3. Model directions
Updates and background for this project (Digest)
INTRODUCTION
3.1 This chapter examines model directions, which are also known as standard, specimen, or pattern directions. As these labels imply, they are template or sample directions that judges may use to instruct juries after they have been modified to suit the particular circumstances of a case. They have a number of benefits, which are outlined below. There are, however, potential problems in the way they are sometimes used. For example, some judges use model directions without deleting those parts that are not relevant to the particular trial. The focus of this chapter is on the need for model directions that better assist juror comprehension of the law because they are written in language which most jurors would find easy to understand.
NSW model directions
3.2 The Judicial Commission of NSW has published model directions for criminal trials in the Criminal Trial Courts Bench Book (“the Bench Book”). It has been prepared under the direction of the Criminal Trial Courts Bench Book Committee, which includes judges from the Supreme and District Courts, primarily to assist the judges of these courts in the conduct of trials.
3.3 In 2002, the Chief Justice of NSW launched an extensively-revised version of the Bench Book which was made available to members of the public for the first time. The stated purpose of its publication to the public was to enhance further “the contribution of the Bench Book to the efficient administration of criminal justice by ensuring that the legal representatives of all parties are aware of what kind of direction is likely and are able to make submissions directed to adapting the standard directions for the particular circumstances of the case”.1
3.4 In R v Forbes,2 Chief Justice Spigelman explained the legal significance of the Bench Book and its model directions:
It is appropriate to reiterate that the Bench Book does not contain an authoritative statement of the law. Practitioners should not act on the basis that a failure to direct in accordance with the Bench Book is of itself indicative of legal error for appellate purposes. Authority for what ought to have been in the content of a direction in a particular case will need to be identified elsewhere.3
The Court of Criminal Appeal in that case held that a trial juge’s failure to follow the model directions in the Bench Book could not be relied upon as a basis for an appeal.
BENEFITS FROM MODEL DIRECTIONS
3.5 Because the criminal law has become very complex, model directions can be of significant benefit to the trial judge and counsel. First, they are a valuable timesaving device because they reduce the time spent on researching the relevant law, and spare judges from drafting directions from scratch.4
3.6 Secondly, the neutral language used in model directions may decrease the likelihood that the directions given to the jury are more favourable to one of the parties to the case than to another. However, this is not to say that bias may not creep back in, if judges use the model instructions only as a basis for their instructions, especially in cases where the judge may have taken into account the submissions of counsel on the content of a particular direction.5
3.7 Thirdly, model directions have a theoretical advantage in terms of accuracy over directions written under the pressure of litigation. Because they are usually the product of extensive research and deliberation by committees, model directions are less likely to contain erroneous statements of law than directions that are written under time and other pressures associated with the trial.6
3.8 However, model directions have an inherent generality in the way they are written, as they are prepared for use in a wide variety of cases. Hence, they cannot be expected to provide legally accurate directions for every set of circumstances that falls within their coverage. They simply provide the building blocks for the actual directions that the judge gives to the jury.7 The comments of Justice Hayne in a recent case are relevant on this point:
Model directions are necessarily framed at a level of abstraction that divorces the model from the particular facts of, and issues in, any specific trial. That is why such directions must be moulded to take proper account of what has happened in the trial. That moulding will usually require either addition to or subtraction from the model, or both addition and subtraction.8
3.9 In another case, Justice Hayne prescribed the proper way for using model directions:
The proper use of standard forms of jury instructions requires the judge first to identify what are the real issues in the case, then to identify the relevant instructions that are to be given to the jury and then, most importantly, to instruct the jury by relating the standard form of instruction to the real issues in the case. The bare recitation to a jury of the relevant sections of a bench book of standard instructions, unrelated to the real issues in the case, does not fulfil the trial judge’s task.9
3.10 In addition to the benefits canvassed above, model directions have the potential to be advantageous in one important aspect of criminal trials: in assisting jurors to comprehend better the legal directions they need to apply to the case. Trial judges can find it difficult to formulate jury directions that are helpful to jurors because of their overwhelming need to give legally accurate directions and, in particular, to comply with judgments of appellate courts which state the relevant law in language that jurors would find difficult to understand. Model directions can be a means of addressing this problem if formulated in language that reflects the law as established by appellate courts but stated in a way that jurors can easily understand.
