After calculating the reading level of the jury instructions, I researched literacy profiles for Arkansas and the nation and compared these literacy levels with the grade level of the instructions. I found my suspicion confirmed: Jury instructions were written above the reading capability of most Arkansans. The formulas I used all show that the level for Arkansas' and the Eighth Circuit's jury instructions hovers around the 12th grade. In actuality, I believe this underestimates their difficulry because mere syllabic. word and sentence counts do not address the instructions' specialized subject manee. L1wyers study three years beyond college co master the concepts and terminology we expect ordinary citizens
assessments are unreliable: While jurors profess to comprehend instructions, further questioning reveals that rhey do nor. 12 (There probably are [VIO reasons for this: Peoplc dislike admitting that they arc not skilled in their native tongue, and they may not realize thar they are misinterpreting the meaning of the words used. In other words, they think they understand when they do not.) This conclusion was reinforced by candid comments I elicited from thc former jurors I interviewed. For instance, jurors apparendy disregard the definition of "proximate cause" and interpret it to mean "approximate cause." This should nor be surprising. Those of us who remember our early law school days would do well to
Once an instruction has the appellate imprimatur of approval, it becomes gospel and subject to continued use without the slightest change, not to mention simplification. As a result, the instructions end up being written on a difficulty level equal to the Harvard Business Review -- when they should be on a par with Sports Illustrated.
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to grasp and apply virtually instantaneously. The unfamiliarity of the general public with legal concepts makes comprehending the ideas embodied in the instructions even more elusive. Adult literacy estimates for the United States, based on the 1990 census, show that 21 percent of the population have basic or "level one" reading and writing skills. Twenty-six percent possess "level rwo" skills. 9 These levels are prose levels. "Prose level one" requires me reader ro locare and match a single piece of information that is identical ro, or nearly identical ro, the information given in the rext. "Prose level [WO" requires me reader to locate one or more pieces of information from the text and to compare and contrast information. "Prose level three" requires readers to search the text to match information and make low-level inferences. "Prose level four/five" measures how well readers perform multiple-feature matching, use specialized knowledge, and make rexr-based inferences from more absrract rext sources. While literacy statisrics for Arkansas have nOt been compiled, census information concerning grade-level attainment by Arkansas adults indicares that literacy estimates for Arkansas aduJts would not be higher and, in Fact, may be worse than the national average. IO Approximately 14 percent of Arkansans have less than a 9th-grade eduC3rion; 19 percent have benveen a 9rh- and 12thgrade education; 33 percent have a high school diploma; and 19 percent have some college education, bur no degree. I I If more than "level two" skills are necessary to understand and apply the pattern jury instructions, then a majority of Arkansans, because they perform at "level one" or "levellwO," do not have these skills.
reflect on the time we spell( mastering legal vocabulary and the conceprs differenr words signified. To expect a layperson, even an educated one, to grasp sophisticated legal doctrine as reflected in terms like "proximate cause," "negligence" or "wil1ful and wanton" (I could go on and on), especially after only one reading of the instructions, is unrealistic. 13 I spoke with the Honorable David B. Bogard, Pulaski Counry Circuit Judge, who, as a member of the Arkansas Supreme Courr Committee on Jury lnstructions, participared in drafting the Arkansas Model Jury Insrructions, Civil, and the Honorable James M. Moody, District Judge of the Eastern District of Arkansas, and a member of the Commitree on Model Jury Insrrucrions for the Eighth Circuit. They express doubts abour juror comprehension. Both judges have many years of experience as trial lawyers and jurists. Judge Moody voices concern that a portion of the jurors do nor understand the instructions, and that because of this, those jurors who do understand playa disproportionarely dominant role in deliberations. This, he does nor believe, is a desirable outcome, since all jurors should participare equally in the process. Judge Bogard states flatly that he does not think jurors understand certain instructions, such as the Arkansas Model Instruction on comparative negligence. He acknowledges thar scanr attention is paid to juror comprehension. Committee members, who are judges and lawyers, are preoccupied solely wirh authoring correct and comprehensive statements of the law. One of the foundations of our legal system, and a cherished notion, is that of juries deciding the fate of litigants based on the
If a 12th-grade education is needed to understand and apply them, then the 33 percent who have a 12th-grade education or less do not have necessary skills. Asking jurors is nor a sufficient means by which to determine whcther they undersrand rhe instructions because the answers are apt co be misleading. Surveys of jurors reveal thar their self-
law as applied to the evidence. The specter of juries finding defendants guilty of crimes, defendants liable for sums of money under civil law, or plajntiffs denied recovery based on a faulry comprehension of the law is deeply disconcerting-as is the idea thar a portion of every jury does nor participate in deliberation because they do nor understand the instructions. Others have Vol. 37 o. 41Fall 2002
The Arkansas tal'Y"r
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