News flash: The way standard jury patterns are written is confusing
We’ve all known for years that jurors look at standard jury pattern instructions with confusion and sometimes, abject misery. In our pretrial research, we often encourage the use of a simplified jury charge so we are sure jurors will understand the questions they are asked to answer (and so the meaningless boilerplate doesn’t take them an hour to slog through). When we use standard pattern charges in pretrial research, there are often questions about definitions, debate as to double negatives in a sentence, and confusion amongst the group over what is being asked and how (pray tell) it relates to the case.
It’s part of why we encourage trial lawyers to teach jurors how to read, understand and respond to the charge as part of their closing statement. But how do you find some straightforward and current research on just how confusing the standard pattern language is? Right here.
The latest issue of The Jury Expert contains an article by Rachel Small, Judith Platania and Brian Cutler titled Assessing the Readability of Capital Pattern Jury Instructions. And that’s exactly what the article does. The authors collected as many capital pattern jury instructions as they could (from 32 of 33 states currently allowing the death penalty). They point out the general reading level of the American population is fairly “basic”.
“Literacy levels are rated according to the following performance levels: Below basic, no more than the most simple literacy skills; Basic, the skills necessary to perform everyday reading tasks; Intermediate, the skills required to perform moderately challenging tasks; and, Proficient, the skills needed for complex reading tasks. Prose literacy, which measures the skills needed to understand and use information from continuous texts, is the form most applicable to jurors’ abilities to comprehend and apply sentencing instructions.
On average, prose literacy level of adults is identified as Basic – possessing the skills necessary to perform everyday reading tasks. Specifically, NAAL’s (2003) survey found that 29% of adults possess a basic level of prose literacy. Additionally, adults over the age of 65 were found to be more likely to receive a below basic score on the prose literacy tasks compared to other age groups. Based on this finding, it is likely that below basic levels of prose literacy are present in a substantial portion of venire persons retained for jury service.”
The language in standard pattern jury instructions does not match the likely reading level of jurors. Instead, the language is quite difficult to comprehend. The authors report that all of the state instructions were categorized as “difficult to very difficult” using the Flesch-Kincaid scoring guidelines.
We often tell our lawyer clients that we want them and any expert witnesses to be “really good middle school science teachers”. They have to speak at a level that is clear and educative as well as accurate. That level of instruction gives jurors a sense of understanding and comprehension that helps them to wade into subject areas that are challenging and complex. During mock trial research, we often hear jurors express surprise that they were able to grasp such complicated information. They are able to grasp it because the attorney and the witnesses are speaking a language that is understandable to the individual jurors.
When jury instructions are written at a level best understood by those with college educations and the level of literacy in this country is quite a ways below that standard–there is a problem. You can use this research to buttress an argument that the language is too difficult in standard pattern instructions. If that fails, you can use this research to remind you to teach jurors how to interpret the charge, point by point by point.
Small, R., Platania, J., & Cutler, B. (2013). Assessing the readability of capital pattern jury instructions. The Jury Expert, 25 (1.)