THE "KETTLEFUL OF LAW" IN REAL JURY DELIBERATIONS: SUCCESSES, FAILURES, AND NEXT STEPS[dagger]

By Diamond, Shari Seidman; Murphy, Beth et al. | Northwestern University Law Review, October 1, 2012 | Go to article overview

THE "KETTLEFUL OF LAW" IN REAL JURY DELIBERATIONS: SUCCESSES, FAILURES, AND NEXT STEPS[dagger]


Diamond, Shari Seidman, Murphy, Beth, Rose, Mary R., Northwestern University Law Review


ABSTRACT-According to standard lore, when jurors are doused with "a kettleful of law" at the end of a trial, they either ignore it or are hopelessly confused. We present new evidence from a unique data set: not mock jury experiments or post-trial self-reports, but rather the deliberations of fifty real civil juries. Our intensive analysis of these deliberations presents a picture that contradicts received wisdom about juries and the law. We show that juries in typical civil cases pay substantial attention to the instructions and that although they struggle, the juries develop a reasonable grasp of most of the law they are asked to apply. When instructions fail, they do so primarily in ways that are generally ignored in the debate about juries and the law. That is, the jury deliberations reveal that when communication breaks down, the breakdown stems from more fundamental sources than simply opaque legal language. We identify a few modest pockets of juror resistance to the law and suggest why jury commonsense may in some instances be preferable to announced legal standards. We conclude that it will take more than a "plain English" movement to achieve genuine harmony between laypersons and jury instructions on the law.

I. JURIES AND THE LAW

The standard story told about juries and the law is that the legal instructions jurors receive at the end of the trial are little more than window dressing-either the jurors simply ignore the instructions or they are hopelessly confused by the legal guidance the instructions purport to give.1 After all, if law students struggle mightily to learn how to think like lawyers and attorneys spend a lifetime in practice arguing about how the law should be interpreted, how can anyone expect to convey complex legal principles to a lay audience with an abbreviated presentation at the end of a trial? The classic image is of the jury "being doused with a kettleful of law during the charge that would make a third-year law student blanch."2 Yet jury trials proceed on the implicit assumption that jurors learn the relevant law from jury instructions.3 Appellate courts follow suit, regularly engaging in a careful parsing of the specific language used in the instructions the jury has been given, assuming, or at least behaving as if they assume, that a legally correct instruction was necessary and sufficient to guide the jury in producing an acceptable verdict.4 This account of court behavior suggests a serious commitment to having jurors apply the law.

An alternative view of jury instructions is that the legal system is ambivalent or even opposed to interfering with juries as they apply their laypersons' sense of justice.5 Indeed, as we describe in detail below, some of the methods and procedures used in drafting and delivering jury instructions suggest at least a softness in the commitment to instructing juries on the relevant law.

Mock jury studies and post-trial surveys have long suggested substantial failures in the instruction process, but they have spurred little action.6 Until now, however, we have had no direct evidence on what real juries actually do with the law during their deliberations. The new empirical research we present here fills this gap and provides a very different image of juries grappling with the law than the one elicited by mock jury studies and post-trial surveys. For the first time, the current research provides a detailed analysis of how jurors discuss the law as they reach their verdicts. The picture that emerges from the deliberations of fifty real civil juries reveals that jury instructions both succeed and fail in unexpected ways. The results suggest that legal jargon is not the primary culprit that threatens juror comprehension and application of the relevant law. Drawing on this new evidence, we identify the previously unacknowledged sources that pose obstacles to the jury's understanding and application of the law and suggest approaches to respond to them.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

THE "KETTLEFUL OF LAW" IN REAL JURY DELIBERATIONS: SUCCESSES, FAILURES, AND NEXT STEPS[dagger]
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.