Monday, December 05, 2011

When Plain Isn't Plain Enough: Recent Legal Research

A few years ago, I was a juror on what most would call an "attempted murder trial," but in legal terms called "assault in the first degree." It lasted three weeks. The victim had been shot at close range, and the question was whether the defendant had pulled the trigger. We had to answer other questions, too: Was the defendant carrying a gun without a permit? Did he intend to rob the victim? We found him guilty of "two accounts of assault in the first degree."

The question wasn't just that, though.  Our pattern jury instructions were almost enough to push the jury over the edge. You see, we weren't the typical jury. Four of six jurors held multiple degrees. It was a crazy educated jury. The group argued longer over what "reasonable doubt" meant as much as we reconstructed the case. And, as a former paralegal, I was a little out of water. If I gave the legal definition of a term, was I practicing law unintentionally? Or just recalling my knowledge of criminal law?

Given that legal issues (albeit related to patenting) is one of my research interests and given my background as a paralegal, I was super excited to see in the January-March 2011 issue of Technical Communication Quarterly two articles about legal issues. One of the articles focuses on jury instructions. I had to read that one.

Katherine S. Miles and Jacquline L. Cottle, in "Beyond Plain Language: A Learner-Centered Approach to Pattern Jury Instructions," argue that the jury should be able to ask the judge to clarify even further what the instructions mean.

The authors argue that not only do jurors have a problem decoding instructions, but decoding them while carrying information or misinformation about what a term means or the way a specific crime is supposed to occur.

The jury I was on deliberated much, much longer than the judge thought we should have, and we returned a verdict that we thought was fair, but wrong, as the judge told us at the end of the case. He believed the defendant guilty on all charges.

We couldn't read any press about the case, but one of the jurors I got to know (and still occasionally email) and I had access to Lexis-Nexis, so you can be sure that was the first database we logged into as soon as we were allowed.

If we'd read the press before we deliberated, we would have agreed with the judge: guilty on all charges.

If you file a patent, you can get help from the Inventor's Assistance Center, but if you hold the balance of someone's life in your hands, there's not an expert to help with that. Miles and Cottle argue for a learner-centered approach to jury instructions.

They argue that even though the instructions are written in "plain English," they are still confusing because jurors bring so much preconceived information to the table. And it's true. Anytime a person has a legal dispute, you hear people say, "You should be able to..." and many times (unless the advice is from a lawyer), it's simply not quite accurate.

Miles and Cottle argue that the jury needs a chance to dialogue with the judge to clarify instructions and provide further dialogue to clear up preconceived ideas about the legal issues.  

Getting back to patents for a moment, the courts have already taken jury trials for patent cases off the books because a "jury of peers" is impossible to find in a patent case involving highly scientific data and millions of dollars. A jury of peers doesn't exist. And while criminal law or tort law may be different, perhaps what jurors need is an impartial expert who can advise about the meaning of legal terms, without blending knowledge about the case with that advice.

The one juror with no higher education said on the first day, something like: He's guilty. It's a gang shooting and that's just what happens. The rest of us recoiled. We were taught to "think critically" during graduate school and not to draw conclusions too quickly.

Later, as we read the press, we realized she had been right: probably a gang-related shooting, and the only thing we did wrong was not convict the defendant on all the charges. The defendant appealed, and when I read the appeal, the court explained how the jury could have reasonably found that and laid out the attempted robbery and the other issues we returned as not guilty. In addition, some of the defendant's sentencing testimony was included. He said he was sorry for what happened, which confirmed that our verdict had been right. The judge concluded that the defendant was very, very lucky the victim survived.

We need more work like Miles's and Cottle's because it uncovers issues that seem to have been resolved, but in fact, still remain. Jury instructions, which were written in plain language, aren't that "plain" after all.

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