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
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
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.
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.
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
In addition, the sheer number of areas of civil
law required the committee to tap the expertise of dozens of
The new civil instructions will cover some areas
not included in BAJI, including a small area of lemon law and
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
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
"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,"
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."