Imagine that you’re a juror. After sitting through a trial, the judge starts reading you and your fellow jurors the “jury instructions,” a procedure that can take hours. Here is a snippet from Standard of Proof:
A preponderance of the evidence is such evidence which, when considered and compared with any opposed to it, has more convincing force and produces in your minds a belief that what is sought to be proved is more probably true than not true…
What factors interfere with comprehension? Can we use linguistic research to understand them and, perhaps, eliminate them? Professor Janet Randall and her Plain English Jury Instruction Project (begun in collaboration with the Massachusetts Bar Association) have been studying the question.
The team is comparing how well listeners understand our current instructions with their “plain English” counterparts, which minimize linguistically complex constructions, like passive verbs and legal jargon. And we are studying whether listeners would benefit from reading the instructions as they listened.
The law asks jurors to play a part in justice, yet the language of the law is nearly incomprehensible to anyone without extensive higher education, and even to many with it. It especially challenges jurors whose native language is not English and those who speak any dialect that differs from “Standard American” English. And when jurors are confused by unclear jury instructions, they not only disengage but return misinformed verdicts. Our research has begun to identify the linguistic factors that make jury instructions difficult to understand, findings that will help us redraft instructions and, eventually, have a significant impact on courtroom decisions.
Currently Massachusetts is a state with no mandatory “pattern” jury instructions; judges can make up their own instructions or use instructions passed down to them. Based on the success of the sample of instructions in our studies, our long-term goal is to create a full set of Plain English instructions that can be adopted by the Massachusetts judiciary. And we are starting to have an impact. We were invited to give a continuing education workshop for judges at the Flaschner Judicial Institute, where judges take continuing education classes, and the response was uniformly enthusiastic. Several judges even told us that they went home to rewrite their instructions according to what they had learned. In 2017, we shared our research at a collaborative conference with the Northeastern Law School (The Syntax of Justice: Law, Language, Access, and Exclusion). Eleven Massachusetts judges attended, and one has contacted us about working with judges at the federal level. This enthusiastic reception by the people who create and use jury instructions demonstrates that our research could lead to great change.