Understandable Jury Instructions

Jury instructions are important - they tell jurors what they're supposed to decide. But many of them are opaque and convoluted.

The typical circumstantial-evidence instruction tends to sound like something written by a German philosopher two centuries ago and then translated word word into English. How many people today talk about “presenting evidence to the senses?” Is that what you do when you smell a rose or, for that matter, when you see someone rob a bank? Also, most people don’t talk much about “drawing inferences,” even though they do so every day.

Peter M. Tiersma, Communicating with Jurors: How to Draft More Understandable Jury Instructions, National Center for State Courts, Williamsburg, VA, 2006 [originally published in 10 Scribes J. Legal Writing 1 (2005–2006)].

Peter Tiersma, who is both a law professor and a linguist, offers suggestions for writing jury instructions in language that is more easily understood (without being inappropriately casual). He illustrates his suggestions by contrasting old model instructions in California (BAJI) with new ones adopted in 2003 (CAJI).

For example, compare the old:

Evidence consists of testimony, writings, material objects or other things presented to the senses and offered to prove whether a fact exists or does not exist.

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.

A factual inference is a deduction that may logically and reasonably be drawn from one or more facts established by the evidence.

It is not necessary that facts be proved by direct evidence. They may be proved also by circumstantial evidence or by a combination of direct and circumstantial evidence. Both direct and circumstantial evidence are acceptable as a means of proof. Neither is entitled to any greater weight than the other.

* * *

with the new:

Evidence can come in many forms. It can be testimony about what someone saw or heard or smelled. It can be an exhibit admitted into evidence. It can be someone’s opinion.

Some evidence proves a fact directly, such as testimony of a witness who saw a jet plane flying across the sky. Some evidence proves a fact indirectly, such as testimony of a witness who saw only the white trail that jet planes often leave. This indirect evidence is sometimes referred to as “circumstantial evidence.” In either instance, the witness’s testimony is evidence that a jet plane flew across the sky.

As far as the law is concerned, it makes no difference whether evidence is direct or indirect. You may choose to believe or disbelieve either kind. Whether it is direct or indirect, you should give every piece of evidence whatever weight you think it deserves.

(All three quotations are from pp. 20-21 of the NCSC booklet.)

Check this out -- it has lots of good tips for effective communication. (The tips can be applied in other contexts, such as writing client letters. And there's no reason not to write clearly even when the intended audience is lawyers and judges who could wade through the legal complexities if they had to. Why make them?)

Filed in: tips, jury-instructions, Tiersma, writing, NCSC