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Article Excerpt
INTRODUCTION 1188
I. OVERVIEW OF CRIMINAL JURY INSTRUCTIONS 1193 II. EXTENT OF JUROR CONFUSION 1196 A. Anecdotal Evidence of Juror Confusion 1196 B. Empirical Research on Criminal Juror Confusion 1202 C. Causes of Juror Confusion 1208 III. FLAWS WITH THE CURRENT STANDARD OF REVIEWING JURY COMPREHENSION 1212 A. The Current Standard of Reviewing Jury Comprehension 1212 B. Constitutional Concerns with the Low Standard 1214 IV. OBSTACLES TO REFORM 1216 A. Threat of Reversal on Appeal 1216 B. Judicial Desire to Maintain the Status Quo 1220 C. Lawyers' Resistance to Take the Lead 1221 V. PROPOSAL FOR AMENDING FEDERAL RULE OF CRIMINAL PROCEDURE 30 1222 A. Reflection on the Standard for a Criminal Defendant's Comprehension of a Guilty Plea 1222 B. The Case for Analogous Standards for a Defendant's Decision to Plead and Criminal Jury's Decision to Render a Verdict 1228 C. Proposal to Amend Rule 30 1231 D. How the Amended Rule 30 Would Function in Court 1233 VI. REFORMS THAT WOULD ENHANCE JUROR COMPREHENSION 1235 A. "Plain Language" Instructions 1236 B. Furnish Jurors with Printed Copies of the Instructions During Deliberations 1241 C. Invite Jurors to Ask Clarifying Questions (and Provide Helpful Answers) 1244 D. Extensive Preliminary Instructions 1248 E. Permit Juror Note-Taking 1250 F. "Cheat Sheet" for Reference During the Trial 1251 G. Incorporate Examples in the Instructions 1252 H. Visual Assistance to Accompany the Instructions 1254 I. Allow Jurors to Read Along While Receiving Verbal Charge 1255 J. "Choice of Instruction" Rule 1256 K. Special Instructions on Difficult Issues 1257 CONCLUSION 1258
INTRODUCTION
"The one thing an instruction must do above all else is correctly state the law. This is true regardless of who is capable of understanding it." (1)
The drafters of California's pattern criminal jury instructions made this stunning statement. The unfortunate truth is that jury instructions are written with almost no focus on comprehensibility of such instructions. (2) Another disheartening reality is that the effects of incomprehensible jury instructions are evident. A growing mountain of empirical research is concluding, with shocking accord, (3) that jurors retain alarmingly low comprehension of the most fundamental aspects of their roles. In fact, several studies have discovered that subjects who received no instructions comprehended the law better than subjects who received pattern instructions. (4) These findings call into question the very legitimacy of our criminal justice system. (5) Of greatest concern, scholarly studies and anecdotal evidence suggest that jurors conflate reasonable doubt with the civil standard of preponderance of the evidence. (6) The horrifying implication is that American juries may be depriving defendants of their fundamental due process right to have their guilt proved beyond a reasonable doubt. Conversely, some confused jurors may view the reasonable doubt standard as erecting an unrealistically high burden on the prosecution, perhaps equating the standard to no possible doubt whatsoever. (7) Regardless of whether a jury's confusion serves to benefit or to harm a criminal defendant, the consequence is repugnant because it distorts the constitutional accuracy of our criminal verdicts. (8)
As contrary as these findings may appear to our sense of criminal justice and fairness, the findings hardly should come as a surprise in light of the reality of many contemporary courtrooms. Jurors often are expected to decipher complex and lengthy instructions replete with obscure legal jargon. In this milieu, adequate juror comprehension is unattainable. The more complicated instructions often perplex lawyers and judges; the instructions might as well be written in a foreign language for many jurors. (9) In fact, many legal writing professors view pattern instructions as such the paradigm of literary perplexity that they have their students analyze and rewrite the instructions to develop their writing skills. (10)
To say this evidence of rampant juror confusion should spark concern is a monumental understatement. Few constitutional safeguards stand more axiomatic to the American system of justice than the criminal trial jury. (11) Both Article III and the Sixth Amendment guarantee all criminal defendants the right to trial by a jury of their peers. (12) The virtues of the criminal trial jury are many. Jury trials seek to assure fairness by empowering lay persons, rather than the government, to determine the fate of criminal defendants. (13) In this capacity, jurors function as representatives of community norms, not only weighing evidence and making factual inferences, but also applying the relevant law as explained by the judge. (14) The result is the formidable task of expressing the community's sense of justice in complex moral and ethical issues, thereby adding legitimacy to the judicial process. (15) For a criminal jury to achieve these virtuous ends, it is apodictic that jurors must first understand their jobs. After all, how can a juror properly apply the law to the facts without comprehending the relevant law and the appropriate means of application? (16) This concern is intensified by the evidence that jurors frequently misunderstand our Constitution's most essential due process guarantee--the prosecution's burden of proof beyond a reasonable doubt.