COMPREHENSIBILITY OF MODEL DIRECTIONS
3.11 There has been no study, so far, to find out whether jurors are able to understand the current model directions in the Bench Book. In contrast, a number of studies in the United States have tested model directions and found that a substantial number of jurors did not understand them.10
3.12 For example, in a study of selected instructions from California’s Book of Approved Instructions, the subjects obtained a very low score of less than 40% under one measure of comprehension.11 A study of Texas’s model directions yielded very poor results, with the comprehension scores for each of the directions ranging from about 5% to less than 20%.12
3.13 While the American studies are not directly applicable to the Australian context because jury trials are conducted differently in the United States – for example, American judges do not assist jurors to apply the legal directions to the particular facts of the case since counsel for each side perform this function – these studies are nevertheless instructive in demonstrating that jurors may find model directions written in highly technical language difficult to understand.
Improving comprehension through better language
3.14 Some studies have found that rewriting model directions using certain linguistic principles improves juror comprehension.13 In one study, for example, the comprehension rates scored by the participants improved from 51% with the original directions to 80% after the directions were re-written twice.14 Some of the principles that may be helpful in writing better-understood directions are included in the following paragraphs.
Organisation
3.15 The organisation of jury directions determines to a large extent how much information jurors will understand and remember. Hence, one of the most important steps to be taken in rewriting directions is to organise them in the most logical structure possible. Topics that are connected to one another by a common concept may be grouped together. For example, one grouping could include all the directions that explain aspects of how the evidence should or should not be used. Further, the order of ideas may be presented so that each is helpful to understanding the succeeding one.15
Sentence length and complexity
3.16 The length and complexity of sentences affect comprehension and recall. As a general rule, longer sentences are more difficult to understand than shorter ones. However, it is the grammatical and semantic complexity of directions — and not necessarily sentence length or the number of words used — that significantly affects their comprehensibility.16 Hence, directions that contain fewer words are not necessarily more comprehensible.17
Active/Passive Voice
3.17 As a general rule, it is better to use the active rather than the passive voice. However, the passive voice is effective in certain instances, such as when there is a need to explain the object of the sentence further.18 Take, for example, the following passage from an instruction on expert witnesses:
Of course, the opinions expressed by [GH] based on [his/her] own observations or knowledge and experience (as distinct from those based on facts related by others or assumptions) are to be assessed by you.19
By turning the principal verb into the active voice, the sentence can appropriately retain the other passive phrases to explain the object of the sentence, thus:
Of course, you must assess the opinions expressed by [GH] based on [his/her] own observations or knowledge and experience (as distinct from those based on facts related by others or assumptions).
Negative sentences
3.18 A negative sentence is one that has one or more words using negators (for example, not, never, less than, few) that modify the meaning of the entire sentence. As a general rule, jurors understand and remember affirmative sentences better than negative sentences.20 For example, it is usually better to tell jurors what to do rather than what not to do.21 However, there are situations where negative sentences are appropriate. For example, where a series of directions expressed in the positive form are given to the jury, a warning against using certain evidence in a prohibitive way may need to be emphasised by expressing it in the negative form. Double negatives are particularly problematic and should be avoided whenever possible.22 In explaining the standard of proof, for example, it is often easy to lapse into a confusing use of negatives:
In other words you should ask yourselves whether there is any reasonable possibility that the accused did not do what the Crown alleges against him/her. Unless the Crown satisfies you that no such possibility exists you must find the accused not guilty.23
Legal jargon and uncommon words
3.19 Legal jargon is a common way of expressing precise legal meanings among judges and lawyers but is often completely foreign to jurors. Some social scientists consider the use of legal jargon and unfamiliar words as “one of the worst (if not the worst) problems with [jury instructions] and is responsible for causing a great deal of confusion”.24 An example of the use of uncommon words can be found in this explanation of the right to silence:
It is important therefore that you bear in mind that no inference adverse to [the accused] can be drawn from the fact that [he/she] took note of the caution administered by the police and chose to remain silent.25
Homonyms
