This is the first of several comments on the preliminary drafts of standard jury instructions, being developed by the California Task Force on Jury Instructions, offered for public comment, and posted on the Web at http://www.courtinfo.ca.gov/invitationstocomment/appproposals.htm in two PDF documents, one on criminal jury instructions, the second on civil jury instructions.
The inconvenience of the PDF format for many persons has caused me to render the criminal PDF document crimjinst.pdf into HTML and text, and post the results, along with this and subsequent comments, and revisions thereto, at //constitution.org/jury/pj/pj-us.htm
At the request of Melissa Johnson of the Judicial Council, who asserts a copyright on the draft proposal, and asked me to remove the HTML and text versions of the proposal from our site, I have complied with her request temporarily, but raise the question of whether the Judicial Council is a legal "person" qualified to create and hold intellectual property or assert a copyright thereon, and whether, if it is a taxpayer-funded public entity, it is not barred from asserting a copyright by Government Code §6253, which provides that public records are to be open for inspection, may be copied, and which effectively puts all public documents into the public domain, even if it allows for the nondisclosure of some of them.
This commentator is President of the Constitution Society, a non-profit organization focused on constitutional compliance, the home page of which is at //constitution.org
Most of these comments will be on the criminal jury instructions, because it is in this area that there exists the greatest need for reform, and the greatest potential for confusion and miscarriage of justice.
Comment items will be numbered consecutively within the series of comment messages. I will refer to the groups of instructions that get a number in a series from the Task Force as a "topic", since there may be multiple instructions within a topic, with contingent alternatives.
Projects of this kind are usually submitted for public comment at a late stage in their development, after most of the topics to be covered have been laid out. While I can appreciate the idea of submitting just a few of the topics thus far drafted for comment, the fact is that how one might comment on the drafts presented depends on part on how other topics are covered, including those not presented. Therefore, I would urge the Task Force to present a complete outline and all work done to this point, even if in a very rough form. Despite the reluctance of the Task Force to accept the role of a law revision commission, I submit that that role cannot be avoided to some degree, since the importance of jury instructions to due process and the interest of justice, and the fact that this project will tend to codify them, makes this a law revision project, and the Task Force may just as well embrace that reality, and conduct themselves accordingly.
The author of these comments is mainly familiar with the legal system of another state, Texas, and in reviewing the legal system in California, has been struck by the many inconsistencies and incoherences in California law, which needs revision badly. Those defects have a strong effect on things like jury instructions. The Task Force can do their best to reflect the current state of California jurisprudence in the way they draft standard jury instructions, but they should also be prepared to point out the inconsistencies and incoherences and recommend legal revisions to resolve the defects.
One way in which this situation presents itself is that not all of the penal statutes are represented in the Penal Code. Therefore, although the Penal Code may provide a preliminary guide to setting forth the full array of jury instructions, it is not comprehensive. Further, the Penal Code somewhat simplifies and distorts the statutes in significant ways, and since it is the statutes and not the codes that are the law, providing they are constitutional, a project of this kind must always refer mainly to the statutes and not the code, which is not the law but only evidence of the law. If there is some question concerning whether the statutes are constitutional, this question should be raised and the alternatives presented, so that the standards can work regardless of how a future decision may be made on the constitutional issues.
In reading this draft I was struck by how suitable it would be as a supplement to a standard jury handbook, presented to every person called up for jury duty. The prospective juror should be able to study the general subject of how to prepare jury instructions for him, and there seems no better way than to offer him the jury instruction drafting guide that emerges from this project. Then the first instruction would be to read the handbook with jury instruction drafting guide, so that the remaining instructions could be limited to instructions specific to the case, and the juror could see how those instructions were developed.
The original objective of this project, to make jury instructions understandable to ordinary citizens, has not been successfully accomplished in the draft presented thus far. The instructions are still using "legalese", and if they make an effort to define legal terms in ordinary language, the definitions are still too abstract for most citizens, who are not receiving the background in law that their grandparents and great-grandparents got. The simple fact is that ordinary persons acquire their legal education from examples, because they have difficulty assimilating abstractions. To impart the understanding needed, they need to receive a kind of legal education, complete with concrete cases from which they can generalize. Now one of the instructions in the draft is the common one against consulting dictionaries, statutes, and other legal educational materials, but that is precisely what is needed to make the instructions understandable and the jury process just and effective, and thus the instruction is incompatible with the objective of the project. One or the other must be abandoned.
Indeed, the project objective, properly understood, is incompatible with the current practice of having argument over issues of law being made outside the presence of the jury. This practice, although now established, was not "due process" as it was understood by the Founders when they adopted the Constitution for the United States, and which they intended to continue. In the American states in 1787, cases in which a general verdict was sought, that is, a verdict of "guilt proven" or "guilt not proven", had all issues, except perhaps a few minor issues of administration and scheduling, argued in the presence of the jury, because it was recognized that the jury could not render a general verdict without fully understanding the legal issues, and there was no good way they could acquire that understanding if the legal issues were not argued in their presence, and if they were not allowed to ask questions, and even call their own witnesses and conduct their own investigations of the facts of the case.
This brings us to the instruction that the jury must follow the law as given by the judge, and it raises issues that will be discussed in more detail in later comment messages. It is recognized that the jury is not accountable for how it reaches its verdict, including consideration of the legal issues, yet courts try to constrain them with an instruction that they must follow what the judge says is the law, even if they know better. Such an instruction is futile, and arguably fraudulent, a kind of jury tampering in itself. It is a persistent attempt to exercise more control over outcomes than the situation permits, and that can be considered a clinical definition of an authoritarian personality disorder.
We must keep in mind the reason we have a jury system. It is not just to encourage public participation in the legal system, or to get a judgement that will be more acceptable to the parties. The Founders adopted the jury system because legal professionals, including judges, prosecutors, and law enforcement officers and agents, cannot be trusted to be competent or impartial. If judges cannot be trusted to decide the "facts", then how can they be trusted to decide the "law"? That does not mean the Founders thought randomly-selected citizens are intrinsically more talented or virtuous than legal professionals, but they are moving targets, who appear in the process, do their jobs, and leave it, usually too quickly to be effectively compromised. Legal professionals are stationary, and as such prime targets for the exercise of undue influence. Indeed, by using juries to make the main legal decisions, the legal professionals make themselves less attractive as targets for corruption, and thus protect themselves, the integrity of the legal system, and the confidence of the public in it.
In case the Task Force hasn't noticed, public confidence in the integrity of legal processes and institutions is at the lowest point since 1775, and we should recall the events that resulted from that situation. It is not an image problem, but a problem of substance. If the conditions that support the re-establishment of that confidence are not achieved, the future of civic stability is doubtful.
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