Published in The Clarity Journal 81 – 2020.
The right to a trial by jury is one of the fundamental elements of the American system of justice. Jurors are asked to engage in a complicated and difficult task, listening to different versions of facts provided by the parties at a trial and applying their understanding of those facts to the relevant law, to determine whether a person is guilty of a crime in a criminal case or who wins a civil case. A key element of this process is the instructions that the judge gives to the jury at the end of the trial. These instructions set out the relevant law, ways to listen to and to evaluate the evidence, and suggestions as to how to conduct their deliberations. In the past, jury instructions were stated in elaborate legalese, which even lawyers at times found hard to follow. But in recent years, judges and attorneys have learned that it is critical to phrase the instructions in plain and readily comprehensible language, in order to assure that jurors really do understand what they need to do and can perform their task in as informed a manner as possible.
Aside from improving the delivery of justice in jury trials, this plain language movement in the writing of jury instructions has important ramifications for overall access to justice. One of the enduring issues facing the justice system is the perception that it is a foreign world, replete with terminology and arcane rules and procedures that only the initiates can understand. Many people walk into a courthouse intimidated and afraid, unsure of what will happen, how they will be treated, and uncertain as to how they should proceed. This is most obviously true of persons who come to court without a lawyer, but it also is true of people called for jury duty. In many cases, all they know is that they have to show up, that they are expected to sit in a courtroom perhaps for many, many days, and that they may well not have any clear idea of what is going on at any particular time in the trial.
Given the critical role that the right to a jury trial plays in our society, it obviously is important that jurors approach the courthouse and their role in a positive and optimistic way. A variety of techniques have been developed to ensure that this occurs, such as an explanation of why they have been called for jury duty and the process that will be followed, assisting jurors with parking, and treating them with respect throughout the proceedings. Reducing confusion through clearly understandable jury instructions is another important element of this approach. To put it differently, providing jurors with as simple an explanation as possible of their task is a key way of ensuring that they embrace the importance of their role, and hence of underlining the legitimacy of the entire process. Finding ways to provide that legitimacy and comfort is one of bedrock concerns of effective access to justice.
There are at least four other ways that jury instructions that are written in plain language can improve access to justice. First, most citizens have virtually no understanding of technical legal terms; some are not highly literate. This is not to say that they are not sophisticated in their ability to understand what they hear and to come to an understanding of the relevant facts and law, but that they need to be spoken to in terms that are readily understandable. Plain language helps ensure that they can engage in a meaningful way.
Second, and relatedly, a person cannot serve effectively on a jury if they do not have a basic understanding of English, since they must be able to understand the testimony. There are many jurors for whom English is a second language. Jury instructions written in plain language can facilitate their participation in a jury trial, thereby broadening the community of persons who can sit on a jury and therefore have access to the judicial system.
Third, it is important to keep in mind that while the principal “audience” of jury instructions is the jurors, an equally important “audience” is the appellate court. The party that loses a jury trial often will appeal it, and one potentially valuable avenue of appeal is to argue that the judge did not accurately instruct the jury on the relevant law. This means that the judge has to write instructions that are both accurate and understandable – but for better or for worse, it can be very tempting for a desire to be accurate to trump understandability, so as to avoid a reversal of the verdict and the need to do the trial all over again. This tendency means that appellate judges too have to be aware of the value of plain language in their review of the jury instructions – for access to justice is as important at the appellate level as it is at the trial level.
Finally, an important element of effective access to justice is ensuring that litigants understand what is happening in court, both so that they can participate effectively and so that they feel that they have been given justice. The ritual of reading instructions to the jury is one of the most important parts of a jury trial – it is the final step of the process and lays out what the jury is supposed to do. Needless to say, the litigants necessarily will want to pay close attention to what the judge has to say in this respect. As such, instructions that are written in plain language can be a key way to help the litigants understand what is happening and how the jury is supposed to evaluate their case. And this in turn facilitates the overall goal of ensuring that everyone has full access to every key element of the trial in which they are involved.