This Article contemplates how to resolve the crisis of low juror comprehension of jury instructions. The overwhelming evidence in this area makes it difficult to dispute that many jurors lack adequate comprehension of their duties. The relevant question then becomes what, if anything, can be done to solve the problem? The potential for improving jury comprehension exists, ranging from the use of simpler language to procedural reforms during a trial. The purpose of this Article is not merely to brainstorm a laundry list of possible reforms. Much brainstorming has been done elsewhere. Rather, in the pages that follow, this Article ponders how to induce trial judges to implement reform.
Notwithstanding ample scholarship proposing specific reforms and empirical studies suggesting their efficacy in aiding juror comprehension, few courts have undertaken aggressive efforts to ameliorate juror confusion. In large part, this judicial reluctance to reform stems from the perception that any deviation from the status quo entails seemingly unnecessary and imprudent risks. Trials resolved by instructions that drift, even just slightly, from the strict letter of the law invite appellate reversal. To avoid this fate, judges frequently rely on accepted standard instructions or quote the exact language of pattern instructions, statutes, or appellate court opinions. Although marred with arcane legalese, such instructions receive appellate endorsement, thus evading appellate scrutiny. Coupled with the fear of reversal is a denial by many trial judges that juror confusion exists. Judges who perceive the current level of juror comprehension as acceptable would likely consider a bold reform effort pointless.
Additional obstacles arise from the inadequate standard of reviewing juror comprehension. While the language of jury instructions receives great scrutiny, appellate courts largely ignore comprehension of the instructions. Appellate courts afford trial judges significant deference in this area, operating under the presumption that jurors understand the law, provided it is explained with legal accuracy. In fact, this presumption endures even if jurors demonstrate clear confusion by explicitly seeking clarification of an instruction. The United States Supreme Court demonstrated the disturbingly inadequate attention paid to juror comprehension in its recent decision, Weeks v. Angelone. (17) In Weeks, the jury in the penalty phase of a capital murder conviction requested clarification on a particular instruction. Instead of providing additional clarification, the judge merely reread the troubling instructions verbatim. The Supreme Court held this response to be sufficient, reasoning that the jury is presumed to understand the instructions and the judge's answer to any questions. (18) As Justice Stevens forcibly argued in his dissent, however, the fact that the jurors asked a question demonstrated virtually certain confusion (19) and should have overcome automatically any presumption of jury comprehension. (20) With appellate courts embracing a strong presumption of juror comprehension, trial judges have scant incentive to concentrate on clarity, resulting in a steadfast preoccupation with the legal precision of the instructions.
