Plain meaning, practical reason, and culpability: toward a theory of jury interpretation of criminal statutes.

• Author: Brown, Darryl K.

In one of the few existing recordings of American juries deliberating in an actual criminal case, Wisconsin v. Reed,(1) we observe jurors struggling with how they should apply a statute in a case in which the facts are not in real dispute. The defendant is charged with felon in possession of a gun, and all agree that he has a felony record and owned a pistol until he turned it over to the police upon their request. The statute contains three elements. The defendant must (a) have a felony conviction, (b) have possessed a gun, and (c) have known that he possessed the gun. Despite the apparent simplicity of the case, the jurors deliberate for two hours and acquit. Their deliberations include some intriguing, and perhaps worrisome, statements. "I think we have more capabilities than to say, one-two-three, these are met on a very simple level. I don't think, as jurors, that is necessarily our role," says one juror. "Is he a threat to society? And if we decide he's guilty, is that just?" another asks. "What about sending a message? I'm thinking of a message I'd like to send to the DA's office." In the latter part of the discussion, jurors struggle to interpret this simple statute. "I'm having trouble with that word 'gun,' but I'm really having trouble with this word 'to know,'" says one. "Perhaps he didn't, in the fun sense of the word, know he possessed a firearm," suggests another.(2)

The Reed jury's acquittal is often described as nullification.(3) Yet the deliberation reveals jurors engaged in an extended, thoughtful, and -- I will argue -- necessary effort of statute application. Seen as a project of statutory interpretation, the deliberation raises the interesting issue of whether jurors interpret statutes in a manner that at all resembles the well-studied strategies of judicial statutory interpretation. The considerations that these jurors raise, it turns out, mimic concerns familiar from judges' construction of statutes. If jurors are sometimes led into complex interpretive debates, what prompts this? Many would probably respond that untrained, undisciplined jurors are inclined to exceed the mandate that limits them to "applying the law" to the facts they find. Yet we already know from the voluminous literature of statutory interpretation and from earlier, legal-realist insights that "application" can be a complicated, value-laden, and ambiguous task rather than a rote, mechanical one.

The label "law application" obscures the complexity of the jury's task. The considerable recent public law literature on statutory interpretation helps to clarify the creative, normative nature of application, which inevitably entails a degree of law-creating and policymaking. Law application is now widely seen as a complex, dynamic process informed by substantive values and contextual considerations rather than as a process determinatively guided by a methodology such as plain meaning or drafters' intent.(4) This literature, however, is largely concerned with statutes in civil public law contexts rather than criminal codes, and it is completely devoid of any effort to describe how juries apply statutes.(5) This is a deficiency in the statutory interpretation literature, but it is a more serious gap in studies of the jury.

Although modern juries apply law as well as find facts, they rarely are given guidance in the application task, in contrast to the considerable advice they receive on factfinding.(6) Studies of the jury tend to focus on its factfinding task, in part because that process raises issues of keen interest to trial lawyers and litigants, such as what sorts of evidence jurors find persuasive and what biases affect their findings.(7) Many studies explore issues related to law application, such as the role that norms or notions of justice may play in verdicts, particularly when those views conflict with the plain meaning of statutes and other jury instructions.(8) Yet few studies directly address the issue of how juries interpret legal language rather than trump it with compelling normative concerns or personal biases. Social science literature often relies on inadequate conceptions of statutory application to assess juries, assuming that juries either "follow" and "apply" the law or ignore it to follow their own senses of justice, preferences, or biases.(9)

Courts and legal scholars have done no better. One prominent jury scholar, Reid Hastie, recently noted that "[i]ntuitions . . . about how jurors will behave have been the primary source of guidance for the formation and application of legal policies," especially by courts.(10) "The result has been a reactive, fragmented, and sometimes incoherent collection of speculations about juror behavior."(11) This simplistic understanding of law application is reflected in jury instructions and much jury research, and it conflicts with our complex picture of statutory construction by judges and agencies.(12) What constitutes "bending" the law and whether a given construction counts as "following" the law -- what, in short, constitutes a normatively appropriate application of law -- are questions that the study of statutory interpretation pursues. Many of the cases that juries decide are likely to pose significant interpretive issues. Most cases settle before trial, so those that go to juries are disproportionately hard or close in some way. Many are close only because of factual disputes;(13) but some significant portion also pose significant rule-interpretation issues, which typically are difficult because text, purpose, justice, and other context concerns point in different directions.(14) Limited conceptions of statutory construction lead to illfounded criticisms of juries' interpretive approaches and decisions because they presuppose an untenable formalism for rule application. A more complex description of interpretive practice prompts reassessment of how well juries employ instructions and apply law.

This article offers a preliminary theory of how juries apply criminal rules and aims to add to the study of juries a now recognition of jurors as interpreters of statutes. I build this theory on new analysis of two jury deliberation data sets, supplemented by review of earlier empirical studies. The first source is the recording of the deliberation in Wisconsin v. Reed. The second is a set of eight mock jury deliberations based on a single theft case, Michigan v. Harris. The tools of statutory interpretation scholarship yield insights on how juries resolve difficult problems of law application. This article also builds that analysis from empirical research in the behavioral sciences, support underutilized in legal scholarship on statutory interpretation.

This focus on jury interpretation of statutes, in turn, provides insights into a central project of criminal adjudication. Criminal law scholarship emphasizes at the conceptual level that criminal judgments are individualized assessments of moral culpability. A focus on jury application of statutes allows us to explore how such evaluations actually are accomplished at the "ground level" of individual case adjudication. At this level we see in action the tension between a core rule-of-law value -- consistent application of statutes across cases -- with criminal law's goal of judging each defendant's culpability individually. The latter requires a morally attuned inquiry in which finding the breach of a conduct rule is merely a prerequisite rather than the complete analysis. Yet reaching judgments through statutory interpretation informed by broader public values and norms may seem to jeopardize both the rule of law and the democratic legitimacy of adjudication.(15)

Similar tensions occur within the jury's decision. Jurors must interpret law in order to apply it, and that interpretive process occurs in a broad context of considerations beyond the text's plain meaning or the legislature's intent. Juries interpret statutes in light of the factual context revealed at trial; the purposes to which the statute is being put (and may be put generally); instrumental concerns such as the incentive effects of a judgment; public values,(16) common notions of justice, and social norms; and the jury's institutional role in the larger justice system.

Part I of this article sets the stage by discussing the unique function of criminal law and the special set of demands it imposes on the interpretation of criminal statutes. Part II elaborates the practical reasoning approach to statutory interpretation, drawing on sources in hermeneutics and pragmatism.(17) Part III surveys existing social science research for empirical evidence on jury decisionmaking and, in particular, interpretive methods. Though few studies focus explicitly on interpretation of statutory language as opposed to nullification or miscomprehension of statutes, the literature suggests that juries use interpretive practices that are captured by descriptions of dynamic construction and practical reasoning.

Part TV then uses the practical-reasoning model, informed by empirical research, to study the jury-deliberation data. The Reed deliberation reveals a rich, complex process of statutory interpretation that shares many strategies with judicial methods. Further, it finds the jury employing its interpretive strategy to fulfill the normative function of criminal law described in Part 1. Next, I examine the set of mock jury deliberations in Michigan v. Harris, a fictional property theft case.(18) Facing a different problem of construction and different normative concerns, the Harris juries use a similarly sophisticated process. Despite close attention to." statutory language, the Harris juries experienced somewhat less I success at achieving a defensible judgment of moral culpability and with wing public-values analysis. This final Part suggests a descriptive theory of jury interpretation of criminal statutes. Concluding remarks discuss implications of this study...