General Principles
    5.1.2 Instructions Must Satisfy Two Audiences
    5.1.3 Jurors Are Prone To Misunderstand Jury Instructions
    5.1.4 Increasing Juror Comprehension: Include General Concept First And Then Break Down Components
    5.1.5 Determining An Instruction's "Readability" Score
    5.1.6 Empirical Challenge To Confusing Jury Instruction Language
    5.1.7 Juror Misunderstanding Of Instructions In Capital Cases Has Been Demonstrated

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PRACTICE NOTE: "It cannot be overemphasized that instructions should be clear and simple in order to avoid misleading a jury." (People v. Carrasco (CA 1981) 118 CA3d 936, 944 [173 CR 688] [Internal citation and quote marks omitted].) This section discusses ways to make instructions more understandable. It is based upon "Pattern Criminal Jury Instructions" 1988 Report of Subcommittee on Pattern Jury Instructions, Federal Judicial Center (1988) Appendix A and B, pp. 161-76.

    "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." (Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS Appendix A [Suggestions For Improving Juror Understanding Of Instructions] pp. 161-62 (1988).)

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

Synthesizing the work of psycholinguists who have studied juror comprehension of instructions, one commentator offers 10 guidelines for improving instructions:

    "1.    Eliminate nominalizations (making nouns out of verbs) and substitute verb forms; e.g., changing 'an offer of evidence' to items were offered into evidence.

    2.    Replace the prepositional phrase 'as to' with 'about;' e.g., changing 'you must not speculate as to what the answer might have been' to 'you must not speculate about what the answer might have been.'

    3.    Relocate prepositional phrases so they do not interrupt a sentence; e.g., avoiding sentences such as 'proximate cause is a cause which, in a natural and continuous sequence, produces the injury.'

    4.    Replace words that are difficult to understand with simple ones; e.g., changing 'agent's negligence is imputed to plaintiff' to 'agent's negligence transfers to a plaintiff.'

    5.    Avoid multiple negatives in a sentence; e.g., 'innocent misrecollection is not uncommon.'

    6.    Use the active rather than passive voice; e.g., changing 'no emphasis is intended by me' to 'I do not intend to emphasize.'

    7.    Avoid 'whiz' deletions (omitting words 'which is'); e.g., by changing 'statements of counsel' to 'statements which are made by counsel.'

    8.    Reduce long lists of words with similar meanings to only one or two; e.g., shortening 'knowledge, skill, experience, training, or education' to 'training or experience.'

    9.    Organize instructions into meaningful discourse structure that avoid connected unrelated ideas in ways that make them seem related.

    10.    Avoid embedding subordinate clauses in sentences; e.g., 'you must not speculate to be true any insinuation suggested by a questions asked a witness.'"

Tanford, The Law and Psychology of Jury Instructions, 69 Neb.L.Rev 71, 81-82 (1990).

See also generally, NCJIC 305.12.1 [Language/Drafting Of Instructions].

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PRACTICE NOTE: "In drafting a special instruction...it will be necessary to keep two audiences in mind: a glance at either one will counsel caution. The first audience, the jurors, are likely to have some tendency to resist unfamiliar information about a process of every day life in which they feel they are reasonably expert. A certain degree of tact is called for in attempting to supplant their misconceptions -- whether the lawyer is attempting that feat in argument or the judge during his instructions. The second audience, the judge, will have to be persuaded to deliver the instruction in the first place. For this latter audience, the more familiar sounding the instruction, the less it will ring bells warning of reversal." (Loftus & Doyle, Eyewitness Testimony - Civil & Criminal (Lexis, 3rd ed. 1997) § 12-2 (b), p. 362.)

See generally, NCJIC 305.5.2 [Empirical Research].

See also generally, NCJIC 305.12.1 [Language/Drafting Of Instructions].

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PRACTICE NOTE: Empirical studies have tested lay comprehension of pattern jury instructions and found substantial lack of understanding. (See Carrow and Carrow, Making Legal Language Understandable: A Psycho Linguistic Study of Jury Instructions, 79 Colum. L. Rev. 1306 (1979); Elwork, Sales and Alphini, Juridic Decisions: In Ignorance of The Law or In Light of It, 1 Law & Human Behavior 163 (1977); Steele, Walter W. and Thornburg, Elizabeth G., "Jury Instructions: A Persistent Failure To Communicate," Judicare, February-March 1991, American Judicature Society, Chicago, Ill.)

See generally, NCJIC 305.12.1 [Language/Drafting Of Instructions].

See also NCJIC 303.1.5 [Juror Misunderstanding Of Instructions In Death Cases Has Been Demonstrated].

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PRACTICE NOTE: "Psycho linguists have...identified organizational properties of useful instructions which are [less than] obvious. For example, it will be easier for jurors to absorb psychological factors if the instruction is organized 'hierarchically': that is, if the more general concepts are discussed first, and then broken down into components."  (Loftus & Doyle, Eyewitness Testimony - Civil & Criminal (Lexis, 3rd ed. 1997) § 12-2(b) [Drafting Special Instructions] p. 331.)

See generally, NCJIC 305.12.1 [Language/Drafting Of Instructions].

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PRACTICE NOTE: The Federal Juridical Center suggests calculating a "readability" score for testing the ease of comprehension of instructions. (See Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS Appendix B [Comparison Of Selected Instructions From This Collection With Similar Instructions From Other Collections] pg. 172-176 (1988).)  This readability score is based on an index designed by Dr. Rudolph Flesch. (Flesch, Measuring the Level of Abstraction, 34 J. Applied Psychology 384 (1950).) This test combines into a single score two measures that are associated with ease of comprehension: (1) the average number of syllables per word and (2) 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. However, because any such test provides only an indirect and imperfect measure of comprehensive ability, the Federal Judicial Center added the following caveat:

See generally, NCJIC 305.12.1 [Language/Drafting Of Instructions].

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PRACTICE NOTE: Free v. Peters (7th Cir. 1993) 12 F3d 700, 704-06, provides a basis for challenging confusing jury instructions by the use of a jury study conducted by an appropriate expert. In Free, the trial court relied upon such a study to conclude that the instructions given were overly confusing and invalid. Although the Court of Appeals reversed the lower court, it did not rule out the use of an appropriate jury study for jury instruction evaluation. Rather, the Court of Appeal relied on two perceived defects in the study methodology. ( Free,12 F3d at 705.) Presumably, a study which eliminates those defects would be a valid basis upon which to challenge jury instructions as overly confusing. (But see also Gacy v. Welborn (7th Cir. 1993) 994 F2d 305, 309.)

    In the trial courts, however, the tactic could be more fruitful. "Ideally, efforts by lawyers and the experts they consult to improve the wording of instructions should be concentrated at the trial level. For example, ... counsel could submit the pattern instructions or the state's proposed instructions to a linguistic expert for study, and then use the findings to develop and propose an alternative." (BNA Criminal Law Reporter, Special Report, 1991, 48 CR.L. 1418.)

See generally, NCJIC 305.5.2 [Empirical Research].

See also generally, NCJIC 305.12.1 [Language/Drafting Of Instructions].

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
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VOLUME 1 - CHAPTER 5

See generally, NCJIC 305.12.1 [Language/Drafting Of Instructions].