In light of these institutional impediments, effective reform may have to be extrajudicial. (21) This Article argues that the solution lies in the current rule of criminal procedure governing jury instructions. The current text of that rule, Federal Rule of Criminal Procedure 30, does little to guarantee juror comprehension. (22) This Article proposes amending Rule 30 to incorporate language specifically targeted at ensuring juror comprehension. For guidance, this Article considers the standards governing valid guilty pleas, articulated in Federal Rule of Criminal Procedure 11. A defendant's decision to plead guilty and the jury's verdict share fundamental constitutional similarities. Both decisions are grounded in due process considerations, represent the ultimate determination of a defendant's guilt, and may result in the loss of a person's constitutional rights. The main difference lies in the decisionmaker charged with determining guilt. Consequently, due process demands that both a jury's verdict and a defendant's decision to plead guilty are knowing and voluntary. Despite these similarities, however, Rule 30 and Rule 11(c) prescribe disparate safeguards to ensure due process. Rule 11(c) requires an affirmative effort by the judge, in the form of a colloquy with the defendant, to guarantee that the plea is voluntary and intelligent. Rule 30 articulates no analogous safeguards. The premise of this Article is that the due process similarities between guilty pleas and criminal jury verdicts compel similar constitutional procedures to ensure adequate knowledge and voluntariness. Therefore, this Article advocates amending Rule 30 to incorporate language similar to Rule 11. In addition, although this Article focuses on the Federal Rules of Criminal Procedure, these reforms can and should be adopted by the states (23) to amend their counterparts to Rule 30. (24)
This Article tackles the problem of jury comprehension in the following manner: Part I begins with a concise procedural introduction to the instructions jurors receive at various stages of the trial. Part II details the extent of jury confusion, presenting anecdotal evidence from actual trials, reviewing empirical research on juror comprehension, and attempting to explain the causes of confusion. Part III makes the constitutional case for reform. The inadequacy of the current standard of review of juror comprehension, coupled with overwhelming evidence of juror confusion, gives rise to serious due process concerns because of the danger of criminal verdicts resting on unconstitutional determinations of guilt.
Despite these serious constitutional concerns, courts have made minimal efforts to enact reform. Part IV explains the most likely causes of judicial resistance to reform. Many judges either refuse to acknowledge the severity of juror confusion or are deterred from experimenting with reform out of fear of appellate reversal. Concluding that these institutional impediments stand in the way of judicially-initiated reform, Part V looks to extrajudicial channels. In particular, Part V assesses the constitutional safeguards for a valid guilty plea and maintains that due process demands that jury verdicts share analogous safeguards. This Article therefore proposes amending Rule 30 to incorporate language assuring similar due process protections as Rule 11(c). This Article also tackles the real world implications of this proposal in Part V by envisioning how the amended Rule 30 would play out in American courtrooms.
This Article concludes by asking the next logical question: "What, if anything, can be done to improve juror comprehension?" Would amending Rule 11 be a fruitless theoretical exercise, or do actual reforms exist that could enhance juror comprehension? Part VI explores several possible reforms and, where possible, offers evidence of the success of these reforms. Whereas the most obvious reform is, of course, rewriting the instructions with language that jurors can more readily comprehend, several subtler reforms exist. More importantly, compelling evidence suggests that these reforms can go a long way toward improving juror comprehension.
