Jury instructions: plainer is better.

Estimates show that 25 million adults are not able to read, or read at or below a fifth-grade level. Another 35 million read at or below a ninth-grade level.

The average person called for jury duty probably has some reading deficiencies there is no literacy test for jury. duty and often more "capable" people "get out" of serving. Nevertheless, the judicial system often complex legal terms and awkward grammatical structure when instructing jurors.

The adoption of pattern jury instructions has been viewed, generally as an improvement in the trial process. The instructions have saved time and reduced the chance of legal errors. But, unfortunately, pattern instructions have one major weakness: Relatively little attention has been given to ensuring that they are understandable and easy for a jury to use.

A number of researchers have examined criticisms of jury, instructions. Some of their findings can be particularly helpfull in drafting instructions. Amiram Elwork, Bruce Sales, and James Alfini, in judicial Decisions. In Ignorance of the Law or in Light of It? (1 L. & Hum. Behav. 165 (1977)), suggest the following:

* Avoid legal jargon. For example, although the term "proximate cause" is common jargon among practitioners, the word "proximate" rarely appears in our language. Without any loss in legal accuracy, a much more common word, such as "legal," can be substituted for "proximate" and should help the comprehensibility of an instruction. (Id.)

* Use common words. In addition to being more difficult to perceive, remember, and comprehend, low-frequency words tend to connote more negative meanings than high-frequency words. For example, use of more common words such as "broke and "law," in place of "violated" and "statute," will tend to make an instruction more neutral and less likely to generate more negative connotations than are intended or needed. (Id. at 166).

* Use "concrete" words (words more easily visualized and coded in terms of space and time). For example, a sentence like "It was the duty of the defendant, in connection with the occurrence, to use ordinary care for the safety of the plaintiff and the plaintiff's property" requires a juror to understand the law abstractly and then to apply it concretely to the actual litigants and events in a case. (Id.)

It is possible to reduce this two-step process to one step and make the instructions more concrete and easier to visualize by having the judge specify the "occurrence" referred to and name the litigants involved. For example: "It was the duty of Mr. Smith in connection with the automobile accident to use ordinary care for the safety of Mr. Doe and Mr. Doe's property." (Id.)

* Avoid self-embedded sentences. These sentences have a subordinate sentence within the main sentence that makes the sentence hard to understand. Elwork, Sales, and Alfini cite an example from the Michigan civil jury instructions. Instruction 15.01 originally read

When I use the words "proximate cause" I mean first that there must have been a connection between the conduct of the defendant which plaintiff claims was negligent and the injury complained of by the plaintiff, and second that the occurrence which is claimed to have produced that injury was a natural and probable result of such conduct of the defendant.

The instruction was changed and simplified to read "[Mr. Smith] can be legally blamed for causing an [accident] if the [accident] is a natural and a likely result of his negligence. (Id. at 168.)

Robert P. Charrow and Veda R. Charrow also conducted research on improving instructions. The following suggestions come from their article Making Legal Instructions Understandable: A Psychologuistic Study of Jury Instructions. (79 Colum. L. Rev. 1306 (1979).)

* Eliminate nominalizations (nouns that have been constructed from verb stems). For example, the authors suggest that instead of writing "The incorporation of material into a chapter ..." You should, write When you are incorporating material..." (Id. at 1321.)

* Recast sentences that contain the prepositional phrase "as to" (for example, changing "As to any question to which all objection was sustained, you must not speculate as to the reason for the objection" to "You must not speculate about the reason for the objection."). (Id. at 1322.)

* Insert "whiz" phrases ("which is" or "that which") into sentences where the have been deleted (for example, "Any questions of fact submitted to you "should be "Any questions of fact that are submitted to you."). (Id. at 1323.)

* Remote multiple negatives. For example, "without which the injury would not have occurred" should be removed. (Id. at 1325.)

* Reduce strings of items or attributes to lists of one or two. The authors cite the ritual use of "give, bequeath and devise" in wills, and suggest using only "give." (Id. at 1326.)

Another criticism about the presentation of jury instructions has been the timing. Normally, the jury is given the substantive instructions at the end of trial. But jurors instructed both before the trial and after the trial are better able to integrate facts and law, and preinstructed jurors more often defer their credict decisions until after the trial. (Vicki L. Smith, Impact of Pretrial Instructions on Jurors' Information Processing and Decision Making, 76 J. Applied Psychol. 220, 220-28 (1991).)

Clearly, the prescilt system of instructing jurors can cause some confusion. Adopting solic of these suggestions outlined about Could improve the process.