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staff reporter carol a. corrigan: Jurors often misdefined words, she said. Lauchheimer’s e-mail address is [email protected]. 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. A ‘civil right’ 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.” Besides a simpler vocabulary, the task force’s instructions avoid the use of double negatives, and strive to use the active voice. It aimed to keep the instructions at the reading level of a student in the 10th grade. California is among a handful of states that have rewritten their jury instructions for clarity’s sake. Others include Arizona, Delaware and Alaska. “Plain language is a civil right,” said Annetta Cheek, a member of Plain Language Action and Information Network, a governmentwide group of volunteers working to improve communication between the federal government and the public. Under a state law, judges will be allowed to use either the new instructions or the old Book of Approved Jury Instructions. The old instructions, said Justice Carol A. Corrigan of the 1st Appellate District in San Francisco and chairwoman of the task force, “were so abstruse so as to be beyond understanding.” The old instructions used Latin and Norman French phrasing and a difficult vocabulary. Corrigan said that jurors often mis-defined words because they wrongly thought they recognized them. Proximate meaning Once, when instructing a jury, she used the phrase “proximate cause,” and some jurors thought she meant “approximate.” “Most jury instructions can be printed in Cyrillic and spoken in Greek,” when it comes to comprehensibility, said Judge Alan Buckner of Los Angeles Superior Court. There are those who plan on using the old instructions under certain circumstances out of a fear of being reversed on appeal. “In a difficult case, I would use the old instructions, because we know that they have been tried and tested by the appellate courts,” said Judge Aurelio Munoz of Los Angeles Superior Court. Justice Paul H. Coffee of the California 2d Appellate Division in Los Angeles believes that having a case overturned is a concern among judges, but that it is being exaggerated. “Our entire profession is driven by precedent, so it’s understandable, but that’s why we have the appellate level,” he said. Joseph Kimble, a professor at Thomas M. Cooley School of Law in Lansing, Mich., said that, although appeals may occur, if the new instructions mirror the old ones, they will withstand challenges. Stephen A. Saltzburg, a professor at George Washington University Law School, co-authored plain-English jury instructions for Alaska 25 years ago. He said that “the process of rewriting sharpens the instructions.” Despite the notion that only jurors have a hard time understanding jury instructions, Saltzburg said that when he discussed Alaskan jury instructions with lawyers, even they did not always know what the instructions meant. Although he has not followed the appeals court year after year, Saltzburg has not heard of any cases being overturned because of a faulty jury instruction, he said. Lauchheimer’s e-mail address is [email protected].

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