3.20 These are words with more than one meaning. They should be avoided whenever possible because they can be a source of confusion for jurors. In one American study many participants thought that the phrase “material allegation” referred to allegations relating to physical evidence. A number of them also believed that the word “Bar” referred to a drinking establishment.26 The following example has attempted to get around such a problem with respect to the word “immediately” by employing a further technical legal term (“remotely”) to distinguish it from its purely temporal meaning. The force of the term “remotely” is unlikely to be appreciated by a non-legal audience:
The Crown must establish, secondly, that the accused did some act towards committing the intended crime which was immediately (rather than remotely) connected with committing that crime, and which cannot reasonably be regarded as having any purpose other than to commit that particular crime.27
Synonyms
3.21 The indiscriminate use of synonyms to avoid repetition or for other stylistic reasons may cause confusion because the jurors might assume that the use of a different word is an intentional attempt to distinguish between shades of meaning.28
Antonyms
3.22 The use of antonyms formed by the addition of negative modifiers (eg, polite-impolite) should be avoided because research has shown that such antonyms are more difficult to understand and remember than those with a different root (eg, polite-impolite-rude). Hence, it is better to use “ignore” instead of “disregard”, which is a negation of the word “regard” and is commonly used in jury directions.29 An example can be found in this suggested explanation of judicial comment on the evidence in the summing-up:
If I happen to express any views upon questions of fact, you must disregard those views, unless they happen to agree with your own independent assessment of the evidence.30
Movement towards plain English directions
3.23 A number of overseas jurisdictions have rewritten their model directions in plain English to make them more understandable to jurors. The largest such project was undertaken in California. In 1997, the Chief Justice of California appointed a 29-member Task Force on Jury Instructions to write legally accurate jury directions in plain English. The civil subcommittee of the Task Force, which consisted of 18 legal professionals, with the assistance of hundreds of California lawyers who were involved in reviewing various drafts, completed a new set of 800 directions for civil cases in 2003.31
3.24 Below are sample directions from the old set of directions, the Book of Approved Instructions (BAJI), and their equivalent directions from the new set of directions called the Judicial Council of California Civil Jury Instructions (CACI).32
3.25 BAJI 2.00 reads:
Circumstantial evidence is evidence that, if found to be true, proves a fact from which an inference of the existence of another fact may be drawn. A factual inference is a deduction that may logically and reasonably be drawn from one or more facts established by the evidence.
The counterpart provision in the CACI (number 202) reads:
Some evidence proves a fact directly, such as testimony of a witness who saw a jet plane flying across the sky. Some evidence proves a fact indirectly, such as testimony of a witness who saw only the white trail that jet planes often leave. This indirect evidence is sometimes referred to as “circumstantial evidence.” In either instance, the witness’s testimony is evidence that a jet plane flew across the sky.
3.26 BAJI 2.21 reads:
Failure of recollection is common. Innocent misrecollection is not uncommon.
The second sentence in BAJI 2.21 contains triple negatives that make the direction confusing and difficult to understand. The counterpart CACI (number 107) avoids these negatives and uses simpler language:
People often forget things or make mistakes in what they remember.
3.27 In 2005, the Judicial Council of California approved more than 700 new jury directions for use in criminal cases. A committee of between 15 and 18 legal professionals spent hundreds of hours and took eight years to finish the new directions.33 An example of this work relates to a portion of the old model direction for attempted murder, which stated:
The law does not undertake to measure in units of time the length of the period during which the thought must be pondered before it can ripen into an intent to kill which is truly deliberate and premeditated.34
The rewritten direction provides:
The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated.35
3.28 The directions on presumption of innocence, reasonable doubt and onus of proof provide another example. The old directions stated:
A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether [his] [her] guilt is satisfactorily shown, [he] [she] is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving [him] [her] guilty beyond a reasonable doubt.
Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.36
3.29 The rewritten directions are longer but in simpler and clearer language:
I will now explain the presumption of innocence and the People’s burden of proof. The defendant[s] (has/have) pleaded not guilty to the charge[s]. The fact that a criminal charge has been filed against the defendant[s] is not evidence that the charge is true. You must not be biased against the defendant[s] just because (he/she/they) (has/have) been arrested, charged with a crime, or brought to trial.
A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt [unless I specifically tell you otherwise].
Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.
