It Looks Like You’re Trying to Instruct a Jury…

Good Morning, Your Honor!

It looks like you’re working on a set of jury instructions. How exciting! Clearly you’re in the midst of a jury trial, and you’re almost ready for the closing arguments. Of course, you’re going to warm up the audience by reading a 60-page packet of jury instructions for about 45 minutes. Although the two lawyers in your chambers would prefer working on their closing arguments to watching you argue with MS Word’s automatic formatting decisions, you and I both know that finishing these instructions in their presence is a much more important use of everyone’s time.

Hey! Why did you close me?! For the past twenty minutes, I have watched you mash the left mouse button in a vain attempt to change the line spacing. You clearly need my help!

Wait! Don’t close me again. Did you know that giving an incorrect instruction is reversible error on appeal? Ha, clearly you knew that; these instructions were written by judges for other judges to read, slowly, repeatedly, in chambers and in open court. Who knows whether the jury will actually understand them? That is clearly not the point. Now kindly move that cursor away and get back to reading. We have lots of agonizing to do while these two lawyers drum their fingers.

It looks like you’re working on the “reasonable doubt” instruction. This whole instruction looks risky to me. Didn’t one court of appeal say that trying to define reasonable doubt is like playing with fire, because any attempt at defining “beyond a reasonable doubt” almost inevitably makes the burden of proof sound lower than it is?

Oh, your added instruction makes everything clear: “Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true.” This won’t be a problem, because it gives no definition whatsoever. How does such a solemn phrase manage to convey absolutely no information? How many of your twelve jurors know what “abiding conviction” means? Do you even know what it means? How does it differ, in substance, from just saying, “proof beyond a reasonable doubt makes you really, really, really sure that this guy is guilty?” Refusing to give any information is a great way to make sure that you don’t give wrong information! Also, I especially like the way it avoids comparing “beyond a reasonable doubt” to the other levels of proof in the legal system:

      Too much information for a jury instruction     

This way, if the defense lawyer actually tries to instruct the jury beyond what you’ve written by contrasting “beyond a reasonable doubt” to other levels of proof, the DA can point out, in his rebuttal argument, that YOUR jury instruction gives NONE of this information. The DA gets to hint that the defense lawyer has pulled all of this information from his rectum, even though the DA knows full well that everything the defense lawyer said was true. I love it when lawyers are sneaky!

A tired-ass “guilt-o-meter” chart that also isn’t in the instruction

Oh, it looks like you’ve moved on to jury instruction #355. “The defendant has an absolute constitutional right not to testify … Do not consider, for any reason at all, the fact that the defendant did not testify.” Hey Judge! Whatever you do, under no circumstances are you to think about a giant squid. You didn’t think of a giant squid just now, did you? I just told you not to! How do you expect this jury to follow an instruction not to think about something that you just made them think about?

Hey! Can’t you see that your hanging indents should be set to 0.38, and not 0.5? Don’t worry; I’ve gone back and changed all of the indents in your document. You’re welcome.

It looks like you’re working on the final pre-deliberation instruction. Do you remember that today is Wednesday? Do you understand that you will likely be giving this instruction on a Thursday afternoon? Do you think it might be worth adding something about not jumping to a verdict on Friday afternoon just to avoid having to come back on Monday? When do we get to the instruction that at least acknowledges the real world and its prejudices? Why do all of these instructions read as though they were penned in a hermetically sealed vacuum by people whose professional and personal identities hinge entirely on the presumption that our system is actually fair? Have none of these people ever served on a jury?

Ok, that’s enough for me. I’m done, Your Honor. Let me know when you need help writing a letter in Times New Roman.

[Clippy and his likenesses remain the property of Microsoft Corporation; clearly no one else wants him.]

Respectfully Submitted,

Norm DeGuerre

25 thoughts on “It Looks Like You’re Trying to Instruct a Jury…

  1. Is there no clarification of ‘beyond reasonable doubt’ in the law? As it stands, it is very vague. Reasonable to whom? By what criteria of reasonableness? Also, from a philosophical perspective, it’s trivially easy to raise reasonable-sounding doubts — or at least doubts that follow from reasonable propositions — for just about any common-sense belief. Hopefully this doesn’t become widely known or we might find people appealing to philosophical skepticism to get out of jury duty.

    1. Click the link that takes you to the reasonable doubt instruction. This is the entirety of legal instruction that juries in California receive on the concept of beyond a reasonable doubt.

      You’re absolutely right that feigned skepticism is a great way to wiggle out of jury duty. But the only reason why this trick works is because the jury selection process seems to have a natural tendency to weed out skeptics. Some are scientists who would not convict someone unless it was caught on tape. Some come from an Eastern theological tradition. All are routinely excused from jury duty, typically by the prosecution.

  2. You sound like me asking my professors if they’d like help correcting their syllabi for errors, as practice for when they try to grade my papers without knowing dick about the English language.

    As always man, great stuff. I learned a lot. Mostly that the law can be a wicked-huge, pain-in-the-ass time-eater.

    I honestly fear that the law is going to get so much more specific, as we cater more and more to stupid, that it will collapse in on itself and become too broad again.

    1. Thank you for reading and for your kind words.

      As fun as it is to complain sometimes, I have to remind myself that it is better for a judge to spend time agonizing over details than to try to administer “swift justice.” “Efficient” justice rarely benefits the accused.

      You’re right in that more explanation can sometimes make things less clear. Unlike state courts, federal courts frown on defining “beyond a reasonable doubt” for that very reason. Knowing when to say more with less is a teaching skill, and not always a legal skill. Clearly, no teachers are consulted during the drafting of jury instructions.

  3. “Hey! Can’t you see that your hanging indents should be set to 0.38, and not 0.5? Don’t worry; I’ve gone back and changed all of the indents in your document. You’re welcome.” Makes me laugh. And then makes me cry. And then makes me wonder what the heck programs the *people who work at Microsoft* use that they could possibly be unaware of how totally broken parts of Word and PowerPoint are.

    Plus there is just NOTHING better than watching someone try to type something inane while you are thinking of all the more productive things you could be doing. Well captured! (Congrats on the Fresh Pressing too)

  4. I hated Clippy too. Never used him, but your article brings to mind comments made by others that maybe a jury of your peers isn’t actually the best thing, since most of us don’t understand the rules and the legalities anyway.

  5. As both a lawyer and one who served on a criminal jury and got stuck trying to explain what “beyond a reasonable doubt” meant (and yes, we went back to the judge for more clarification for the hold out juror who just didn’t get how I could say the guy probably did it but that didn’t mean I could convict), this post was perfect!

  6. Norm, I’ve long wanted to take the entire judicial system to court. Your post nicely outlines why. Trouble is, by nature of its own cumulative head-in-ass design, deciding the rightness of a system that’s supposed to decide the rightness of a decision just sends one down the rabbit hole to a large bottle of alcohol. I admire your heartiness.

    [No doubt you occasionally amuse yourself with the outdated laws that still reside on California’s books: “Fishermen can only keep a giant seabass when it ends up on their line accidentally.” (As opposed to all the other fish who intentionally commit suicide on hooks, I suppose.) (sigh)]

    I’m aware of the grindingly slow pace the current system inflicts upon itself, the financial limitations of those who would benefit most from its reform, and the flat-out junk-food-induced disinterest of the American public in general, but…is there any hope? Is there some sort of unadvertised groundswell among lawyers and others “on the inside” trying to enact efficient reform? Or is the legal system’s down-the-rabbit-hole miasma of contradictions the only thing making it work and keeping it alive in the end?

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