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Criminal jury instructions translated into plain English

More than 700 new jury instructions for use in criminal trials, eight years in the making, were approved last month by the Judicial Council, providing guidance to jurors in plain English instead of arcane legalese.

No longer will jurors hear, “Innocent misrecollection is not uncommon.” Instead, they will be told: “People sometimes honestly forget things or make mistakes about what they remember.”

Legalese v. Plain English

OLD: The law does not undertake to measure in units of time the length of the period during which the thought must be pondered before it can ripen into an intent to kill which is truly deliberate and premeditated.

NEW: The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated.

OLD: A cold, calculated judgment and decision may be arrived at in a short period of time, but a mere unconsidered and rash impulse, even though it includes an intent to kill, is not deliberation and premeditation as will fix an unlawful killing as murder in the first degree.

NEW: A decision to kill made rashly, impulsively or without careful consideration of the choice and its consequences is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly.

The instruction about false testimony used to be: “A witness who is willfully false in one material aspect of his or her testimony is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars.”

Now, jurors will be instructed: “If you decide that a witness deliberately lied about something important, you should consider not believing anything that witness says. Or, if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest.”

Definitions of the well-worn phrases “presumption of innocence” and “reasonable doubt,” while not shorter, are clearer.

Coming up with the new language was “a very challenging enterprise,” said Justice Carol A. Corrigan of the Court of Appeal in San Francisco, who chaired the criminal instructions committee. “We had these two prime directives — to make sure the law was absolutely accurate and to make sure it could be understood. Sometimes there’s a pretty healthy conflict between the two.”

Corrigan and her team of between 15 and 18 lawyers and judges acted on a directive from Chief Justice Ronald George, who in 1997 appointed the Task Force on Jury Instructions with orders that it make instructions more understandable to jurors while accurately stating the law. A new set of civil instructions was adopted in 2003.

At last month’s Judicial Council meeting, George jokingly apologized to Corrigan and Riverside appellate Justice James Ward, who chaired the civil instructions committee, for pulling a “bait and switch operation” on them, when he originally created the task force “to do some tinkering around the edges . . . and replace some antiquated language.”

Criminal jury instructions in California originally were developed in the 1930s by the Los Angeles Superior Court and published as CALJIC (California Jury Instructions, Criminal). The instructions were lifted wholesale from relevant statutes, resulting in densely worded, difficult-to-understand verbiage.

Until now, Corrigan said, courts have asked jurors in criminal cases “to do something very, very challenging. Among the many things they have to do is learn a body of law they don’t know anything about and that judges and lawyers spend years trying to master. We ask (jurors) to master it on the first bounce. That’s difficult under the best of circumstances.”

A blank slate

Because the CALJIC instructions are copyrighted, the task force started with a blank slate and created the new instructions from scratch.

Besides stating the law accurately and clearly, the group also tried to organize the instructions in a different manner, giving attention to concepts of learning theory, such as how people process information. Sentences tend to be shorter. Present tense and active voice are used. The order in which ideas are presented to jurors is better organized.

For example, Corrigan said, every crime requires a combination of mental state and action in order to be prosecuted. Under the old system, a defendant’s mental state was addressed in a separate instruction. Now, both elements are combined in one instruction.

In addition to paying attention to how the brain operates, the rewrite panel took into account the demographics of juries, including the diversity of cultures, the large number of languages spoken and even people’s attention span.

“American culture and society are increasingly complex and we have a much more varied society than in the beginning of the 20th century,” Corrigan said. “Now many people are from diverse cultures and that’s wonderful in many ways, but they don’t always bring the same level of innate understanding of the system.”

In addition, she said, it often takes more than an hour to instruct the jury and “Americans are not accustomed to paying attention in a sustained way to complicated bodies of information.

“We were up against all those cultural and intellectual challenges.”

Creating new criminal instructions presented a serious law-related challenge because a large proportion of appeals in criminal cases are based on jury instructions. “On the criminal side, we’re talking about issues of life and liberty. The way the law spins out and the way instructions are used in the courtroom have a new significance on appeal,” she said.

Fewer hung juries

George said in the past, when jurors present the trial judges with questions, “the understandable desire to simplify the instructions has led many judges to improvise on their own. Those laudable attempts often were misguided and led to reversal on appeal.”

Both Corrigan and George said they hope the plain English instructions will reduce the number of reversals as well as result in fewer hung juries.

Because of the monumental nature of the undertaking, the makeup of the rewrite panel changed over the years. Some instructions were sent out for public comment more than once and were extensively redrafted. The task force received and reviewed tens of thousands of comments.

“This really is the product of the entire legal community in California,” Corrigan said. “Every judge and lawyer had an opportunity to comment, and we really did profit from their input.”

In addition to the instructions themselves, the panel expanded use notes that offer more explanations and may provide more help to judges and lawyers than the old instructions did.

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