I. OVERVIEW OF CRIMINAL JURY INSTRUCTIONS
As early as 1895, the Supreme Court established that a trial judge's role in instructing a jury is to direct the application of the law, stated accurately and correctly. (25) Juries receive instructions at various stages of the trial. After jury selection and before opening statements, judges usually provide the jury with preliminary instructions on the law. (26) Although the extent and detail of preliminary instructions varies considerably, (27) their basic purpose is to orient the jurors to their roles and prepare jurors for what to expect during the trial. (28) This orientation typically entails explaining the jurors' duties to follow the law, to determine the facts, to assess witness credibility, and to apply the law to the facts. (29) In addition, judges often advise jurors on proper conduct during recesses, such as refraining from discussing the case among themselves or with others, from visiting a scene, and from performing any independent research. (30) Some judges also use preliminary instructions to explain basic evidentiary matters, such as informing the jury that pronouncements by the attorneys, whether during opening statement, closing arguments, or objections, are not evidence to be used in the jurors' deliberations. (31) Moreover, in recent years, some judges have begun issuing preliminary instructions that summarize the pleadings and instruct the jury on the applicable substantive law. (32)
Throughout the trial, judges deliver evidentiary instructions that explicate proper consideration of particular pieces of evidence. (33) For example, judges may instruct jurors to disregard testimony from a witness if the judge has sustained an objection in response to the testimony. Limited admissibility also arises in trials involving multiple defendants when certain evidence is relevant only to certain defendants. (34) Moreover, judges often admit evidence for a specific purpose, such as "prior bad acts" evidence under Rule 404(b). (35) Also common are cautionary instructions to inform jurors that certain materials, such as transcripts of taped conversations, are not evidence jurors may consider during deliberation. (36) Limited use instructions further proscribe improper consideration of hearsay evidence. Judges commonly instruct jurors not to consider an out-of-court statement for the truth of the matter asserted therein, but rather for the fact that the statement was uttered. (37) In addition, statements made for medical diagnosis are admissible under Rule 803(4) normally only to show the injuries suffered and how they were suffered, but not to prove liability. (38) The rationale of the medical diagnosis exception is that persons possess selfish motivation to provide truthful information to ensure proper medical care, (39) but lack such a motive to be truthful as to the manner in which the injury occurred. (40) An evidentiary instruction issued contemporaneously with the presentation of testimony minimizes the danger that jurors will use the evidence for improper purposes.
The most significant instructions are the "substantive law instructions" that the judge delivers at the end of the trial, either before or after closing arguments. (41) Substantive law instructions set forth the specific criminal charges, the mens rea necessary for conviction, lesser-included offenses, affirmative defenses, the presumption of innocence, and definitions of other important legal terms that arise in the case. (42) The substantive law instructions often reiterate important evidentiary instructions, particularly as to the limited admissibility of certain evidence. In federal criminal trials, Federal Rule of Criminal Procedure 30 establishes the requirements for substantive jury instructions. (43) Rule 30 grants the judge discretion to issue the instructions either before or after the arguments are completed or at both times. (44) In addition, judges are required to provide both parties with the opportunity to file in writing proposed instructions with the judge, copies of which must be furnished to their adversaries. (45) The court must inform both sides of its actions with regard to the parties' requests prior to closing arguments. (46) If any party objects to the judge's instructions, that objection must be made prior to deliberations. (47) State rules of criminal procedure commonly contain similar provisions governing criminal jury instructions. (48) The specific procedures for delivering instructions, however, vary greatly among jurisdictions and even among judges within the same court. (49)
Although many judges are willing to use instructions proposed by counsel, lawyers pay surprisingly scant attention to drafting proposed instructions. United States District Court Judge G. Ross Anderson considers the drafting and submitting of jury instructions to be the "most neglected part of preparing for trial." (50) Even though the charge is "one of the most important aspects of the trial," Judge Anderson notes that many lawyers fail to draft proposed instructions. (51) When attorneys neglect to submit viable instructions, judges, faced with their duty to maintain a faithful commitment to the law, inevitably rely on pattern instructions and verbatim language from statutes and appellate opinions. (52)
II. EXTENT OF JUROR CONFUSION
Before contemplating possible reform, the first question, of course, is whether the need for reform even exists. Part II reviews evidence, in the form of both anecdotal evidence and empirical studies, suggesting that jury comprehension is disturbingly low. This review indicates particularly severe problems surrounding the comprehension of some of the most critical components of criminal justice such as the burden of proof and the fundamental elements of a crime. In addition, Part II identifies the most problematic causes of juror confusion in contemporary courtrooms.
