Judging Evil: Rethinking the Law of Murder and Manslaughter

By Samuel H. Pillsbury | Go to book overview

Appendix
Proposed Jury Instructions

Jury instructions occupy a peculiar place in the criminal law. Appellate courts traditionally give jury instructions closer scrutiny than perhaps any other aspect of the trial. Convictions are regularly reversed because of legal misstatements in the instructions or failures to instruct on critical issues. Judicial attention, however, focuses far more on the legal accuracy of instructions—what they mean to the legally trained—than their comprehensibility to laypersons. Courts ask how a reasonable juror would understand the instructions, but as persons deeply familiar with legal terminology and modes of expressionjudges are poorly situated to answer the question.When confronted with studies showing poor comprehension of instructions by laypersons, courts often ignore them, preferring to presume that what seems obvious to the court will seem obvious to jurors as well.1

Nor have jury instructions received the scholarly attention they merit. Scholarly analysis of mens rea doctrine almost always focuses on the language of statutes or appellate decisions rather than the standard jury instructions used by trial courts. This disregards the enormous problem of translating complex legal principles into comprehensible ordinary language. It is as if a diplomat, called upon to give a speech in a foreign language, endures agonies to find the right words in his native tongue but pays no attention to how those words are translated for his audience. It makes no sense.

What follows is a set of proposed jury instructions corresponding to the main issues addressed in part 2 of the book—definitions of mens rea and the offenses of aggravated murder, voluntary manslaughter, depraved heart murder, and involuntary manslaughter. My aim here is to explain the concepts and rules involved as clearly and efficiently as possible. The instructions should be considered a first-draft effort only. Among other shortcomings, they have not been tested on a lay audience to determine their comprehensibility and reliability. They should give some indication of the possibilities of clear jury instructions, however.

-189-

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Judging Evil: Rethinking the Law of Murder and Manslaughter
Table of contents

Table of contents

  • Judging Evil - Rethinking the Law of Murder and Manslaughter iii
  • Contents v
  • Preface the Challenge of Criminal Responsibility vii
  • Acknowledgments xiii
  • Part I - Deserved Punishment 1
  • 1: A Question of Value 3
  • 2: The Value of Choice 18
  • 3: Punishment as Defense of Value 32
  • 4: Just Punishment in an Unjust Society 47
  • 5: Moralizing the Passions of Punishment 62
  • Part II - Defining Murder and Manslaughter 77
  • 6: From Principles to Rules - An Introduction to Mens Rea 79
  • 7: The Worst Crime of All 98
  • 8: Crimes of Passion 125
  • 9: Crimes of Indifference 161
  • Appendix - Proposed Jury Instructions 189
  • Notes 197
  • Index 261
  • About the Author 264
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