Judicial Instructions (Reisberg, Applied Cognition, ch. 10)

In many countries of the world, court cases are decided by juries, and of course, most jurors are not lawyers, and need to be instructed in the law. This is usually accomplished by the judge providing jury instructions as the last step of the trial - just before the jury begins its deliberation. The instructions in a typical case might include a reminder of the jury's overall task, the exact definition of the crime being considered, the elements that must be proved in order to count a person as guilty of that crime, and so on.

These instructions obviously need to be accurate, and so must capture the precision and exact definitions involved in the law. But the instructions also need to be clear-so that ordinary jurors, often people with just a high school education, can understand and remember the instructions and be guided by the law in their deliberation. It turns out, however, that these two requirements are often in conflict with each other, and sometimes perfectly precise language is not the same as clear and comprehensible language. As a result, judicial instructions are often difficult to understand.

In fact, some studies suggest that over half of judges' instructions are misunderstood by jurors, and, in some cases, less than 10% of the instructions are still remembered by the jurors after a brief delay. The failure to understand instructions can be documented in college students who are given the instructions as part of an experiment, and in actual jurors who hear the instructions as part of a real trial.

What can we do about this? Studies of language processing tell us that people understand more when they participate in a conversation rather than merely hearing a conversation. It is troubling, therefore, that jurors are expected to sit passively as the judge recites the instructions; jurors are almost never allowed to ask questions during the instructions about things they do not understand. And if the jurors realize, during their subsequent discussion, that they didn't understand the instructions, there is often little they can do. Requests for clarification often result in the judge's simply repeating the same words that caused the confusion in the first place.

The instructions themselves are also a problem, but psycholinguistic studies provide guides for how the instructions can be simplified. For example, we know that people generally have an easier time understanding active sentences than passive ones, affirmative sentences rather than negative ones. We also know that sentence understanding often depends on certain strategies (such as minimal attachment); sentences are easier to understand, therefore, if they have a structure that is compatible with these strategies. Using principles such as these, a number of researchers have developed jury instructions that still reflect the law correctly but are much easier to understand. Where does this leave us? It is of paramount importance that jurors understand the law; otherwise, the jury system cannot function correctly. It is therefore worrisome that jury comprehension of their instructions is so limited. But it is encouraging that, using what we know about language processing, we can make easy adjustments to improve the situation markedly.

To learn more about this topic in cognitive psychology and the law:

See, in the textbook chapter, pages 348-352

*Lieberman, J. & Sales, B. (1997). What social science teaches us bout the jury instruction process, Public Policy, and Law, 3, 589-644.

Ellsworth, P. C., & Reifman, A. (2000). Juror comprehension and public policy:
Perceived problems and proposed solutions. Public Policy, and Law, 6(3), 788-821.