A. Anecdotal Evidence of Juror Confusion
Institutional rules preventing inquiry into jury deliberations impede our ability to amass extensive anecdotal evidence of juror confusion. The near-universal and well-established common law rule "flatly prohibited the admission of juror testimony to impeach a jury verdict." (53) Today, Federal Rule of Evidence 606(b) (54) and its state counterparts (55) preclude jurors from testifying to the conduct of deliberations, absent outside interference, thereby significantly restricting our ability to glance into the comprehension of jury instructions by actual jurors. (56) Rule 606(b) permits a juror to testify only on "whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror." (57) Courts have construed the rule's "any outside influence" exception very narrowly. For instance, in Tanner v. United States, the Supreme Court held that admissions of juror alcohol and drug use during the trial did not constitute an "outside influence" that warranted a Rule 606(b) evidentiary hearing. (58)
Even with these juridical impediments, however, cases abound suggesting jurors fail to comprehend basic legal concepts that were critical to a just resolution of the case. Jurors have conflated the civil standard of "preponderance of the evidence" with the criminal standard of "beyond a reasonable doubt" (59) and have misconstrued the concept of "proximate cause." (60) Further, there is evidence that some jurors changed their votes after other jurors articulated erroneous understandings of the law. (61) This section does not attempt to approach an exhaustive review of all such instances of confusion. Rather, its purpose is to show that the conclusions of the empirical studies discussed shortly have real world support. (62)
Most relevant to this Article are instances when jurors in criminal trials appeared to misunderstand the requirements for a criminal conviction. Inconsistent criminal verdicts provide particularly compelling evidence suggesting juror confusion as to the crime charged. (63) The Supreme Court handled such verdict inconsistency in United States v. Powell. (64) The jury in Powell acquitted the defendant of conspiracy to knowingly and intentionally possess with intent to distribute and of possession of a specific quantity of cocaine with intent to distribute, yet convicted the defendant of the compound offenses of using the telephone in order to commit and facilitate conspiracy to possess cocaine with intent to distribute and possession of cocaine with intent to distribute. (65) On appeal, the defendant correctly observed that the verdict was logically inconsistent because "proof that she had conspired to possess cocaine with intent to distribute" or actually possessed cocaine was an element of the telephone use convictions. (66) The Ninth Circuit agreed, holding that reversal was required because the evidence failed to support the Government's theory for why the verdict was consistent. (67)
The Supreme Court, however, disagreed and reinstated the conviction, notwithstanding the indisputably inconsistent verdict. Perhaps most shockingly, the Court willingly accepted inconsistent criminal verdicts. Quoting Justice Holmes, the Court stated, "Consistency in the verdict is not necessary." (68) The Court even acknowledged that "inconsistent verdicts ... present a situation where `error,' in the sense that the jury has not followed the court's instructions, most certainly has occurred.... (69) Yet, because "it is unclear whose ox has been gored," (70) referring to either the defendant's or the Government's, the Court "reject[ed], as imprudent and unworkable, a rule that would allow criminal defendants to challenge inconsistent verdicts on the ground that in their case the verdict was not the product of lenity, but of some error that worked against them." (71) The Court rejected such a rule, in part, because it would entail inquiring into the jury's deliberations in a manner that courts should avoid. (72)
The District of Columbia Court of Appeals reversed an inconsistent verdict in Whitaker v. United States, (73) concluding that the jury was clearly confused as to the elements of the crimes charged. The jury in Whitaker submitted successive notes to the trial judge indicating "it was ready to return a verdict which would be logically irreconcilable with his instructions." (74) The jury ultimately rendered an inconsistent verdict, finding the defendant guilty of the compound offense, but not of the predicate offense. (75) This verdict "could not be reached logically or in conformity with the evidence." (76) The court held that, although decisions regarding reinstruction of the jury are in the trial court's discretion, "[w]here a jury has demonstrated confusion, however, the trial judge may not allow that confusion to continue, but must make an appropriate and effective response." (77) Because of the judge's failure to resolve this confusion, the District of Columbia Court of Appeals reversed the conviction. (78)
