Vol. 12, No. 2, Pg. 18. Improving Jury Deliberations: Perspectives from the Circuit Court Bench.

• Author: By the Hon. John L. Breeden Jr. and William A. Bryan Jr.

South Carolina Lawyer

2000.

Vol. 12, No. 2, Pg. 18.

Improving Jury Deliberations: Perspectives from the Circuit Court Bench

18Improving Jury Deliberations: Perspectives from the Circuit Court BenchBy the Hon. John L. Breeden Jr. and William A. Bryan Jr.Because the law has become so complex and trials more lengthy the issues presented to the jury are usually foreign and too numerous for the average juror to treat with competence. The burden, therefore, falls squarely in the lap of the circuit court judge to educate the jurors. The trouble, however, is that under the present system, it is very difficult to teach complex legal issues to lay perspersons with varying educational backgrounds.

20Imagine a constitutional law class in which the entire course consisted of a recitation of the U.S. constitution, a copy of which is not provided to the students. The professor delivers the recitation while seated behind a desk and does not move about the room or attempt to engage the students in discussion. The students are also not allowed to take notes nor are they encouraged to ask questions.

If this method is woefully inadequate to prepare law students to deal with constitutional law issues, then the method of instructing juries on the law also fails to equip lay juries with the understanding and knowledge to manage the issues presented by the court.

In response to the growing concern over a juror's inability to understand and apply jury charges, scholars from across the country have written numerous articles on how to improve the instruction process. We offer the following suggestions on how the courts of this state could improve a juror's understanding and application of the law with which he or she is charged.

If the court demands that a defendant's guilty plea be "understandingly made," it is not unreasonable for the court to demand the same of jury verdicts. Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Lambert, 266 S.C. 574, 578, 225 S.E.2d 340, 342 (1976). Otherwise the jury system cannot be depended on to produce fair, equitable and consistent results, and its integrity is consequently undermined.

MAKE LEGAL LANGUAGE MORE UNDERSTANDABLE

The quickest and simplest way to alleviate jury confusion is to write instructions that jurors can understand. In other words, write instructions in plain English. However, it is difficult for lawyers, who say in two words that which could be said in one, to discard a writing style that is as much a part of the legal profession as chicken scratch is to the medical profession.

Nevertheless, the empirical research suggests that instructions written in plain English improve juror comprehension. Robert P. Charrow and Veda R. Charrow, a professor and research scientist, respectively, conducted an early study in jury comprehension and concluded that particular linguistic features, which, not surprisingly, are common elements of legalese, are responsible for jury confusion. For example, the Charrows' study revealed that the use of nominalizations (nouns derived from verbs), "as to" instructions, misplaced prepositional phrases, legal terms like "proximate cause," double and triple negatives and poor organization negatively affected juror comprehension.

Revised jury instructions based on the Charrow's findings resulted in a dramatic rise in their subjects' comprehension. It follows that jurors in this state would also benefit by revised instructions written in plain English. Robert P. Charrow & Veda R. Charrow, Making Legal Language Understandable: A Psycholinguistic Study of Jury Instructions, 79 Colum. L. Rev. 1306 (1979).

REDUCE THE VOLUME OF INSTRUCTIONS

Surprisingly, the Charrow's study revealed that sentence length was not as adverse to juror comprehension as was once thought. The complexity of the sentence, not its length, is critical to juror comprehension. Nevertheless, it is still a good idea to limit the volume of instruction. Studies show that jurors' capacity to process, store and recall semantic information is limited; failure to recognize human limits results in juror confusion and error. Although the length and complexity of jury instructions are dictated by the circumstances of each case, not human absorptive capacity, no instruction should be delivered without first considering the consequences of exceeding these mental limitations. William W. Schwarzer, Communicating with Juries: Problems and Remedies, 69 Calif. L. Rev. 731 (1981).

USE PICTURES TO ILLUSTRATE LEGAL CONCEPTS

If a picture is worth a thousand words, it follows that incorporatingillustrations into the jury charge will result in a significantly shorter charge. In addition, studies show that...