Opinion
July 9, 1965
TEN PRACTICAL SUGGESTIONS ABOUT FEDERAL JURY INSTRUCTIONS
Address Delivered at Tenth Circuit Judicial Conference Vail, Colorado — July 9, 1965
The substance of this talk was taken from Mathes and Devitt, Federal Jury Practice Instructions, West Publishing Co., St. Paul, Minn., 1965.
The famous playwright, Channing Pollock, once said that judges' instructions are "grand conglomerations of garbled verbiage and verbal garbage." Maybe there is something to that.
A not uncommon complaint of jurors is that they just do not understand the judge's charge to the jury. They suggest that it is too long, disjointed, repetitious and replete with technical legal terms and Latin expressions. Many times the charge is read with inaudible voice in a sonorous monotone by a judge whose eyes are mechanically glued to reams of paper and dozens of law books. I suggest that the fault lies with judges and lawyers alike.
Herewith are ten practical suggestions about jury instructions in the federal courts for the consideration of us judges and lawyers. Together we can make instructions what they should be — clear, concise, accurate and impartial statements of the law written in understandable language and delivered in conversational tone which will be of helpful guidance to the jurors.
1. Proposed Instructions Should be in Writing
Both the Civil and Criminal Rules require that submitted instructions be in writing. This makes for a good record and safeguards an objection on appeal. It is recommended that proposed instructions be submitted well in advance of their intended use so that the court will have time to study them and check the supporting citations. Some judges will receive well-prepared and documented instructions as a substitute for a trial brief.
Civil Rule 51, 28 U.S.C.A.; Criminal Rule 30, 18 U.S.C.A.
2. Instructions Should be Limited
Only a limited number of instructions should be requested and given. A large number tends to confuse rather than enlighten the jury. Very few lawsuits call for more than 4 or 5 instructions on points of law unique to the issues involved. Many lawyers submit, and some judges may give, repetitive instructions on the same point of law, although phrased in slightly different language. The lawyer reasons that a repetition of his favorite points of law will impress the jury. When counsel on the other side reasons the same way, the judge who subscribes to such suggestions is no more than a talking machine repeating the same points ad nauseam. "Instructions by the acre" serve only to plant confusion in the minds of the jurors.
3. Instructions Should be Objective
It is not uncommon for counsel to submit, and for courts to give, instructions which are phrased in an argumentative vein favorable to the side submitting them. Instructions should be objective, not subjective. It is the court, not counsel, who announces them. The judge is the only non-partisan lawyer in the courtroom, and the jury may properly expect a dispassionate and unslanted statement of the pertinent law from him.
4. Instructions Should be Phrased in Understandable Language
Instructions should be phrased in clear, concise language applicable to the case. Sometimes counsel will quote verbatim from an appellate court decision dwelling on a point involved in the trial and urge it as a proposed instruction. Appellate court opinions are written for a purpose different from that for which jury instructions are designed. The point of law may be controlling, but not the language. It is the legal principle, not the words expressing it, which is pertinent and which will be helpful to the jury. Legal points from decided cases should be couched in language appropriate to the facts and to the parties in the lawsuit.
The use of legal terminology in instructions should be avoided as much as possible. In preparing instructions we should remember that the task is to shed light and not to add to the darkness. The use of some legal terms such as "proximate cause" and "reasonable doubt" cannot be avoided. But to the extent possible, we should use that which Chief Judge Alfred Murrah calls "the common speech of man."
Downie v. Powers, 193 F.2d 760 (10th Cir. 1951).
5. Accurate Citations Should Support Suggested Instructions
Since a suggested instruction is a representation to the court as to the pertinent law, it should be supported with appropriate citations in order to receive the consideration it deserves. It is helpful to many judges who employ a loose-leaf system of organizing their instructions to submit numbered requests on separate sheets of paper with their citations.6. All Pertinent Instructions Must be Given
It is the court's obligation to instruct on all pertinent points of law even though not specifically requested. But, of course, it is counsel's duty to make such requests.
Turner Const Co. v. Houlihan, 240 F.2d 435 (1st Cir. 1957).