In Zeledon v. United States, (79) the jurors were confused as to the meaning of "serious bodily injury," a phrase that may not seem complicated to persons familiar with the law. The defendant in Zeledon was charged with aggravated assault while armed and assault with a dangerous weapon. (80) The former offense required proof of "serious bodily injury." (81) The trial judge, however, failed to define "serious bodily injury" in her jury charge, reasoning that the term "has been around as a jury question for decades." (82) Clearly, the phrase alone provided insufficient guidance for the jury, as the jurors, soon after commencing deliberations, submitted a note asking: "Is there a legal definition or instruction concerning what constitutes serious bodily injury or is the jury to decide what qualifies as serious?" (83) Despite this request for clarification, the judge responded, "[b]ottom line, ladies and gentlemen, the jury is to decide what qualifies as serious." (84) The District of Columbia Court of Appeals found this response insufficient, reversing the aggravated assault conviction and remanding for a new trial. (85) After finding that defense counsel properly preserved this issue for appellate review by requesting a definition of "serious bodily injury," (86) the court held that the failure to instruct was error and not harmless. (87)
Moreover, jurors in several civil trials exhibited confusion over whether to apply the criminal burden of proof. During jury deliberations in Compton v. Henrie, (88) a civil trial involving personal injuries and property loss arising from a truck accident, at least one juror conflated the civil standard of "preponderance of the evidence" with the criminal standard of "beyond a reasonable doubt." Despite an accurate articulation of the preponderance standard in the jury charge, one juror informed the others throughout deliberations that "the defendant was innocent until proven without a reasonable doubt that he was guilty." (89) That juror later testified that, to him, "`from a preponderance of the evidence, based on the credible testimony,' has the same type of implication as proven guilty or beyond a reasonable doubt." (90) Even more surprising, however, is that the Texas Supreme Court ignored harm caused by this blatant miscomprehension of the law. (91) The court held that the "statements amounted to nothing more than a misinterpretation of the court's charge; and were, consequently, not misconduct." (92)
The jurors in Whited v. Powell (93) also appeared to conflate the civil and criminal standards of proof. At issue was a wrongful death suit arising from a car accident. During deliberations, one juror lobbied against reaching a deliberate misconduct verdict, arguing "it will be saying this boy is the same as a murderer. I won't vote to make a criminal of the boy." (94) In response to this statement, at least one other juror changed his vote in favor of the defendant. (95) Consequently, the defendant was found not to be liable. The Court of Civil Appeals reversed the trial verdict, holding that, in light of the whole record, "injury probably resulted to appellants from all such [juror] misconduct." (96) The Texas Supreme Court, however, reversed the intermediate appellate court and reinstated the trial judgment, despite acknowledging that the juror's statement demonstrated an "express misconstruction of the court's charge." (97) The court willingly accepted the reality of jury confusion, conceding, "it would be most unrealistic to expect that all members of the jury as ordinary laymen would thoroughly understand every portion of a complicated charge." (98) The court added, "[i]t is reasonable to assume that one or more of the jurors will frequently misunderstand the meaning of an issue or definition, and will express an erroneous interpretation to the other members of the jury." (99) The court further observed that if such misconstructions were grounds for new trials, "[m]ost of our jury verdicts would be of little value." (100)
Additional examples of civil trial juror confusion provide further insight into the overall problem. For instance, the Appellate Division of the New York Supreme Court also tolerated confusion concerning civil causation in Moisakis v. Allied Building Products Corporation. (101) Moisakis involved a personal injury action in which the jury returned a verdict in favor of the defendants. (102) The judge's polling after the verdict left little doubt that the jury was perplexed on the meaning of "substantial factor." When asked if he was confused, one juror responded, "Well, I didn't understood [sic] the whole thing. I didn't understood [sic] after we talk [sic] it over and come to an agreement." (103) Another juror explained that difficulty arose in determining whether the party was "substantially liable," informing the judge, "`Substantial' threw us off a bit. We thought the question was substantially, meaning 100 percent, but it wasn't that way. So that was that mistake we all agreed to that [sic]." (104) The foreman concurred, "The word `substantial' threw most of us off. We didn't understand the word substantial." (105) When the judge later inquired as to a particular answer on the verdict form, a juror again explained that it was the result of confusion surrounding the meaning of substantial. The exchange proceeded as follows:
The Court: So let me ask you this, why was your answer no in the second one? Juror Number 4: We misinterpreted the second one. The word "substantial" threw us off. We were fighting about the meaning of "substantial." We should have sent for a dictionary. (106)
The trial court even acknowledged that this confusion likely affected the verdict:
And it's an unfortunate--this is a very unfortunate situation, and I sympathize with the plaintiffs in this case because obviously, it seems to me that the jurors misunderstood the question of substantial cause, proximate cause; there's no doubt about it. (107)
Despite this conclusion, however, the trial judge denied the plaintiffs' motion to set aside the verdict. (108) Moreover, the Appellate Division upheld the jury verdict, expressing concerns that engaging in post-trial inquiry into the jury verdict "would result not only in the posttrial harassing of jurors but also the instability of verdicts." (109)
The Superior Court of Pennsylvania, in Drum v. Shaull Equipment and Supply Co., (110) vacated and remanded the verdict of a jury that clearly wrestled with great confusion during deliberations. After requesting to see the written charge, which was denied, and after requesting to be recharged on negligence and contributory negligence, the jury returned an inconsistent verdict. (111) The judge instructed the jury to retire for redeliberation to clear up the confusion. (112) When the judge polled the jury following its second verdict, several jurors provided answers inconsistent with the verdict. (113) In addition, the jury foreman informed the court that some of the jurors were confused about the answer. The judge sent the jury back "to get the answer straight" and, when it returned, the polling on the first issue conformed to the written interrogatories. (114) When the jury was polled on the second question, a juror again voiced confusion. The judge then asked, "Was your vote totalled [sic] incorrectly by the Foreman or are you confused when I'm asking you orally what your vote was?" The juror responded, "I was [sic] confused now." (115) The Superior Court concluded that "[j]uror confusion was apparent almost from the outset of the jury's deliberations." (116) Moreover, "[I]f a jury clearly is confused, and the trial court cannot rectify the confusion by appropriate instructions, a new trial is warranted." (117)
B. Empirical Research on Criminal Juror Confusion
As a result of the institutional impediments to inquiring into jury deliberations, the primary evidence of juror confusion comes from an abundance of empirical research in this area. Scholars began to explore juror confusion in the 1970s, laying the groundwork for a wave of scholarship attempting to pinpoint the extent and source of juror confusion. (118) Although their conclusions differ on the magnitude of the problem, almost all studies concur that a very real problem exists. (119) This Section reviews the most influential empirical studies on criminal juror comprehension to identify the severity of the problem and to lay a foundation for reform. (120)
David U. Strawn and Raymond W. Buchanan conducted the first major study on juror comprehension in 1975 by comparing comprehension of subjects who received Florida's pattern criminal jury instructions to subjects who did not receive the instructions. (121) The study concluded that, although the instructions improved comprehension to some extent, the instructed jurors still missed twenty-seven percent of the test items and failed to show any improved comprehension for four of nine crucial content areas addressed by the instruction. (122) For example, despite the instruction that the defendant must be proved guilty beyond a reasonable doubt, only half of the jurors understood that the defendant did not have to present evidence establishing his innocence. (123) In addition, forty-three percent of the subjects blatantly misunderstood the instruction on circumstantial evidence, erroneously believing that circumstantial evidence held no probative value. (124)
