Simplifying Death Penalty Instructions
In Illinois, Northwestern University law school professor Shari Diamond and linguist Judith Levi conducted a study of how well jurors understood that state's death penalty instructions. They found that by simplifying the language of instructions, juror comprehension increased dramatically. Diamond provided one example from a particularly confusing instruction.
Shari Diamond found that by simplifying the language of instructions, juror comprehension increased dramatically. Photo: Jim Ziv |
"My all-time favorite," Diamond explains, "is the wonderful line in the Illinois pattern jury instructions which contains, and you can count them for yourself, four negatives. 'If you are—one—unable to find unanimously that there is— two—no mitigating factor sufficient—three—to preclude imposition of a death sentence, the court will impose a sentence—four—other than death."
What does that mean?
"It means if you're not unanimous," says Diamond, "the person will not be sentenced to death."
Toothpaste companies test their commercials to see what consumers "take away" from them, Diamond says, but jury instructions used in courtrooms across the country every day are rarely if ever tested.
Several states, including Wyoming, Arizona, Michigan and California, have tried to make instructions more accessible. Curiously, the 2600 member American Judges Association, the largest association of judges in the country, has never addressed the issue. Many judges and prosecutors still claim there's no real problem.
SIDEBAR
Illinois Study Revises Jury Instructions
Shari Diamond and Judith Levi found that by simplifying the language of instructions, juror comprehension increased dramatically. Compare their simplified instructions to the Illinois Pattern Jury instructions.
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Harris County District Attorney Charles Rosenthal says that anyone who speaks and reads the English language should understand the Texas death penalty instructions. I asked him if Texas had ever tested that assumption.
"No, I don't know how you could do that or why you'd want to," responded Rosenthal.
When it was suggested that a simple reading comprehension test given to 1000 potential jurors might tell you whether or not the instructions make sense, Rosenthal had this response, " I don't know if you did that, if you would necessarily get anything, would give you anything scientific that you could rely upon."
Rosenthal said it was not his concern if jurors don't understand instructions. Nor does it appear to be the concern of many other prosecutors and judges.
Next: Part III Juror Bias 
