California Bar Journal
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Simplified jury instructions draw closer to completion
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Staff Writer
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Instructions for jurors in understandable English are drawing closer to reality as two committees prepare to publish hundreds of revised, and they hope, clarified instructions sometime next year.

The enormous undertaking, involving hundreds of attorneys and thousands of hours, is meant to make life easier for jurors in both civil and criminal trials who may find themselves baffled by the dense legalese presented to them at the conclusion of a trial.

James D. Ward
James D. Ward

The task was "so awesome I threatened to quit dozens of times," admits California Appellate Justice James D. Ward, who heads up the effort to revise the civil instructions.

They are expected to be completed first, and Ward estimates that between 600 and 650 instructions eventually will be published. About 500 are in final form or nearing completion.

About the same number of criminal instructions are expected to be published about six to 12 months later, the lengthier process attributable to the caution which must be exercised as a result of the possibility that criminal verdicts can be overturned on the basis of problematic instructions.

The Task Force on Jury Instructions was a byproduct of widespread criticism of the verdict in the O.J. Simpson double murder trial. A Blue Ribbon Commission on Jury System Improvement was created by the Judicial Council, and it in turn recommended that new instructions be created that both accurately reflect the law and are understandable.

Carol Corrigan
Carol Corrigan

Chaired by Appellate Justice Carol Corrigan of San Francisco, who also is leading the criminal instruction revision effort, the commission began its work in 1997. It basically started from scratch, avoiding simply rewriting existing standardized instructions in BAJI and CALJIC, copyrighted materials originally created in the 1930s and 1940s by a committee of judges of the Los Angeles Superior Court.

Incompatible goals

The accuracy and clarity mandate presented goals that are somewhat incompatible, Ward said. "You just can't say to the jury, 'OK, go out and do justice, do the right thing,' he said. "You have to explain the law to them and explaining the law to anyone, whether it be a Harvard professor or a lay person on the street, is not an easy thing to do."

Because many instructions arise from the use and application of statutes and from court opinions, great care must be exercised in clarifying their often dense language. Rewriting either is tantamount to changing the law or changing the meaning of a ruling. "It's a constant struggle," Ward said.

His committee made changes in the explanation of some concepts to the jury. For example, the circumstantial evidence instruction now in use is confusing, so the committee dropped the words "circumstantial evidence" and substituted "direct and indirect evidence."

In addition, the sheer number of areas of civil law required the committee to tap the expertise of dozens of practitioners.

The new civil instructions will cover some areas not included in BAJI, including a small area of lemon law and antitrust instructions.

The criminal instructions presented a different challenge, Corrigan said, because "many more cases on the criminal side are appealed on the basis of jury instructions. So if they're not properly put together, large numbers of cases could be reversed."

The group revising the criminal instructions also is addressing some new areas, such as failing to register as a mentally disordered sex offender in certain cases, and is consolidating many instructions, combining three or four into one.

Once the instructions are completed, a publisher must be chosen, presumably with substantial sums of money at stake. The Los Angeles courts hold the copyright to BAJI and CALJIC jointly with West Group. According to Ward, the courts plan to phase out of the publishing business, but West's intentions are not as clear. Presumably, it could continue to publish BAJI and  CALJIC; it also has bid on publishing the new instructions.

In any case, Chief Justice Ronald George has made clear the Judicial Council plans to put the instructions in the public domain, and they will be available both in printed format and online. In addition, the Administrative Office of the Courts is expected to create a permanent maintenance group which will update and correct the instructions as the law changes.

Satisfied with the product

Both Ward and Corrigan said that despite the frustrations, they are satisfied with the end product and that preliminary tests indicate the revised instructions are clear and understandable.

"As challenging as this enterprise has been, the task set by the Judicial Council is a very very sound one, and the work in the end will make a significant contribution to juror understanding and to the overall way cases are tried in California," Corrigan said.

She likened the revision job to cutting a diamond: "You don't get a second chance so you have to make sure it's right the first time. That's why it's taken so long."