Several other researchers have followed Strawn and Buchanan's groundbreaking work. In fact, some studies lead us to question whether pattern instructions enhance comprehension at all. In 1977, Professors Amiram Elwork, Bruce D. Sales and James J. Alfini studied Michigan's civil pattern jury instructions on negligence. (125) The authors found no reliable differences between a group receiving no instructions and a group receiving the pattern instructions, concluding that the standard instructions were "about as effective in helping jurors understand the laws as the presentation of no instructions at all." (126) Elwork, Sales, and Alfini built upon their 1977 study with their 1982 book, Making Jury Instructions Understandable, a comprehensive study on jury comprehension in criminal trials. (127) Employing a number of tests to assess juror comprehension, the authors again reached the shocking conclusion that subjects receiving pattern instructions demonstrated inferior comprehension than subjects receiving no instructions. (128) The authors concluded that prior to deliberating on a defendant's guilt, the average jury understands only about half of the legal instructions presented by the judge. (129) These observations led the authors to the ominous conclusion that many verdicts in criminal trials result from misunderstandings of the law. (130)
Professors Geoffrey P. Kramer and Dorean M. Koenig also concluded that Michigan's pattern instructions for criminal trials inadequately assist juror comprehension of critical criminal law issues. (131) The authors tested likely problematic instructions, based on a 1987 study of Michigan judges, by comparing the responses of subjects who received a particular standard instruction with the responses of subjects who did not receive any instruction. (132) The subjects reflected representative cross-sections of gender, (133) age, (134) and educational level. (135) Kramer and Koenig's findings also were disheartening. The Professors' subjects demonstrated poor comprehension of the reasonable doubt standard, with particular confusion concerning the difference between reasonable doubt and any doubt (136) and whether jurors are allowed to draw inferences from the evidence in order to reach a verdict. (137) In fact, these two concepts were better understood by the uninstructed subjects than by the instructed subjects. (138) Moreover, although the study also found relatively high comprehension of witness credibility, comprehension was lower for the group receiving the instruction than for the uninstructed group. (139) The study found other areas where comprehension for both groups not only was low, but also decreased among the group that received jury instructions, including the requirements of first degree felony murder, (140) the meaning of the specific intent requirement for certain crimes, (141) and the requirements for an assault conviction. (142) From these findings, Kramer and Koenig concluded that "jury instructions are often lost on jurors, and can sometimes even backfire." (143) A 1989 study by Professor Phoebe C. Ellsworth unearthed flaws in California jury instructions. (144) Two hundred sixteen subjects viewed a two-and-one-half-hour videotape of a mock trial, covering all phases including the instructions. (145) After watching a mock trial, the subjects were divided into twelve-person juries for deliberations. (146) Ellsworth videotaped these deliberations and, upon their conclusions, distributed questionnaires testing juror comprehension of certain factual and legal aspects. (147) Although the jurors "sort[ed] out the factual issues fairly well," (148) they encountered significant difficulty with the legal questions. (149) Despite using a standard characterized as "lenient" and awarding credit for partial accuracy, Ellsworth concluded that the subjects made correct references to the law only fifty-one percent of the time.(150) The subjects made unclear references to the law twenty-eight percent of the time and definitely incorrect references twenty-one percent of the time. (151) Deliberations failed to abet comprehension. The jurors shifted from a correct view of the law to an incorrect one as frequently as vice versa. (152) The questionnaires yielded similar results. On average, the jurors answered correctly only 11.7 percent of the true-false questions regarding the legal elements from the instructions. (153)
One shortcoming of Ellsworth's 1989 study is the artificial nature of the test. Therefore, Ellsworth followed up her previous research with a study, conducted in conjunction with Alan Riefman and Spencer Gusick, of actual jurors who served in Michigan trials (154) in an effort "to capture the atmosphere of a real trial in a laboratory setting." (155) The authors sent 558 questionnaires to individuals who were summoned for jury duty, 140 of whom had actually served on a jury, and received 224 responses. (156) Once again, this study revealed poor comprehension of the instructions. Jurors "responded correctly to questions of law less than half the time" and the instructions failed to assist comprehension of the substantive law. (157) The authors acknowledged that the time...
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