We need plain language in our justice system, especially jury instructions | Opinion

April 21, 2021 6:00 am

Hennepin County District Judge Peter Cahill.

With so much focus on the justice system this week, now is an opportune time to review how using plain language — or neglecting it — can have real-world consequences, especially when it comes to jury instructions.

Because the justice system serves the public, courts must ensure that the public can understand and follow court procedural rules. But while equitable access to justice starts with court rules, it ends with juror instructions, which if turgid and poorly written, can result in a confused or misinformed jury, with consequences rippling throughout the justice system.

It is not hyperbole to say that some defendants have died because of incoherent jury instructions. For example, the U.S. Supreme Court has heard cases resulting from ambiguous death penalty instructions. And there are ample cases in which defendants were sentenced or appealed their sentence or verdict because of faulty jury instructions. Dozens of studies have shown that jury instructions can be incomprehensible and can affect a case’s verdict. So using plain language in jury instructions can help ensure that a jury’s verdict is predicated not only on the case’s facts and evidence but also on how clearly and accurately the instructions are written.

The good news is that jury instructions in Minnesota are understandable and written for the public, which makes sense considering a jury comprises the public, not a clique of lawyers. For instance, the instructions given to the jury in the Derek Chauvin trial demonstrated excellent use of referring to jurors as “you,” a best practice in consumer documents because “you” puts the juror directly in the action. The instructions also used short- to medium-length sentences, focusing on one issue for each sentence. And generally, the instructions eschewed legalese and jargon. Yet the instructions could have been improved in several ways.

First, the court could have made better use of vertical lists or bullet points to show complex ideas, and to break up large text blocks. Because large text blocks are uninviting to the reader, breaking them up into easily digestible bullet points or within a vertical list helps nudge readers to read the important information in the first place.

Second, a principle of plain language and clear writing is not separating the sentence’s subject too far from its main verb. Doing so makes it much harder for the reader to figure what action is occurring in the sentence, as the reader must wait, wait, wait, until the verb appears. Take, for instance, this instruction:

Under Minnesota law, a person causing the death of another person, without intent to cause the death of any person, while committing or attempting to commit a felony offense is guilty of the crime of Murder in the Second Degree.

A clearer revision would move the subject and verb closer and use a vertical list:

A person is guilty of second-degree murder if the person:

(1) without intent, causes another person’s death; and

(2) causes the other person’s death while committing or attempting to commit a felony.

I also removed a few “of” phrases and other redundant information — for example, why say “under Minnesota law” when clearly this is Minnesota?

Another plain-language improvement could be made by not tacking on long exceptions at the end of sentences:

If you find that any of these elements has not been proven beyond a reasonable doubt, the Defendant is not guilty of this charge, unless you find the State has proven beyond a reasonable doubt that the Defendant is liable for this crime committed by another person or persons according to the instruction below on page 8 under the heading “Liability for Crimes of Another.

A rewrite would tighten up this language and remove the three-line exception that starts with “unless”:

The Defendant is not guilty of second-degree murder if you find that the State has not proven each of the four elements beyond a reasonable doubt. But the Defendant is guilty if you find that the State has proven beyond a reasonable doubt that the Defendant is liable for second-degree murder committed by another according to “Liability for Crimes of Another,” on page 8.

Other possible improvements include avoiding vague pronouns such as “it,” using consistent terms (“commission of” versus “commit”), and removing redundant language. Overall, plain-language improvements would make (1) the instructions easier to understand and read, and (2) it more likely that the jury will thoroughly read the instructions in the first place. If courts want the justice system to treat everyone equitably, a good place to start is with juror instructions.

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Ian Lewenstein
Ian Lewenstein

Ian Lewenstein has worked for the Minnesota Legislature and several state agencies. He specializes in administrative rulemaking and plain language. His comments represent his views alone.