Riding Jury Instructions to Victory

Riding Jury Instructions to Victory by John L. Kane As trials become increasingly drawn out and complex, a fre- rural postmaster. None was a student of economics. In a post- quent refrain is that juries are incapable of deciding multi-issue trial interview, one juror remarked, “I never did understand cases because the inexorable advances of science and tech- what the term ‘market power’ meant and the judge refused to nology make them far too sophisticated for men and women let me see a dictionary.” of ordinary experience and education to understand. Former Lest we think Brown & Williamson an aberration, consider Chief Justice Warren Burger jumped on that bandwagon say- Arthur Andersen LLP v. United States, 544 U.S. 696 (2005), ing, “Even Jefferson would be appalled at the prospect of a the showcase prosecution in Enron Corporation’s spectacu- dozen of his stout yeomen and artisans trying to cope with lar collapse. Arthur Andersen LLP, Enron’s auditor, had some of today’s complex litigation.” Jurors are not incompe- advised its employees to destroy documents pursuant to its tent. The failure of comprehension lies with us, the lawyers document retention policy. Indicted for obstruction of justice, and judges. It is not the responsibility of jurors to divine mean- Arthur Andersen was convicted, effectively dealing a death ing by stirring the entrails of the legal monstrosities we create. blow to one of the most prestigious accounting firms in his- With strategically timed and sufficient instructions coupled tory. Chief Justice William Rehnquist reversed, holding that with common-sense innovations, a jury can justly decide any the jury instructions failed to convey properly the elements of case. a “corrup[t] persuas[ion]” conviction. It was not wrongful to Brooke Group, Ltd. v. Brown & Williamson Tobacco Corp., instruct employees to comply with a valid document retention 509 U.S. 209 (1993) poignantly illustrates our errors. During a policy under ordinary circumstances, but the government’s trial that involved the Robinson-Patman Act (15 U.S.C. § 13) insistence and the trial judge’s acquiescence in an instruction and lasted more than seven months, the judge did not instruct that changed the statutory definition of “corruptly” by exclud- before or during the testimony. At the close of the evidence, ing “dishonestly” and adding “impede” to the phrase “subvert without providing copies of the instructions to jurors to fol- or undermine” was reversible error. Thus, the Supreme Court low along, he began reading in the morning and did not finish held, the instruction was fatally flawed because it permit- until mid-afternoon. Eighty-one pages of transcript contained ted anyone who even innocently persuaded another to with- such prose as this: “The outer boundaries of a product market hold information from the government to be convicted. The are determined by the reasonable interchangeability of use or instructions also failed to require the jury to find any nexus the cross-elasticity of supply and demand between the product between the “persua[sion]” to destroy documents and any par- itself and the substitutes for it.” ticular proceeding or investigation. Reversing the verdict for the plaintiff, the Supreme Court News media at the time reported that a deadlock was pre- unabashedly opined, “A reasonable jury is presumed to know vented when the holdout decided that one e-mail from an and understand the law, the facts of the case, and the realities in-house lawyer at Andersen obstructed justice by suggest- of the market.” The foreman was a 25-year-old assistant super- ing a memo be changed. If such was the case—that a lone visor at a furniture factory; other jurors were housewives and a juror avoided deadlock by fastening on a single tangential fact in a monumental prosecution with counterintuitive instruc- The Honorable John L. Kane is a senior judge for the United States District tions—could the jury really be blamed? No matter. A Big Court for the District of Colorado in Denver. Five accounting firm that once employed 28,000 people was Litigation Winter 2010 28 Volume 36 Number 2 superficial. The DUI statute was read in its entirety, but no explanation was given of the elements of the crime. No provi- sion was made for taking notes or asking questions. The jury had not the slightest introduction to what it was supposed to do. Like ventriloquist dummies, we sat and waited for some- one to pull the strings. At the close of the evidence and what seemed an eternal recess, the judge read the instructions to us in a stultifying monotone. They were standardized and did not mention any of the people involved in the trial. They included instructions on impeachment and prior inconsistent statements, though none had occurred. No explanation was given that the defendant could be acquitted of DUI but convicted of the lesser included offense of driving while impaired. Nor were we instructed on how to proceed with our deliberations. Neither the prosecutor nor the public defender referred to the instructions in closing arguments. The foreman of the jury selected himself. He took the printed set of instructions from the bailiff and tossed them onto a side table. Announcing that he was a professional truck driver who wasn’t about to convict a person when no accident or colli- sion had taken place, he said, “You could lose your license for that.” When I suggested that we ought at least to look at the instructions, especially the one on reasonable doubt, another juror said, “What for? They’re just words and I don’t understand half of them.” The jury quickly returned a verdict of “not guilty.” I felt there had been a failure of proof, but, as a jury, we had never been informed by the court of what that meant. We gave no more or less attention to the instructions than the judge and the lawyers did. I can’t say that as a judge I have ever been that cavalier about instructions, but that day’s experience was an epiphany for me. To appreciate the depth of the problems the haphazard treat- banned from public audits and reduced to a skeleton crew of ment of jury instructions creates, consider a brief history of 200 employees. One is reminded of the description of an appel- jury instructions. Until quite recently, no one dared state that late court: After the battle is over, it walks about the smolder- instructions were mostly incomprehensible. In the last half of ing field and shoots all the survivors. In this case, there were the 19th century when jurors were not presumed to be literate, no survivors to shoot. and at early common law when literacy was a disqualifica- What are the results of inadequate preparation and use of tion, judges instructed in frank, natural language. As appellate jury instructions on a daily basis in the vast majority of cases courts emerged, an insistence developed that a written record where no appeal is taken? How reckless is it to wait until all of the jury charge be made. Cases were reversed for incorrect the evidence is in and then, in a rush to get the case to the jury, statements of law with the implicit assumption that the jury cobble together instructions at the last minute? This parody of understood and followed them in the first place. This assump- justice is not limited to mega-cases covered ad nauseam by the tion was made explicit in Brown & Williamson. news media. It occurs every day in cases no one ever hears Special verdicts using specific questions leading to a coher- about. Despite their central importance to any trial, jury instruc- ent judgment could have helped solve the problem but were tions are given scant, if any, attention in law schools or litiga- not used. As trial judges are averse to being reversed and tion seminars. They are usually the last thing to be considered. appellate courts insist on control, written instructions began In a pluralistic society where jurors are drawn from all to quibble. It didn’t matter what jurors understood, only that walks of life, ethnicities, ages, and religious and political per- the instruction was a technically correct statement of law that suasions, the only cultural glue that binds them together is the could be taken off the shelf—a law, by the way, blessed with law. Unlike homogeneous societies, in our nation of immi- the fiction that everyone was presumed to know. grants we do not look at life through the same glass darkly. E Justice is achieved by weaving the weft of facts onto the pluribus unum is not only our national motto; it is the essential warp of the law. If not coherently instructed on the law, jurors description of a jury. Without a clear understanding of why necessarily revert to what they can understand: the facts. More- they are in court and what they are supposed to do, it is highly over, what occurs in the sanctity of the jury room is not subject improbable that a heterogeneous group of people can bond to review. How, then, do lawyers and judges ensure that the and reach a decision based on commonly accepted values. jury is given the tools it needs to perform its job? Sometimes, however, sound and just verdicts are rendered by It is now Sunday afternoon, 11 years later. I am at home juries in spite of the judges and lawyers involved rather than in my study reviewing and editing proposed jury instructions because of them. submitted by counsel for a trial set to begin in two weeks.

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