The Jury Instruction Process - Apathy or Aggressive Reform?

legal principles and definitions. Such instructions are based on the assumption that a juror can learn the meaning of a word, e.g. conspiracy, from the definition. Leading semanticists generally agree that this is not possible. S. I. Hayakawa, in his work Language in Thought and Action, states: We learn the meanings of practically all our words (which are, it will be remembered, merely complicated noises), not from dictionaries, not from definitions, but from hearing these noises as they accompany actual situations in life and then learning to associate certain noises with certain situations.' 8 In short, we learn words through the factual context in which the word is used. 9 To derive meaning, we must be able to relate the words utilized to our own experiences, as categorized in our memory. As previously pointed out, the restraint upon judicial comment on the facts grew out of a fear of the misuse of judicial power. It is argued that the jury is best able to decide questions of fact, and that any reference to the facts by the judge invades the province of the jury. There seems to be a fear that the judge may lead the jury like sheep. As Lord Bacon advised trial judges, "you should be a light to open their eyes, but not a guide to lead them by the noses." 20 An analysis of this question would tend to support the proposition that some amount of reference to the evidence by the presiding judge would be desirable. Assuming that the judge should be allowed to sort through the evidence and relate the law to the facts of each individual case, should the judge be allowed to comment on the weight of the evidence? Approaching this 'question purely from the instructional-point of view, commenting on the weight of the evidence would add little to understanding the law of the case. In federal courts, wherc the ability to comment on the weight of the evidence is still present, it is submitted that the quality of the judiciary is generally higher than that of the state courts, and this power is only as advantageous as the qualifications and impartiality of the person utilizing it. It would appear that a happy medium could be struck in this area. That is, the judge could be permitted to sort through the facts in order to give factual context to the abstract legal definitions and propositions contained within the instruction, but he should not be allowed to comment on the weight of the evidence or unduly emphasize particular factual evidence. Little has been written on the method of presentation of jury in'8 HAYAKAWA, LANGUAGE IN THOUGHT AND ACTION 57 (2d ed. 1964). 19 For other works which emphasize this point see KoRzYsi, ScIEcC AND SANlmy (4th ed. 1958) ; CHASE, TYRANNY OF WORDS (1959) ; OGDEN & RICHARDS, THE MEANING OF MEANING (1959). 20 Quoted in-Norris v. Clinkscales, 47 S.C. 488, 25 S.E. 797, 805 (1896). 1965] MARQUETTE LAW REVIEW structions, that is, the best manner of orally conveying the law to the jury. To test the effectiveness of present technique, generalizations can be drawn from investigations in the field of educational psychology. The typical courtroom scene of twelve jurors being directed as to the law by the judge can be likened to a classroom scene where a professor is lecturing his students. The lecture method illustrates one means of verbal learning.2 1 It has been often stated that selecting the best manner of oral presentation by the judge to the jury, in order to make the material more meaningful for them, is a problem within the sphere of each individual judge and solely for his concern. It is submitted that this is no more true than the proposition that teaching method is a problem entirely to be dealt with by each individual teacher. The voluminous material on teaching technique illustrates that method is a concern of the teaching profession as a whole. The manner of delivering instructions commonly in existence has been described by one judge thusly: One of the most widespread abuses is the manner in which many judges deliver their instructions. First, there is the experienced judge who has given the same instructions for so many years that he forgets he is giving them for the benefit of those who have never heard them, and reads so rapidly and in such a flat and unmodulated voice that it is difficult for anyone to understand him. The opposite of this is the judge who looks in amazement at the printed words before him and stumbles over them as if it were his first experience with legal phraseology. Probably the least helpful is the judge who mumbles or speaks in such low tones that he cannot be heard, even by the most attentive juror. One of the above types of delivery usually occurs after counsel has pointed out the sanctity of the law and has repeatedly stressed that only by a complete understanding of the instructions by His Honor can the jury render a verdict based upon justice. Then the twelve unfortunate people in the jury box, who have listened to days of testimony and oratorical display by counsel, are suddenly confused and dismayed to hear a delivery of one of the above types.22 A study on voice quality and its effect upon the ability to communicate verbal learning indicates that generally the voice quality of the speaker does not hinder the speaker's ability to transfer information. 3 The research did indicate that simulated breathy and nasal voice quality appear to impede the transference of knowledge. In the case of nasality, the hindrance is only slight. This test can also be cited in considering another question: the ability to comprehend unfamiliar material after one reading. College level students were presented a 21 See AUSUBEL, THE PSYCHOLOGY OF MEANINGFUL VERBAL LEARNING (1963). 22 Cunningham, Instructing Juries, 32 CAL. S. B. J. 127, 133 (1957). 23 Diehl & McDonald, Effect of Voice Quality on Communication, 21 J. oF. SPEECH AND HEARING DISORDERS 233 (1956). [Vol. 49