Model Jury Instructions Commission begins work

March 26, 2009

The Mississippi judicial system needs to update model jury instructions to reflect changing law and technology, and to put the instructions into simpler terms, without the legalese, which lay persons can better understand, Supreme Court Presiding Justice George C. Carlson Jr. told the Model Jury Instructions Commission.

Presiding Justice Carlson, of Batesville, who is chair of the 22-member commission, said the group will work to revise and simplify jury instructions so that they give guidance to jurors about the applicable law in clear and concise language.

The commission created by the Supreme Court met for the first time in Jackson on Thursday, March 26. Members divided into two subcommittees – civil and criminal – and began plans to craft recommendations for a new set of model jury instructions to be used in Mississippi’s trial courts. University of Mississippi School of Law Professor Emeritus Guthrie T. Abbott of Oxford, a former president of the Mississippi Bar, will chair the civil jury instructions subcommittee. Court of Appeals Judge David M. Ishee of Gulfport will chair the criminal jury instructions subcommittee.

The Dec. 30, 2008, Supreme Court order creating the commission said, “The Commission is charged to conduct a comprehensive examination of jury instructions now in use and to recommend to the Supreme Court revised, modified and simplified instructions as needed. Emphasis is to be on instructions which give jurors guidance as to the law applicable to the cases before them in clear and concise language understandable to the jurors without legal training. It is expected that as a result of the work of the Commission there will be created a set of improved instructions for use in both civil and criminal litigation in our courts.” The order did not set a time frame for the completion of the study and recommendations.

Judge Ishee said, “I think one of the most important things is the plain language.” He recalled a conversation with a former client when he was a lawyer in private practice. The man was discussing his experience as a juror. The man’s comment on the jury instructions was, “Those things were so confusing that we just stuck them aside and ignored them.”

Judge Ishee said the education level on a jury can vary greatly. He recalled trying a case to a jury “with a college professor with a Ph.D. sitting next to an eighth grade dropout.”

Presiding Justice Carlson, who attended a national conference on model jury instructions a year ago in Topeka, Kan., recalled a professor’s example of jurors misunderstanding an instruction regarding the standard of proof as being by a “preponderance of the evidence.” He said, “They thought ‘preponderance of the evidence’ was the jury pondered the evidence.”

Jackson attorney Phillip W. Gaines recalled an incident in which jurors in a civil damages suit thought “proximate cause” meant “approximately.”

Presiding Justice Carlson said, “The worst nightmare is to have a verdict – criminal or civil – in which we find out afterwards that the jury did something different than what they intended.”

Advances in communications technology also give trial judges more about which to worry in guarding jurors against outside influences, Presiding Justice Carlson said. Judges frequently admonish jurors not to read newspapers or watch broadcast accounts related to the case. But the capabilities of a juror to do internet research via a Blackberry device or talk about a case via the social media Twitter, even while deliberating in the jury room, are raising additional concerns. He cited a recent appeal filed in an Arkansas civil damages case as a result of a juror’s Twitter messages, and a case in another state in which a juror used a Blackberry to research a disease which was at issue in a case.

“We are going to have to deal with that, probably by way of instructions,” Presiding Justice Carlson said.

Mississippi Judicial College Executive Director Cynthia D. Davis of Oxford and Judicial College Staff Attorney Carole E. Murphey of Batesville have begun research of model jury instructions used in other states and guidelines for drafting plain language jury instructions.

Jackson attorney Lance L. Stevens, representing the Mississippi Association for Justice on the commission, presented a draft of a survey which would ask trial judges to identify problem areas and suggest revisions in civil jury instructions.

Presiding Justice Carlson said the commission at some point will seek suggestions from the judiciary, the bar and the public. He said people who have served on juries can offer helpful insight.

The two lay people on the commission, educator Libby Riley of Quitman and retired pest control company owner Jimmy Murphy of Booneville, had both served on juries.

Murphy said, “I’m looking forward to serving on this commission. Maybe I can bring something to the table.”

Presiding Justice Carlson said Riley’s educational background will be helpful in converting the jury instructions to plain language.

He said, “While the Commission members with legal training will be critical to the assured success of our mission, I envision making a request to the Chief Justice that more lay members be added to the Commission. The experience of our lay members is equally important.”

After the meeting, Presiding Justice Carlson stated, “I was impressed with the energy of the Commission members and their eagerness to begin this task. The success of the Commission’s mission will come through the hard work of the civil and criminal jury instructions subcommittees, chaired respectively by Professor Guff Abbott and Judge David Ishee. All the Commission members are very talented, and each member has a unique perspective on the issues to be considered by the subcommittees.”