How Reliable are Jury Verdicts Really?

With Canada’s growing multicultural population, it is becoming increasingly important to find solutions to allow for more effective participation of a wider population in our judicial processes. Currently there is no standard jury charge required for judges to use in a criminal or civil trial (certainly there are standard charges drafted, but these are not mandated). The longer we keep lagging behind other jurisdictions, the more likely our juries are rendering ineffective verdicts. This extends past just the jury charge too.

Legal language, or legalese, is complicated. Decisions turn on the meanings of words. As lawyers spend years indoctrinating themselves with an understanding of legal language, access to justice must then also become about an “outsider” being able to unlock and understand that language to a point that they can effectively participate as well.1 Ultimately that means that legalese is too complicated for the ‘average’ person and something has to change.

While predominantly relevant in criminal cases, jury instructions are given orally and can be problematic for a number of linguistic reasons. Juries are required to take what the judge says for granted, as they are only finders of fact, not law.

In the Canadian justice system, we do not get to contact juries after a decision has been rendered so it becomes impossible to know how information was ultimately interpreted other than what the verdict might suggest. The system assumes that jury members understood their instructions fully in order to discharge their responsibility accurately in the process.2

The importance of jury representativeness has become a frequently discussed topic as of late. Although the underlying rationale is different, the impact that legalese has can prevent jury service from many people who do not speak English or French as their first language. The 2011 Census reported that in Manitoba, more individuals spoke German as their mother tongue than French.3 Not far behind was Tagalog.4 With over 100 languages spoken in Manitoba, it is only reasonable that individuals will vary in their ability to speak either English or French.5 There is also no language testing when jury members are selected rendering it potentially difficult to tell that there is a comprehension issue.

The National Judicial Institute has compiled a set of model jury instructions, which were created by the Canadian Judicial Council’s National Committee on Jury Instructions.6 With respect to understanding the language of the trial, the instruction reads as:

[1] All jurors must be able to read and understand the language that will be used in the trial. In this case, witnesses will testify and others involved in the case will speak in English/French. Documents written in English/French may be made exhibits.

[2] If you have difficulty reading or understanding English/French, please come forward.7

Maybe I am cynical, however I do not feel that it is good enough to expect that “having difficulty” is the appropriate threshold to have. What does that even equate to? If legal language is going to be as complicated it is without any real safeguard for simplicity, even someone who has a command of the language may still not be able to comprehend the proceedings. Efforts are made to distil complicated concepts like medical terminology, however not enough is being done to simplify our arguments to ensure that our audience is following along appropriately.

In one study conducted by Robert and Veda Charrow, the most significant factors that negatively impacted comprehension of a jury instruction were: the use of double or triple negatives in a sentence such as “not to avoid it”, legal jargon such as “credibility” or “deem”, the placement of “if” in a sentence, the use of “as to”, and the use of turning nouns into verbs.8 As part of this study the instructions were then rewritten eliminating the identified comprehension issues and the mean improvement results increased by 41%.9 This shows that legal jargon alone, as is commonly considered to be the culprit to legal understanding, is not the only issue when it comes to comprehension. It also presents that instructions are not written effectively enough with the targeted audience in mind.10

This can impact access to justice once again where complicated language, even despite best efforts, can stand in the way of a jury member’s effective participation never mind the eventual, potentially significant impact that this can have on an accused or complainant.

The impact of a study such as this exposes the frailty of how reliable a verdict can be. The other concern is that there is no real accountability on judges to write an instruction that is comprehensible, as the appeal process relies on arguments of whether it was legally correct, not linguistically coherent.11 Although that may become exposed through the process, it is normally not the primary goal. The legal community generally has been resistant to embrace social scientific evidence and despite the obvious value, steps to modify jury instruction delivery (or any other addresses to a jury), have yet to be mandated in any meaningful way in most jurisdictions.12

That being said, some states such as Michigan, Illinois, and California have made huge advancements in juries comprehending their instructions. In California for instance, there is a strong push to use plain-language jury instructions in all civil and criminal proceedings.13 It took 6 years for California to create it, but the result of their work is a database of pre-approved jury instructions that someone with a grade 10 education should understand.14 One study conducted after the release of the plain-English jury instructions found that comprehension was dramatically improved.15 What is concerning however, is that the study also showed that when compared to the old format, mock jurors were convicting significantly more often with the old instructions than compared with the new instructions.16 The jurors also made “correct” verdicts significantly more with the new instructions.17 This reaffirms the importance of language and the impact it can have on a verdict. In the interest of preventing wrongful convictions, if we want to discourage guilty verdicts where they are not warranted, clearer jury instructions as a start may be the way to do it.

Endnotes

1 William E Conklin, “Access to Justice as Access to a Lawyer’s Language” (1990) 10 Windsor YB Access Just 454 at 462.

2 Robert P Charrow & Veda R Charrow, “Making legal language understandable: A psycholinguistic study of jury instructions” (1979) 79:7 Columbia Law Rev 1306 at 1359.

3 “Population by Mother Tongue”, online: <https://www.gov.mb.ca/jec/invest/busfacts/overviews/d_language.html>.

4 Ibid.

5 Ibid.

6 Canadian Judicial Council’s National Committe on Jury Instructions, “Model Jury Instructions”, online: <https://www.nji-inm.ca/index.cfm/publications/model-jury-instructions/#794B11A5-D8B5-4A30-9A22E1526BC814BD>.

7 Ibid.

8 Charrow & Charrow, supra note 2 at 1321–1325.

9 Ibid at 1331.

10 Ibid at 1359.

11 Ibid.

12 Constance R Lindman, “Sources of judicial distrust of social science evidence: A comparison of social science and jurisprudence” (1988) 64 Ind LJ 755 at 756.

13 James Ward, “California adopts ‘plain-English’ civil jury instructions” (2004) 87:6 Judicature at 300.

14 Ibid at 301.

15 John Coleman, Russ K E Espinoza & Jennifer V Coons, “An Empirical Comparison of the Old and Revised Jury Instructions of California: Do Jurors Comprehend Legal Ease Better or Does Bias Still Exist?” (2017) 04:02 OALib 1 at 1.

16 Ibid at 9.

17 Ibid.