PATTERN JURY INSTRUCTION COMMISSION
JUNE 1998 MEETING
The Pattern Jury Instruction Commission met June 19, 1998, 12:15 p.m., during the annual SBAND meeting held in Grand Forks at the Ramada Inn.
J. Gail Hagerty
J. John McClintock, Jr.
J. Stephen Plambeck
J. Mikal Simonson
M. Daniel Vogel
J. William McLees
J. Gerald Rustad
Professor Michael Ahlen, UND School of Law, and Dr. Douglas Peters, UND Department of Psychology, were the featured speakers. Professor Ahlen reviewed an article discussing jurors' understanding of jury instructions. B. Saxton, How Well Do Jurors Understand Jury Instructions? A Field Test Using Real Juries and Real Trials in Wyoming, 33 Land & Water Law Review 59 (1998). The study suggests that the current methods of instructing juries are not conducive to satisfactory comprehension of the instructions..
Saxton first reviewed several previous studies which indicated that jurors typically misunderstand a number of jury instructions and that some of these involve fundamental legal principles. His Wyoming study collected questionnaires from forty-one trials, seventeen civil and thirty-two criminal. Jurors were provided the questionnaires before they were discharged from jury duty. Results indicated that juries spent 31% of their deliberation time reading and discussing the instructions. Jurors generally found the instructions to be helpful. Most jurors believed that they had understood the instructions but responses to substantive questions indicated that they did not understand them as well as they thought. Jurors in criminal trials were wrong in their answers to questions but "very sure" that their answers were correct about 12% of the time. Civil jurors had more difficulty understanding the instructions. Saxton suggests that this may be due to the greater complexity of the issues in these cases. Jurors in civil trials answered substantive questions incorrectly while being "very sure" that the wrong answers were correct about 16% of the time. In criminal cases, a significant minority of jurors did not understand presumption of innocence and the burden and standard of proof in criminal trials.
Saxton formulates nine recommendations based upon two premises: 1) that the current language and manner of delivering instructions is not always succeeding, and 2) jurors appear to have more difficulty understanding and applying instructions that contradict their intuition or preconceptions. Recommendations are:
1. The courts should give each juror a copy of the instructions so that jurors can read along with the judge as the judge charges the jury.
2. At the beginning of trials, the trial judges should encourage jurors to take notes.
3. The trial courts should consider giving more comprehensive instructions at the onset of the trial.
4. Trial judges should consider changing the fashion in which they deliver instructions to attempt to maximize their impact.
5. Trial counsel should attempt as effectively as possible to weave discussion of jury instructions into their closing arguments and, where permissible, their presentations in other portions of the trial.
6. The courts and the bar should cooperate to produce a videotaped "orientation to jury service" that the courts could show to jurors before voir dire commences.
7. The trial courts should consider more frequent use of special verdict forms or general verdicts with interrogatories, particularly in cases in which these procedures could help identify circumstances in which jurors have misunderstood critical instructions.
8. The trial court should consider implementing procedures by which jurors could submit questions during the trial to be asked of witnesses.
9. The trial judges should specifically ask jurors if they have any questions about the jury instructions before the jury retires to deliberate.
Id. at 24-27.
Professor Ahlen suggested that possibly there is too much information being squeezed in at the end of the trial--a brief videotape before voir dire would be useful. Additionally, some of the common instructions could be given before beginning the trial. The Commission had asked Professor Ahlen for comments from mock juries on ten frequently used instructions. Of these, Presumption, Burden of Proof in civil cases, and Direct and Circumstantial Evidence were particularly troublesome. Professor Ahlen suggested a project involving Dr. Peters' questioning jurors after participation in trial ad. cases at the law school.. He would be able to investigate what is on jurors' minds by using different types of questions. Topics of interest might be what the instruction means to the juror, whether their legal ideas change, how the instruction was applied in this case, what type of legal reasoning was used, and whether the legal concepts were correct. He noted that if college students can't understand the instructions, the average layperson will not either. It was proposed that Presumption and Proximate Cause be used with the trial ad classes this fall followed by a questionnaire developed by Dr. Peters. This will be discussed further at the October meeting.
Minutes. Minutes of the March 1998 meeting were reviewed.
Motion to approve: J. McLees
Second: J. Rustad
Financial Report. Of $23,000, PJIC spent $7,646 through April 30, 1998 leaving $15,354.
Instructions to be Published in 1998
Sympathy, Prejudice, Emotion (PJI 1706 and PJI 2120) was reviewed due to comments received from the Gender Fairness Implementation Committee. The word "prejudiced" was deleted. A new draft was proposed:
You must be fair and impartial. Under the law everyone is equal. All are entitled to fair treatment. You must not be influenced by a person's [corporation's] race, gender, religion, political views. social views, wealth or poverty. You must not be affected by sympathy or emotion.
The instructions, civil and criminal, were tabled for further discussion.
Motion to table: M. Stenehjem
Second : J. McLees
Definition--Severe Emotional Distress (PJI 651). The word "transitory" was discussed. Motion to approve: J. McLees
Second: M. Stenehjem
Not Approved (J. Rustad and M. Stenehjem- opposed; McLees-yes)
Whether the phrase about the severity of the distress, that is, that no one should be expected to endure it was discussed. J. Vukelic noted that without this definition, the criteria would be significantly easier to meet. J. McLees noted that it is phrase that is in common use.
Motion to table: J. Rustad
Second: M. Stenehjem
Approved (J. McLees opposed)
The following instructions were presented for approval:
656 PERMISSIBLE CONDUCT
910 JOINT VENTURES
925 LIABILITY OF A PARTNER
1221 DAMAGES - AGGRAVATION OF PRE-EXISTING CONDITION
1600 WEIGHT AND CREDIBILITY (CIVIL)
1640 DIRECT AND CIRCUMSTANTIAL EVIDENCE (CIVIL)
1700 STATEMENTS BY COUNSEL AND JUDGE (CIVIL)
2101 WEIGHT AND CREDIBILITY (CRIMINAL)
2108 DIRECT AND CIRCUMSTANTIAL EVIDENCE (CRIMINAL)
2119 STATEMENTS BY COUNSEL AND JUDGE (CRIMINAL)
2318 CONTINUOUS SEXUAL ABUSE OF A CHILD
2402 SIMPLE ASSAULT
2490 ENDANGERING A VULNERABLE ADULT
2520 CRIMINAL TRESPASS (Class C Felony)
2521 CRIMINAL TRESPASS (Class A Misdemeanor)
2522 CRIMINAL TRESPASS (Class A or B Misdemeanor)
2523 CRIMINAL TRESPASS (Class A or B Misdemeanor)
2604 CRIMINAL MISCHIEF
2714 DISARMING LAW ENFORCEMENT OFFICER
2940 DRIVING UNDER THE INFLUENCE
2944 ESSENTIAL ELEMENTS OF OFFENSE (DUI)
2945 ACTUAL PHYSICAL CONTROL
2946 ESSENTIAL ELEMENTS OF OFFENSE (ACTUAL PHYSICAL CONTROL)
Motion to approve: J. Rustad
Second: M. Stenehjem
Revisions. The reformatting should be prepared this summer. Seven hundred seventy-nine gender specific references have been corrected. J. Vukelic suggested using Arial type or Times New Roman in 14 or 16 font. The staff attorney will send an update to the Gender Fairness Implementation Committee.
Administrative Details. The next meeting will be October 1 and 2, 1998.
Lynn A. Kerbeshian
2812 B 17th Avenue So.
Grand Forks, ND 58201