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Giving Jurors the Law In Plain English


— July 28, 2003

California Supreme Court Justice Marvin R. Baxter remembers when “malice” and “mallet” meant the same thing, at least in one California courtroom.

In 1968, Baxter, then a prosecutor, was trying a murder case. The judge told the jurors that the murder had to be committed with “malice aforethought.” They thought that meant the murder had to be committed with a mallet.

The moral of the story: Juries misunderstand much of the legal terminology that they confront.

Seeking to do something about it, California’s Jury Instructions Task Force has ended six years of work by producing a rewrite of more than 800 civil jury instructions in plain English. Their use will be allowed as of Sept. 1. Criminal jury instructions are being rewritten as well and are expected to be ready by September 2005.

An example of a new instruction cited by the council refers to witnesses who either forget or misstate something. The old instruction said, “Failure of recollection is common. Innocent misrecollection is not uncommon.” The new one: “People often forget things or make mistakes in what they remember.”

That old instruction brings to mind my favorite line from William Faulkner’s Light In August:


Memory believes before knowing remembers. Believes longer than recollects, longer than knowing even wonders.

Anywho . . . . Removing the legalese from those ancient jury instructions sounds like a good idea. (I once drafted a Special Verdict Form in a complex civil case, based on California’s jury instructions, that even I couldn’t understand.) The National Law Journal has the story here.


California Supreme Court Justice Marvin R. Baxter remembers when “malice” and “mallet” meant the same thing, at least in one California courtroom.

In 1968, Baxter, then a prosecutor, was trying a murder case. The judge told the jurors that the murder had to be committed with “malice aforethought.” They thought that meant the murder had to be committed with a mallet.

The moral of the story: Juries misunderstand much of the legal terminology that they confront.

Seeking to do something about it, California’s Jury Instructions Task Force has ended six years of work by producing a rewrite of more than 800 civil jury instructions in plain English. Their use will be allowed as of Sept. 1. Criminal jury instructions are being rewritten as well and are expected to be ready by September 2005.

An example of a new instruction cited by the council refers to witnesses who either forget or misstate something. The old instruction said, “Failure of recollection is common. Innocent misrecollection is not uncommon.” The new one: “People often forget things or make mistakes in what they remember.”

That old instruction brings to mind my favorite line from William Faulkner’s Light In August:


Memory believes before knowing remembers. Believes longer than recollects, longer than knowing even wonders.

Anywho . . . . Removing the legalese from those ancient jury instructions sounds like a good idea. (I once drafted a Special Verdict Form in a complex civil case, based on California’s jury instructions, that even I couldn’t understand.) The National Law Journal has the story here.

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