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«Law and Human Behavior, Vol. 16, No. 5, 1992 Real Jurors' Understanding of the Law in Real Cases* Alan Reifman, Spencer M. Gusick, and Phoebe C. ...»

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Law and Human Behavior, Vol. 16, No. 5, 1992

Real Jurors' Understanding of the Law in

Real Cases*

Alan Reifman, Spencer M. Gusick, and

Phoebe C. Ellswortht

A survey of 224 Michigan citizens called for jury duty over a 2-month period was conducted to assess

the jurors' comprehension of the law they had been given in the judges' instructions. Citizens who

served as jurors were compared with a base line of those who were called for duty but not selected to

serve, and with those who served on different kinds of cases. Consistent with previous studies of mock jurors, this study found that actual jurors understand fewer than half of the instructions they receive at trial. Subjects who received judges' instructions performed significantly better than uninstructed subjects on questions about the procedural law, but no better on questions about the substantive (criminal) law. Additionally, jurors who asked for help from the judge understood the instructions better than other jurors. Since the results replicate previous research using simulated trials, this study provides evidence for the generalizability of earlier work to actual trials.

The belief that juries in most cases apply the relevant law correctly to the facts in reaching their verdicts has been referred to as an "invariable assumption of the law" (Richardson v. Marsh, 1987). Appellate court judges routinely endorse the idea that juries understand the instructions, and appeals based on juries' mistaken * This study would not have been possible without the cooperation and assistance of the judges, administration, and jurors of the Twenty-Second Circuit Court of Michigan, in Ann Arbor. Special thanks to Judge William Ager, James Inloes, David Walsh, and Corey Pefia for their extensive efforts in facilitating this research. We are also indebted to Judges Patrick Conlin, Ross Campbell, William Ager, Edward Deake, and Melinda Morris for allowing us to send questionnaires to their jurors.

Judge Ager and Samuel Gross made helpful comments on an earlier draft of the manuscript. We are grateful to Daniel Weintraub, of the University of Michigan Psychology Honors Program for his guidance, and to Nancy Exelby for her superior skill and boundless patience. Spencer Gusick is now at the University of Michigan Law School. Alan Reifman is at the Research Institute on Alcoholism, 1021 Main Street, Buffalo, NY 14203. Requests for reprints should be sent to Phoebe C. Ellsworth, Research Center for Group Dynamics, University of Michigan, P.O. Box 1248, Ann Arbor, MI 48106.

t University of Michigan.

0147 7307/92/1000-0539506.50/09 1992 Plenum Publishing Corporation 540 REIFMAN, GUSICK, AND ELLSWORTH interpretation of the law are rarely successful (Parker v. Randolph, 1979; City of Los Angeles v. Heller, 1986; United States v. Lane, n. 13, 1986; Martin v. Ohio, 1987). The appellate bench, however, may be the only place where this invariable assumption is widely expressed.

Among social scientists who have studied jury decision making the opposite assumption prevails: Jurors may be quite competent at sorting out the facts, but they have a very difficult time understanding the judge's instructions and often miss crucial distinctions. Study after study has shown that jurors do not understand the law they are given, often performing at no better than chance level on objective tests of comprehension (Charrow & Charrow, 1979; Elwork, Sales, & Alfini, 1977, 1982; Ellsworth, 1989; Forston, 1975; Hastie, Penrod, & Pennington, 1983; Kaplan & Kemmerick, 1974; Kassin & Wrightsman, 1979; Kerr et al., 1976;

Severance & Loftus, 1982; Smith, 1987). Ellsworth (1989) found that although subject-jurors spent over 20% of their deliberation time discussing the law, only about half of their statements were correct, and one fifth were seriously in error.

Nor did the juries show much progress toward the correct interpretation of the instructions over the course of the deliberation. Although some jurors' mistakes were corrected by other jurors, an equal number of correct statements about the law were abandoned in favor of mistaken ones. The same jurors were generally quite competent in their discussions of the facts; their confusion was specific to their attempts to define and apply the law.

Several reasons for this poor performance have been suggested. The most obvious is the legal language itself (Charrow & Charrow, 1979; Elwork et al., 1982). Rewriting judicial instructions with more conventional vocabulary and sentence structure can significantly increase jurors' recall of the law (Charrow & Charrow, 1979; Elwork et al., 1977; Severance & Loftus, 1982). Even when the language is simplified, however, accuracy is far from perfect, indicating that the convoluted legal language is not the only obstacle to comprehension.

Typically, jurors receive their education in the law by listening to the judge read the instructions aloud--far from the ideal way to absorb complex information. Some states currently require the inclusion of written instructions, while other states specifically prohibit them. In most states, it is up to the trial judge to decide whether or not to provide written instructions. The argument is that the judge is in the best position to determine what form of instructions is most appropriate for the particular case at hand, but in practice most judges either give written instructions all the time, or they do not give them at all.

There is very little research on the consequences of supplementing the oral instructions with a written copy, and the results are mixed. Although jurors seem to like the innovation and feel that it helps them understand, the evidence that it actually does so is weak (Forston, 1975; Hastie, 1983; Heuer & Penrod, 1989).

Another source of poor juror comprehension of the law may be the timing of the instructions. Although attorneys may make piecemeal reference to the law during the trial, it is not until the conclusion of the trial--after the testimony of all the witnesses and the closing statements of the attorneys--that the judge systematically instructs the jurors in the substantive law. Smith (1987) found that jurors


who were given both pretrial and posttrial instructions had significantly greater comprehension of the judges' instructions for the substantive law and were better able to apply their knowledge to the facts of a case than were subjects who received pretrial or posttrial instructions only.

