By Dr. Ken Broda-Bahm:
These are trying times for those of us who are looking to see whether American rule of law can survive its current challenges. As our executive branch tests the limits of Congressional authority, and bucks the traditions of judicial review, the question that’s up in the air at the moment is whether our institutions are strong enough. While, at this stage at least, the challenges involve judges more than juries, the weaknesses in the general public’s comprehension levels are a little concerning. Among those who strongly approve of President Trump so far, for example, fully 62 percent support impeaching judges for ruling against Trump on spending freezes and agency closures, according to a recent Marquette University Poll. This position is reinforced by statements like the recent one from Vice-President Vance that, “Judges aren’t allowed to control the executive’s legitimate power,” adding, “I don’t care what the judges think.” His supporters agree. Instead of seeing our system as being based on three co-equal branches of government, they see the executive, this one at least, as being appropriately in charge of everything.
This tendency by a large part of the public to see the law, not as an impartial system of consistent rules, but as just another form of power to be wielded, perhaps shouldn’t be surprising. The tendency applies in other contexts where we expect jurors to understand and to follow the law — contexts like jury duty. We have long understood that legal instructions can be abstract, technical, and not at all geared toward a common person’s understanding. And we’ve also long understood that, without a clear understanding of the law, jurors are free to follow their own inclinations, and can be motivated to read their personal preferences into the law. The question is also not just one of straightforward comprehension (“can they get it?”), but is more one of “cognitive fluency” (“how easy is it for them to apply and work with it?”) with most conventional instructions strongly lacking at the level of fluency (Vega, 2024). In this post, I will consider some implications of this generally low level of understanding when it comes to the law we expect our citizens to follow and apply in court.
Given the gaps we often see in the public’s understanding of the rule and role of law, I have a few pieces of practical advice for those of us who rely on that understanding.
Don’t Count on the Standard Instructions
Even decades after the advocacy of “plain language” jury instructions, what you still hear in most courtrooms is more about attorneys and judges covering their bases, and less about actual communication. We recently held a mock trial where both sides were involved in the research and had to agree on jury instructions. After the project was over, and with the experience of watching deliberations fresh in her mind, one of the attorneys commented to me, “If we had known just how much they would disregard the instructions, I think we would have fought less over them.” That is unfortunately a common reaction when attorneys have a chance to observe mock deliberations: Jurors will sometimes work to puzzle through the law, but as often, they will apply an intuitive shortcut in order to focus on what they think the law ought to be.
Justify the Rules
Just as parts of the American public could use a refresher on the reasons for a checks-and-balances style of government, jurors benefit from understanding the why and not just the what of the law. Judges, of course, will say that the why doesn’t matter, and that they’ll be the ones to tell jurors what the law is. Thinking about jurors’ motivation, however, that perspective is correct but incomplete. For instructions to have credibility, applicability, and meaning, it helps jurors to understand why the law is what it is. Take, for example, the principle of contra proferentem, or the idea that an ambiguous term in a contract should be interpreted against the interests of the party who drafted the contract. That isn’t just a rule, it is a clear equity-based idea that says that it is unfair for a party to benefit from a lack of clarity that party actually created.
Teach, Don’t Just Cover
As early as you’re able to, start talking about the process that jurors should follow in order to reach a good decision. From a jurors’ perspective, it isn’t just about the preferred verdict (which you might think of as your Mapquest destination), it is about the way that jurors should get there (their turn-by-turn directions). One barrier is that instructions are not always finalized when trial gets underway, since judges often have what I see as an annoying habit of only locking in instructions just before closing arguments. But when you do know the general course jurors will follow, and when the judge does allow you to refer to it, then referring to the steps in opening statement and in testimony can be a big advantage for jurors.
Ultimately, it is about the ability to give a clear explanation of what the law is and why. One good example of that ability in action comes from a new blog authored by a former colleague of mine, Scott Barker. The Substack publication is called “The Understandable Constitution,” and particularly in the current legal climate, it serves as a powerful reminder not only of the wisdom of our system of rule of law, but also of the power of clear, simple, and direct legal explanations.
Other Posts on Instructions and Comprehension:
- Avoid Legalese, and Other ‘Magic Spells’
- Respect Your Jury’s ‘Informational Phase’ (They’re Learners, Not Just Persuasive Targets)
- Be Cautious About Instructing Your Way Out of Bias
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