Over at a public defender, Gideon has posted his second attempt to create a jury instruction for the meaning of “reasonable doubt,” based on feedback he got from his first attempt, which has a lot of interesting comments.
The discussion is far too technical for me to contribute to, for reasons that Scott Greenfield spells out when describing an attempt he was involved with:
The mandate was to come up with an instruction that was consistent with existing caselaw while being comprehensible on a 6th grade level and across varying ethnicities.
That’s way beyond me. I’m sure I have nothing helpful to contribute to the discussion. But I’ve never really let that stop me from blogging, so…
Take a quick look at Gideon’s proposed instruction. You don’t have to actually read it, but I want you to see what it looks like. Here it is:
The State has the burden of proving the defendant’s guilt beyond a reasonable doubt. Beyond a reasonable doubt is how convincing the evidence has to be to you in order to find an accused guilty of a crime. So what does “beyond a reasonable doubt” mean?
What it means is this: The evidence must fully and firmly convince you of the defendant’s guilt before you may return a verdict of guilty.The evidence must cause your state of mind to be such that you can confidently say that you are certain of the defendant’s guilt. Although the State does not have to prove the defendant’s guilt to an absolute or mathematical certainty, the State must prove his guilt to a state of near certitude in your own minds. In other words, while the law does not require the State to prove a defendant guilty beyond all possible doubt, it is not sufficient to prove that the defendant is possibly or probably guilty.
After considering all of the evidence, you may be fully and firmly convinced that the defendant is guilty of the crime charged. On the other hand, based on the evidence or lack of evidence, you may think there is a realistic possibility that he is not guilty. This realistic possibility must be based on the evidence or lack of evidence and not arising from mere possibility, bare imagination, or fanciful conjecture.
Thus, if you are fully and firmly convinced of the defendant’s guilt, you must return a verdict of guilty. If you find that there is a realistic possibility that he is not guilty, the law demands that you return a verdict of not guilty.
It seems nice enough. It’s clearly written and full of evocative phrases. But when you step back from its context as a jury instruction, I think there’s a larger, more fundamental problem. There’s just something wrong with trying to explain such an important topic with so few words.
Excluding the instruction itself, Gideon’s post runs to 800 words, and he and his visitors added another 2000 words of comments. In an earlier post, he wrote another 900 words, which brought another 1500 words of comment. That post was in response to a 700 word post from Scott Greenfield that had another 700 more words in the comments, and it spawned a 2600-word behemoth post from Rick Horowitz, plus 600 words in the comments. Add it all up, and just these few posts amount to a discussion of reasonable doubt that runs to almost 10,000 words.
Yet if the judge uses Gideon’s proposed instruction, the jury will have to figure out what reasonable doubt means from only 272 words. That doesn’t seem…reasonable.
When it comes to explaining nuanced topics like reasonable doubt, there are well-known teaching techniques. For example, you approach the topic several times from different directions, you emphasize key points, and you hit on those points over and over so they sink in. You explore the context in which the subject arises, perhaps considering why reasonable doubt is an important feature of the justice system, so jurors understand why they’re supposed to apply the standard the way you want them to. And you also drop the discussion into the details, illustrating the rules you want to teach with examples — what counts as reasonable doubt, and what does not. You explore corner cases, and you show how the rules of reasonable doubt are derived from the larger goals of our system of justice.
You try to link the subject you’re teaching to things your students already know. You discuss how certitude and doubt already play roles in jurors’ lives, and you explain how reasonable doubt is related to those levels of doubt. You use analogies, diagrams, and stories.
Then you let them practice. You give them an example scenario, and let them figure out whether there’s reasonable doubt. Have them discuss it with each other and with you. You answer their questions, and ask instructive questions of your own. When you see them applying a principle incorrectly, you explain what they’re doing wrong, and you suggest ways to avoid that mistake in the future.
Finally, you test them. You confront them with a series of problems, and you find out which potential jurors demonstrate competence, which ones need more training, and which ones wash out of the jury pool.
In a nutshell, that’s the kind of training program it takes to get a group of people to become competent at a job. So why don’t we train jurors that way for their job?
In the industrial world, we sometimes prefer on-the-job training. It actually includes a lot of the same processes, but in the context of actually doing the job. Employees start out with simple tasks and work their way up, and competency testing takes the form of a supervisor’s evaluation. That doesn’t seem to be what we’re doing with jurors, however, because there’s no evaluation of juror performance, and they don’t work their way up — your first trial as a juror could be a capital murder or a racketeering case with mountains of complex evidence.
Another possibility is that training jurors is just too costly. That’s not quite the whole story, given the extensive training received by almost everyone else involved in the trial — lawyers, judges, court reporters, bailiffs — all of whom receive weeks, months, or years of training. Of course, the training for all of those people is reusable. Once trained, they can participate in many trials. We don’t do that with jurors. We don’t hold trials using fact finders drawn from a pool of trained professional jurors.
Every once in a while, someone proposes switching to professional jurors, but the general consensus seems to be that we prefer to use jurors drawn at random from the community. The argument is usually that professional jurors would be captured (or corrupted) by the system that employs them, and they would soon become insiders — just another part of the incarceration machine. Jurors plucked from the community take their duty of impartiality more seriously, and they represent the community better because they are a random sample. They remain part of the community from which they are drawn, as opposed to professional jurors, who self-select to join the criminal justice community.
I like this argument, but I don’t know if it’s true. In any case, we end up with jurors who are largely ignorant of the law and the workings of the criminal justice system, and who have to be instructed on reasonable doubt (and everything else they need to know) in the limited amount of time available for trial. Overall, it seems like a very sloppy process, and Gideon’s attempt to write a good jury instruction on reasonable doubt seems like a hopeless dream.
Or maybe that’s the wrong way to look at it. Maybe I should take the jury system more seriously. After all, juries have been used for centuries, and they exist in one form or another in most of the free countries of the world. Maybe jury ignorance is a feature not a bug: Jurors are drawn at random from the community, and the limited instruction is intentional, presumably to encourage jurors to bring their community values into the process.
In that case, the true definition of reasonable doubt is not really up to lawyers or judges or legal scholars. We tell juries they must be convinced of a defendant’s guilt “beyond a reasonable doubt,” and they tell us the verdict. As a practical matter, the meaning of reasonable doubt is whatever the jurors say it is. And since this is the result of the evolved design of the jury system, perhaps this practical meaning of reasonable doubt is in fact the only true meaning of reasonable doubt. Reasonable doubt is whatever the jury does after you give them the reasonable doubt instruction.
I don’t know if you learned anything from reading this, but I feel better now. This way of thinking has a certain elegance, and it makes Gideon’s task seem less hopeless. He doesn’t have to teach a jury everything they need to know about reasonable doubt in 272 words. He just has to get them to use what they already know.