Still another possible shortcoming of current practice is that jurors are rarely told that they are allowed to request help from the judge if they have a question about the law; thus it may not occur to them to ask for guidance when they need it. Even if a jury does request help, such "help" commonly takes the form of a verbatim repetition of the confusing instructions. Empirical research on this question is nonexistent; we do not know whether subjects do better when they are told that they can ask for help, nor do we know which kind of help (repetition, provision of written instructions, restatement, etc.) is most beneficial.

Although empirical research has consistently indicated that jurors have trouble comprehending the law presented at trials, and seems to have defined some of the sources of these difficulties, few changes have been introduced in the way judges instruct juries. Even when appellate courts have cited the research on juror comprehension of judges' instructions, they have consistently held that reform was unnecessary. If anything, recent judicial opinions have been more likely to change the rules governing instructions in ways contrary to the research findings than in ways consistent with them, such as prohibiting written instructions in jurisdictions where they were formerly permitted (Tanford, 1991). Legislatures, state agencies, and special commissions have been somewhat more receptive to research-based reform, but still, movement has been glacial (Tanford, 1991).

Although rapid implementation of social science findings is hardly the norm in the legal system (cf. Ellsworth & Getman, 1987), in some ways the lack of impact of research on juror comprehension of the law is surprising. The basic issue is not politically controversial: no one is arguing that mistaken applications of the law are desirable. The proposed reforms are relatively simple, and neither researchers nor judges who have tried them have reported any negative consequences (cf. Sand & Reiss, 1985).

One reason for this apathy may be that legal policymakers do not trust the research. Judges may be particularly skeptical of social science research that attempts to simulate what judges do or what happens in a real courtroom. They may be reluctant to consider the possibility that the juries they instruct might not do better than random guessing on a test for memory of the law.

Indeed, most of the studies demonstrating jurors' poor comprehension of the law have been simulations, performed in laboratories with mock jurors hearing (or reading) mock cases. Early studies typically relied on students to serve as jurors.

Students are not representative of actual jurors in age, education, experience, or political beliefs. Although more recent studies have commonly used adult subjects who are eligible for jury service, some doubts remain about the representativeness of the samples. An actual jury is not simply 12 people called from tax, election, or motor vehicle lists: Rather, a jury consists of people selected by judges and attorneys through voir dire, a process that eliminates as many as half of all potential jurors. Few researchers have bothered with this expensive procedure. In 542 REIFMAN, GUSICK, AND ELLSWORTH terms of basic theory, and in terms of internal validity, it adds little. There is no reason to believe that the results should not apply to actual jurors; on the other hand, there is little direct evidence that they do.

Questions have also been raised about experimenters' ability to capture the atmosphere of a real trial in a laboratory setting. Certain aspects of a trial are costly, time-consuming, or simply impossible to recreate in an experiment. Actual trials include a judge, attorneys, plaintiffs, defendants, witnesses, court officers, a courtroom, deliberation chambers for the jury, unlimited deliberation time, and jury sequestration, if necessary. Simulations have ranged from extremely schematic to extremely realistic, the most realistic to date being the Hastie et al. (1983) study of the unanimity rule.

No matter how realistic the simulation, however, research ethics typically require that the subjects be aware that it is a simulation, that no one's fate actually depends on their decision. No matter how long simulated juries deliberate (Hastie et al., 1983) or how passionately they dispute the issues (Cowan, Thompson, & Ellsworth, 1984), there is always the possibility that real juries might behave differently; thus our confidence in the generalizability of a laboratory finding is usually greatly enhanced by the demonstration of the same result in a study of real jurors. With respect to juror comprehension of the law, one might argue that a juror who is personally involved in the drama of a real trial might try harder to understand the relevant law and might, therefore, perform better than a subject in a simulation.

Finally, in most laboratory studies, the judge's instructions are the only source of the relevant law, but in real trials, the attorneys also have opportunities to communicate to the jurors about the legal rules. Few good attorneys are content to rely on the judge to transmit the law. Instead, trial manuals advise attorneys to explain the pertinent law during voir dire, during opening argument, and again during closing argument (Belli, 1954; Bailey & Rothblatt, 1974; Imwinkelreid, 1981; see also Tanford, 1983). In real trials, it is argued, all relevant law will be described by the attorneys as well as by the judge, since in the adversarial system both sides will emphasize the information that helps their case. Thus many legal scholars believe that simulations miss the point, because any ambiguities in the judges' instructions are compensated for when the attorneys present their

cases to the jury and instruct them in the law. According to Tanford (1990):

by the time the court reads the finaljury charge, all importantlegal issues shouldhave been explained to the jury in simplifiedlanguage three times by each side [voir dire, opening statement,closingargument].If the lawyerswere minimallycompetent,the jury will have been alerted at the beginningto the importantissues and jurors who cannot comprehendthe law willhave been removed.In argument,the law willhavebeen placed in the context of the facts of the case and probably written in outlineform on a chalkboard. Therefore, most of the suggestionsby psycholinguists[about ways to improve juror understanding]merelyduplicatewhat a competenttrial attorney alreadydoes. (p.

105) The purpose of this study is to test the generalizability of the laboratory demonstrations of poor juror understanding of the law by examining real jurors' ability to recognize the law in the cases they decided. Unlike the subjects in most


simulation studies, these jurors were selected (and instructed) by attorneys during voir dire, were responsible for the fates of the people on trial, and were exposed to the full range of relevant legal information characteristic of a trial the formal judicial instructions as well as whatever informal instruction was provided by the attorneys during voir dire and opening and closing arguments.

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