by: Dr. Shelley Spiecker
Evidence shows that false documents were notarized by employees and submitted to a state regulatory agency. Evidence also shows that record-keeping was inaccurate; nevertheless, these matters cannot be addressed due to the parameters in the jury instructions. (Female, 55 year-old)
This quote, spoken by a juror after serving in a two month oil and gas production trial, typifies feedback I am receiving from jurors in a wide array of different cases in venues across the country. While jurors are troubled by evidence they see at trial, and possibly even want to find against a defendant, they are adhering to the confines of jury instructions like never before.
Take, for example, another completely different case – a high-profile child abuse and murder case. A majority of jurors, having sat through this approximately two month trial, echoed the dominance of the jury instructions in their verdict. In this case, the instructions benefitted both the prosecution and defense. Specifically, due to the wording of the criminal negligence instruction, jurors were guaranteed to find the defendant guilty of some wrong doing. Alternatively, the definition of child abuse was the key factor that unified a divided jury. Initially, jurors relied heavily on their own definitions of what they perceived to be child abuse. After several jurors focused the panel on the legal definition, jurors came to unanimous agreement – convicting on over 25 counts of child abuse and acquitting on the remaining – for failure of the evidence to meet the legal criteria.
As recently as a few years ago, we frequently observed jurors substituting their own “street definitions” for legal instructions. For example, jurors would define proximate cause as the one immediate intervening event prior to an accident. This is no longer the case, as jurors are placing more emphasis on jury instructions and legal definitions than ever before. Persuasion Strategies 2009 National Survey found that 71% of jurors would favor the law over a personal sense of ethics when the two are perceived to be in conflict. Compare this to 39% of jurors indicating in 2003 that they would have favored the law over a personal sense of ethics when the two conflict.
(Click chart to enlarge)
Consider further increasing the salience of the jury instructions in your next case by:
- Drafting your proposed jury instructions early in the case, so that as you move through discovery you ascertain witness testimony that supports (or is inconsistent with) the key legal elements you must prove to prevail.
- Requesting jurors be instructed prior to the presentation of evidence on concepts critical to the case - such as the definitions of negligence or proximate cause in a products liability suit, critical path in a construction dispute, or discrimination in an employment dispute. With pre-instruction, jurors will have the necessary framework to interpret the evidence as it comes in rather than try to retrofit the evidence to the law as an afterthought.
- Securing the court’s cooperation in providing jurors with a written copy of the jury instructions which they can take back into deliberations with them.
- Incorporating jury instruction language into the titles of your demonstrative exhibits.
- Weaving jury instruction terminology into your witness examinations. For example, when questioning one of your witnesses in a royalty case, consider phrasing a question by first introducing the lay term, followed immediately by the legal equivalent: “Mr. Manager, describe for the jury how your company met its responsibility, what we call in the law your fiduciary duty, to the plaintiff royalty owners.”
