It's a Matter of Life or Death, So Let's Be Honest About Jury Instructions

Brian Tamanaha

Thousands of courtroom scenes have been depicted on television and in movies, yet rarely--and perhaps never?--will you see one of the most critical moments in a trial: the reading of the jury instructions. There is a sound reason for this omission--jury instructions are long, boring, and often incomprehensible. A minute or so of listening to this would be enough to prompt almost every viewer to reach for the remote. Just raising the topic here, in this post, will send many readers clicking away. Please resist the impulse for a few moments while I provide a reality check about law that is literally a matter of life or death, and which played out as death in a US Supreme Court decision on Monday.

If you have ever wondered where or when or how law comes into play in an actual case, the answer is that the jury instructions are the law. In both civil and criminal cases, the jury is charged with deciding whether the evidence satisfies the legal requirements specified in the jury instructions. Lawyers, for this reason, spend hours fighting over which instructions should be read to the jury and over their precise wording. Appeals are often based on arguments that an instruction read to the jury was erroneous.

Now let's talk about the reality, a reality I observed first hand as a trial lawyer and as a clerk to a federal district judge. The only way to understand this reality is to actually get a taste of a jury instruction. Therefore, with an apology offered in advance, read this actual jury instruction from New York (and feel free to skip to the bottom when it becomes unbearable), setting out the liability of a landlord:

A lessor is required to disclose to the tenant any dangerous condition of the premises, existing when the tenant is given permission, of which the lessor knows or has reason to know and which is not discoverable by the tenant on reasonable inspection. If you find that the condition of the premises at the time plaintiff was given posession was dangerous, that defendant knew of the condition or of facts or circumstances from which a person of reasonable intelligence would believe that such dangerous condition existed, that the condition was not known to plaintiff or discoverable by (him, her) in the use of reasonable care, that defendant failed to warn plaintiff of the condition or advise (him, her) with the facts and circumstances of which defendant was aware, and that the condition was a substantial factor in producing plaintiff's injury, you will find for the plaintiff (on this issue). If, however, you find that no dangerous condition existed on the premises when plaintiff was given possession, or that although there was such a condition defendant did not know of it and did not have reason to be aware of it, or that plaintiff knew of the condition or could have discovered it had (he, she) made a reasonable inspection, or that the condition was not a substantial factor in causing plaintiff's injury, you will find for the defendant (on this issue).

Everyone got that, right?

This is typical of jury instructions in form, style and terminology.

Now imagine that, rather than reading it for yourself, these instructions are read to you by a judge, and imagine that this reading session goes on for one or two or more hours. When sitting through these truly painful sessions as a lawyer or clerk--struggling to concentrate on the instructions as a way to stave off boredom--I have seen jurors yawn repeatedly, close their eyes for a spell (to concentrate, I presume), or simply fix an unmoving gaze at a spot on the opposite ceiling.

You are getting the picture, but the situation is even worse. Although juries often have questions about the instructions, judges are extremely reluctant to elaborate or explain for a reason alluded to earlier: appeals are often based on claimed errors about the precise wording of the instructions. Any elaboration or explanation offered by the judge adds more words, words which can arguably improperly change the meaning of the instruction, generating further issues for appeal. To avoid this problem, many judges will simply re-read the instruction (which no one wants), or read another equally complicated pre-written clarification, or simply tell the jury to figure it out the best they can ("Good luck!").

This is the reality of jury instructions. Obviously, it is hazardous to make any assumptions or draw any conclusions about what a jury does or does not understand with respect to the instructions. As someone who believes in the jury system, I'm not bashing juries, nor denigrating their intelligence. No matter how intelligent, educated, and well-motivated, anyone would struggle to pay attention to and fully comprehend jury instructions in the system we have developed.

So here's the life or death case that rides on this reality. By a 5-4 vote, on Monday, the Supreme Court reinstated a death sentence that had twice been overturned by a federal court of appeals. The disputed issue focused on what a jury understood in connection with an instruction, as explained in a report in the New York Times on the case by Linda Greenhouse:

California's death penalty statute lists a number of mitigating factors that a defendant may invoke, concluding with a "catch all" factor that includes "any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime."

While subsequent California Supreme Court and United States Supreme Court decisions made clear that this factor was more open ended than it appeared to be, permitting evidence that relates to the defendant's character rather than the crime itself, the question in the case was how Mr. Belmontes's jury understood the factor in its unadorned form.

Here is the basic issue: The defendant had undergone a religious conversion in prison, was a model prisoner, and would likely continue to be so, and wanted the jury to consider this as a mitigating factor against imposing the death sentence under the catch all provision. This was indeed permissible. The problem is that the provision is narrowly worded in a way that appears to refer to mitigating factors relating to the crime (not his life as a prisoner). Greenhouse continues:

In overturning his death sentence through a writ of habeas corpus, the United States Court of Appeals for the Ninth Circuit found there was a "reasonable probability" that the jury did not realize that it could take into account Mr. Belmontes's evidence of his likely behavior as a prisoner.

Justice Kennedy's majority opinion said the Ninth Circuit was mistaken. He said that various comments by the trial judge "made it clear that the jury was to take a broad view of mitigating evidence.

Chief Justice John G. Roberts Jr. and Samuel A. Alito Jr. joined in the opinion along with Justices Scalia and Thomas. [An aside interjected by Tamanaha: For whatever it's worth--and I think very little--this majority is made up exclusively of the so-called "Catholic Five" on an issue of major significance for Catholic teachings, and the Justices apparently went against the official Church position.]

In dissent, Justice Stevens said the record showed "that confusion pervaded every aspect" of the sentencing hearing, including the catch-all factor. All participants in the hearing were "addled," he added.

I haven't read the briefs in the case, but knowing the reality of jury instructions generally (as described above), and considering the narrow and potentially misleading wording of this particular instruction, it seems fair to conclude that there must be some doubt as to whether the jury in fact understood that they could consider Belmontes's subsequent behavior in mitigation. There is, furthermore, a great deal of evidence that juries systematically misunderstand the jury instructions in death penalty cases in California, as demonstrated in sobering detail in Craig Haney's book, Death by Design (2005).

Five Justices, based upon little more than reading the actual instruction and several comments by the trial judge, drew an inference that the jury in fact understood the instruction properly. Legally trained judges might well understand these words and comments in this way, but it is an altogether different matter when talking about the understandings of inexperienced lay people sitting for the first and only time as jurors on a death penalty panel. One would think that the benefit of the doubt should go against death--if for no other reason than basic respect for human life--but the Justices apparently were quite confident.

Now Mr. Belmontes is going to die.
Posted 2:12 PM by Brian Tamanaha [link]