Only instructions pertinent to the issues being litigated should be proposed by counsel or be given by the court. No matter how correct the statement of law in a proposed instruction may be, it will serve no purpose for the court to give it if it is immaterial. And here the court must be careful, for to give an abstract instruction, albeit embodying a correct statement of law, may well be prejudicial and grounds for reversal.
Wantland v. Ill. Cent. R. Co., 237 F.2d 921 (7th Cir. 1956).
7. Instructions Should be Given in Logical Sequence
Sometimes a judge's instructions sound like a talking crazy-quilt as he jumps from one subject to another and back again with utter abandon. This is most confusing to jurors. The instructions should be arranged in a logical sequence so that the whole will be intelligible to the jury. Symmetry is as necessary to legal exposition for easy understanding as it is to any other form of literary exposition.8. Pattern Instructions Must be Tailored to the Case
It is urged that you exercise caution when using pattern jury instructions. Very few pattern instructions are intended to be copied verbatim in every case. They are intended principally as an aid to the preparation of an appropriate instruction in the particular case. What is sauce for the goose is not always sauce for the gander. Each case has its own peculiar facts and formalized instructions must be tailored to the facts and issues.
9. Federal Judges Should Comment on the Evidence
A federal judge, in addition to stating the law, may summarize and comment on the evidence. He should do so. This commendable common-law practice, while no longer permitted in the courts of most of the states, is not sufficiently used in the federal courts today.Former Chief Justice Hughes said:
"In charging the jury, the trial judge is not limited to instructions of an abstract sort. It is within his province, whenever he thinks it necessary, to assist the jury in arriving at a just conclusion by explaining and commenting upon the evidence, by drawing their attention to the parts of it which he thinks important, and he may express his opinion upon the facts, provided he makes it clear to the jury that all matters of fact are submitted to their determination." Quercia v. United States, 289 U.S. 466, 53 S.Ct. 698, 77 L.Ed. 1321 (1933).
Of course, we judges must remain completely impartial when commenting on the evidence. Judge Orie L. Phillips, the grand seignior of the federal judiciary, writing the decision in a criminal appeal in the Tenth Circuit, said it this way:
"He should state the evidence fairly and accurately, both that which is favorable and that which is unfavorable to the accused. His statements should not be argumentative, but impartial, dispassionate, and judicial; and they should be so carefully guarded that the jurors are left free to exercise their independent judgment upon the facts." Minner v. United States, 57 F.2d 506, 513 (10th Cir. 1932).
10. The Instructions must be Effectively Delivered
Instructions should be delivered in a loud, clear voice and in a conversational tone, if possible, in order to convey the court's message most effectively. It must be done in serious vein, and with dignity and directly to the jury members and not to the lawyers or bystanders.Some judges are able to give oral instructions and thus establish a closer rapport with the jury than can be attained by a reading of written instructions. This is undoubtedly the ideal to be achieved. In a routine case involving well-established principles of law, the giving of an oral, as distinguished from a written, charge is not so difficult, but in the more complicated lawsuits a reading of at least the vital points of law may be necessary in the interests of accuracy.
Many judges have the happy faculty of reading, but not appearing to read, their instructions and thus achieve the accuracy which reading insures and the effectiveness which oral instructions afford.
Conclusion
So, all in all, the nub of our job is to tell the jury what the pertinent law is so that the members will understand it. This is easier said than done. Always the judge is charged with the duty of making a complete and technically accurate statement of the law, and at the same time of making it understandable to a group of laymen. If he is too attentive to the technicalities of the law, his instructions are likely to lack clarity and force, and hence understanding to the lay ear. Too much concern with establishing an effective communication with the jurors may require sacrificing a complete and accurate statement of the technical aspects of the law and result in a new trial or a reversal by the appellate court.
The measure of the worth of the trial judge in this important facet of his work is his ability to tell the law both accurately and understandably. The judge who does that is a good judge, indeed.
And so, if we judges and lawyers work together in this important aspect of jury trials, we should be able to disprove playwright Channing Pollock's observation that instructions are but "garbled verbiage and verbal garbage" and make them what they should be — clear, concise, accurate and impartial statements of the law written in understandable language and delivered in conversational tone so as to be of helpful guidance to the jury.