Judges may be doing more harm than good when they give instructions to juries. It seems the jurors just don't understand.
Research on "Language and the Criminal Law" presented yesterday at the American Association for the Advancement of Science meeting in San Francisco illustrated the gap between judge and jury.
"It is the judge's role to determine what the relevant law is and to communicate the law to the jurors," explained Prof Peter Tiersma of Loyola Law School in California.
"The jury is then expected to apply the law to the facts and reach a verdict. Unfortunately there is mounting evidence that jurors often do not understand their instructions very well. In a system that values the rule of law these findings are profoundly disturbing," he said.
Guilty verdicts must only be given after clear evidence that well-defined rules were violated by the defendant. "The judge's instructions all too often fail to adequately explain these requirements to the jurors," Prof Tiersma suggested.
He mentioned work by Robert and Veda Charrow in which 14 taped jury instructions were played to test subjects. The subjects were asked to paraphrase the instructions, but only about a half to two-thirds of the information sank in.
When the Charrows revised the instructions to take out the legal language, the test subjects provided much better results.
Judges countered by claiming that the test jurors did not have the benefit of watching the trial, Prof Tiersma said. But another research team, Aniram Elwork, Bruce Sales and James Alfini, conducted a test by playing the full videotape of a trial to volunteer jurors.
Different groups were asked to watch the tape: one heard the original jury instructions and the other instructions in plain language. The researchers found that those who heard the judge's original instructions got 40 per cent of the detail correct while the other group got 78 per cent correct.
The following were real responses from Washington State judges to jury requests, Prof Tiersma said:
"No additional instructions will be given", "Please read the instructions again", "You have received all of the instructions .. . No clarification will be provided."
He mentioned cases where jurors were caught looking up words in dictionaries to improve their understanding of the law. They looked up assault, culpable, inference, malice, murder, premeditate, preponderance, rape, wanton and wilful.
"Technically a jury is not allowed to consult outside sources," Prof Tiersma said. He mentioned reports of a US federal court setting aside the death penalty of a man who had spent 20 years on death row, in part because of evidence that his jury had looked up the words mitigate, extenuate and vindication.