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.]