In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant[s] guilty beyond a reasonable doubt, (he/she/they) (is/are) entitled to an acquittal and you must find (him/her/them) not guilty.37
3.30 Apart from California, other American jurisdictions that have adopted model directions having a plain English emphasis include: Alaska, Delaware, Michigan, Minnesota, Missouri, and North Dakota. Several other states, such as Arizona, Florida, Vermont, and Washington, are rewriting directions specifically with the aim of using plain English.38
NSW model directions
3.31 The model directions in the Bench Book may contain language that is very difficult to understand. They may contain legal jargon and many words and phrases that are unfamiliar to most people. The studies discussed above have indicated that the use of legal jargon and unfamiliar words is the most common and serious cause of jurors’ difficulty in understanding directions. Further, many of the sentences39 may be too long. Their structures may be complex because they contain too many clauses that embody ideas that repeat, qualify, add to or negate the other clauses in the same sentence. The complex structures of the sentences may make the directions quite confusing and difficult to follow. If the directions are difficult to understand through reading, jurors are likely to find them even more difficult to follow, understand and remember when a judge is reading them out.
3.32 One of the reasons for difficult language in model directions is the desire to be legally accurate. To prevent possible appeals, directions use the language found in case law and statutes. Directions therefore contain complex legal rules and explain concepts in legal language that is foreign to jurors. Efficiency in terms of time-savings and legal accuracy overshadow the aim of ensuring that jurors properly understand the relevant legal rules and concepts.
A need to rewrite the model directions in plain English?
3.33 The Commission considers that jury directions should use language that jurors can understand. This is a key element in enabling juries to make well-informed decisions. Courts have underlined the importance of recognising jurors as the main audience of directions,40 as well as the desirability for judges to use easily understood, unambiguous and non-technical language.41
3.34 The issue arises whether the NSW Judicial Commission should review the model directions in the Bench Book to ensure that jurors can understand them. A further question then arises as to which directions need to be rewritten and how best to do so.
3.35 If a rewrite is to occur, the Judicial Commission would need to consult widely, including with people who have expertise in communication, linguistics and psychology, as well as other lay people who may be able to help make the model directions more comprehensible. It may also be useful to conduct empirical tests on the draft directions to ensure that jurors will understand them readily. It is, of course, very important to make sure the new directions are also legally accurate so that they can survive challenges before appellate courts.
3.36 Related issues are how to encourage judges to use model direction regularly; what their status should be; and whether this should be identified in legislation or rules of court.
ISSUE 3.1
(1) What model directions contained in the Criminal Trial Courts Bench Book, if any, should be rewritten to make them more understandable to jurors?
(2) What process should a review of the Bench Book follow?
ISSUE 3.2
(1) How can judges be encouraged to make wide use of model directions?
(2) What should be the status of the directions in the Bench Book and should that status be identified in legislation or rules of court?
Footnotes
1. Judicial Commission of NSW, Criminal Trial Courts Bench Book (October 2008) Foreword.
2. R v Forbes (2005) 160 A Crim R 1; [2005] NSWCCA 377.
3. R v Forbes (2005) 160 A Crim R 1; [2005] NSWCCA 377, [72]-[73] quoting the Foreword to the Bench Book.
4. See R G Nieland, “Assessing the Impact of Pattern Jury Instructions” (1978) 62 Judicature 185, 187-188.
5. W W Schwarzer, “Communicating with Juries: Problems and Remedies” (1981) 69 California Law Review 731, 738.
6. See, however, R G Nieland, “Assessing the Impact of Pattern Jury Instructions” (1978) 62 Judicature 185. The model instructions in Illinois had little effect in reducing the total number of appeals.
7. D Watt, Helping Jurors Understand (Carswell, Toronto, 2007) 81-82.
8. HML v The Queen (2008) 245 ALR 204; [2008] HCA 16, [120].
9. Tully v The Queen (2006) 230 CLR 234; [2006] HCA 56, [93].
10. R Charrow and V Charrow, “Making Legal Language Understandable: A Psycholinguistic Study of Jury Directions” (1979) 79 Columbia Law Review 1306; W W Steele and E G Thornburg, “Jury Instructions: A Persistent Failure to Communicate” (1989) 67 North Carolina Law Review 77; A Elwork, B Sales and J Alfini, Making Jury Instructions Understandable (1982) 45; A Reifman, S M Gusick and P C Ellsworth, “Real Jurors’ Understanding of the Law in Real Cases” (1992) 16 Law and Human Behavior 539.
