Jury Management: 'Do As I Say, Not As I Write'

By The Honorable Joseph J. Farah, 7th Circuit Court, Genesee County

Governor William Milliken was the keynote speaker at my law school graduation many moons ago.  I sat, in cap and gown, as he warned us all against the evils of cynicism.  His message prompted head-nodding from graduates and audience members alike, revealing general agreement about rejecting a cynical outlook on the world.

The next speaker – Professor John Rooney, the award winner for favorite professor – approached the microphone without trepidation, following the State’s highest leader. 
The professor was an iconoclast of the highest order in appearance, thought, and word.  Clearing his throat, a wry smile forming on his lips, he began, “Well, I hope Governor Milliken hasn’t completely turned you against cynicism!”  Subtle laughter progressed into a roar, joined in by the governor.

On August 2, 2016, the Michigan Court of Appeals decided People v Traver, reversing the trial court, which had given final jury instructions only in writing.  Like the evils of cynicism, the two-member majority warned against written instructions only.

Well, I hope Traver hasn’t completely turned you against written instructions.

There is a place for written instructions, and indeed as many as possible, as opposed to oral instructions.  We remember when all instructions were oral; there was no such thing as written instructions during or after trial.  New rules prompted written instructions, albeit in tandem with oral instructions.  Nevertheless, the change was an implicit recognition of the value of written instructions.

This article’s purpose is not to lobby for written instruction supplanting oral instruction; that is a debate for another day.  The purpose here is to encourage consideration of more written instructions.  Not in defiance of Traver (I assure you trial judges do nothing “in defiance” of appellate judges), but, rather, in adherence to it, and to the notion of conveying understandable information to private citizens who are untrained in the law and who would rather be elsewhere.  This article is also with the hope that instructing our juries can continue to be improved in appropriate ways.  It starts with Traver.

To me, three things rise above any debate over the virtues of written or oral instructions.  First, the instructions must be accurate.  While an unremarkable proposition, inaccuracy was at the heart of the reversal in Traver.  Second, instructions must be complete.  Again, unremarkable but significant in Traver.  The point is clear: inaccurate or incomplete jury instructions conveyed by either medium, oral or written, are deficient.  Not even their recitation in the soothing tones of James Earl Jones nor quill pen written on parchment will cure those deficiencies.  Third, trial counsel should always be consulted on the method to be employed, and the instructions themselves.  An agreement as to these issues can forestall reversal, or at least limit it.  In my cases where written instructions were agreed to by counsel, it was because counsel thought the instructions phase of the trial would better serve the jurors, and counsel’s cases, by fewer oral instructions.

Two points, which are hardly irrefutable, can be marshalled for employing more written instructions: 1) the case may be better understood by the jury; 2) it is a time saver.  But if counsel believe the process is better served, a belief discernable only through discussion, counsel’s desire could tip the scale.

As an open-minded proponent of written instruction, I humbly suggest the following:

1. Accuracy and Completeness above all.  (Would reversible error have occurred in Traver, if the instructions were accurate and complete?)
2. Disclosure, Discussion, and Agreement.  (You know about the holes in appellate parachutes.)
3. Record Recitation for Awareness.  (“I’m shocked, I’m shocked!  There are written instructions going on here!”)
4. Oral Instructions regarding the how to decide instructions and burdens of proof.  (Many of these contain lofty principles of law and could mean more if spoken.  Besides, the droplets of rain instruction on circumstantial evidence loses something when just in writing, even in my windowless courtroom on the third floor.)
5. Employ written instructions regarding the elements of a claim, defense, or crime.  Especially so in multiple-count civil cases, multiple-degree criminal charges, and crimes that sound (to a non-lawyer) the same.  (Consider felon in possession of a firearm, carrying a concealed weapon, felony firearm, and armed robbery.)  See number one above.

To me, Traver stands for the non-legal notion that we all continue to strive to improve our jury trial system.  To that end, new methods should be tried appropriately, and age old methods should not be discarded cavalierly.  There is more than one way to instruct a jury.  Alternatives must be faithful to both the demand that our juries decide cases accurately and the hope that our untrained citizenry meshes well in the world of judges and lawyers alike.

Governor Milliken and Professor Rooney would both be proud.

Judge Farah practiced law for 18 years before being appointed to the Genesee County Circuit Court in 1998.  He was originally assigned to the Family Division, handling domestic and juvenile cases until 2005, and is currently assigned to the Civil/Criminal Division.  Along with being a member of the judiciary, Judge Farah has taught a dozen law school classes concerning the law of evidence and has been a regular presenter to lawyers and judges concerning evidence and many other topics.  He is currently a board member of the Michigan Judges Association, Michigan Board of Law Examiners, as well as other groups.