11. R Charrow and V Charrow, “Making Legal Language Understandable: A Psycholinguistic Study of Jury Directions” (1979) 79 Columbia Law Review 1306.
12. W W Steele and E G Thornburg, “Jury Instructions: A Persistent Failure to Communicate” (1989) 67 North Carolina Law Review 77.
13. A Elwork, B Sales and J Alfini, Making Jury Instructions Understandable (1982) 45; R Charrow and V Charrow, “Making Legal Language Understandable: A Psycholinguistic Study of Jury Directions” (1979) 79 Columbia Law Review 1306; L Severance and E Loftus, “Improving the Ability of Jurors to Comprehend and Apply Criminal Jury Instructions” (1982) 17 Law and Society Review 153.
14. A Elwork, B Sales and J Alfini, Making Jury Instructions Understandable (1982) 45.
15. R Charrow and V Charrow, “Making Legal Language Understandable: A Psycholinguistic Study of Jury Directions” (1979) 79 Columbia Law Review 1306, 1317-1318.
16. A Elwork, B Sales and J Alfini, Making Jury Instructions Understandable (1982) 150-167; See also R Charrow and V Charrow, “Making Legal Language Understandable: A Psycholinguistic Study of Jury Directions” (1979) 79 Columbia Law Review 1306, 1317-1318, 1326-1327
17. See, eg, the rewritten Californian pattern instructions on the presumption of innocence, reasonable doubt and the onus of proof, which are longer than the old directions but in simpler and clearer language: para 3.28-3.29.
18. A Elwork, B Sales and J Alfini, Making Jury Instructions Understandable (1982), 175-176.
19. Judicial Commission of NSW, Criminal Trial Courts Bench Book (October 2008) [2-1110].
20. R Charrow and V Charrow, “Making Legal Language Understandable: A Psycholinguistic Study of Jury Directions” (1979) 79 Columbia Law Review 1306, 1324-1325.
21. A Elwork, B Sales and J Alfini, Making Jury Instructions Understandable (1982) 45, 172-173.
22. For an example of a direction containing several negatives and its rewritten version, see para 3.26.
23. Judicial Commission of NSW, Criminal Trial Courts Bench Book (October 2008) [3-600].
24. A Elwork, B Sales and J Alfini, Making Jury Instructions Understandable (1982) 177.
25. Judicial Commission of NSW, Criminal Trial Courts Bench Book (October 2008) [4-110] (emphasis added).
26. A Elwork, B Sales and J Alfini, Making Jury Instructions Understandable (1982) 45, 179-180.
27. Judicial Commission of NSW, Criminal Trial Courts Bench Book (October 2008) [2-250] (emphasis added).
28. A Elwork, B Sales and J Alfini, Making Jury Instructions Understandable (1982) 180.
29. A Elwork, B Sales and J Alfini, Making Jury Instructions Understandable (1982) 180.
30. Judicial Commission of NSW, Criminal Trial Courts Bench Book (October 2008) [7-020] (emphasis added).
31. See Judicial Council of California, “New Plain-English Jury Instructions Adopted to Assist Jurors in California Courts” (Media Release No 42, 2003).
32. California Courts, “Plain English Examples” in Guide to California Jury Service: Civil Jury Instructions Resource Center «http://www.courtinfo.ca.gov/jury/civiljuryinstructions/plain_english.htm» at 5 November 2008.
33. “California Jury Instructions Translated into Plain English” (September 2005) California Bar Journal (online).
34. CALJIC (California Jury Instructions, Criminal) 8.67.
35. CALCRIM (Judicial Council of California Criminal Jury Instructions) 601.
36. CALJIC (California Jury Instructions, Criminal) 2.90.
37. CALCRIM (Judicial Council of California Criminal Jury Instructions) 103.
38. American Judicature Society, “Plain-English Jury Instructions” «http://www.ajs.org/jc/juries/jc_improvements_plainenglish.asp» at 14 November 2008.
39. For example, those in the directions on circumstantial evidence, provocation and self-defence.
40. See Doggett v The Queen (2001) 208 CLR 343; [2001] HCA 46, [2] (Gleeson CJ).
41. See R v Forbes (2005) 160 A Crim R 1; [2005] NSWCCA 377, [79] (Spigelman CJ).
