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First “the People” was included in the state’s proposed new criminal jury instructions. Then it was out. Then it was put back in again. It was the first bit of verbal tedium Hastings College of the Law professor Kate Bloch remembers about wrangling the legalese out of the old jury instructions and turning them into plain English, a process that has lasted 8 1/2 years. “I recall lengthy debate early on whether we would use the phrase,” Bloch said. “For the prosecution, there were very strong views about that.” “The People” stayed, but the debates continued among the professors, judges and lawyers assigned to the Judicial Council of California’s Task Force on Jury Instructions. On Friday, the council is expected to approve the task force’s revisions to the instructions in an effort to resolve confusing terminology and awkward phrasing such as “malice aforethought” and “willfully false.” Originally written in the 1930s, the instructions have been frequently revised. If approved by the council, the more than 700 new instructions will become effective on Jan. 1. California judges can still use the old instructions, although they will no longer be updated and will eventually become outdated. The Center for Judicial Education and Research will provide training to help judges with the new instructions. Meanwhile, prosecutors and defense attorneys throughout the state are waiting cautiously to see how the new rules will affect the way they try cases. However, task force chairwoman and First District Court of Appeal Justice Carol Corrigan said the effort was really focused on jurors. Although jurors often do their best, they struggle with antiquated verbiage, Corrigan said. “We want to explain the law accurately, but using language and construction and syntax that’s more understandable to regular people,” she said. “[A juror's] job is already difficult.” Getting agreement on some of the language, however, took lots of work. For example, defense attorneys who tracked drafts of the new rules disliked calling the prosecution “The People,” which appears frequently in current jury instructions. They thought it cast defendants in a negative light. “I think it’s an effort to clothe one’s side with more majesty, grandeur and a closer identification with a jury than the other side,” said Contra Costa County Public Defender David Coleman. “It suggests that the jury, who would presumably think they’re part of “the People,” is allied with one side against the defendant.” Early in the process, the task force changed the phrase to “the prosecution,” believing jurors would understand it better. But the decision irked many prosecutors. “We were amazed by the objection we got,” said U.S. District Judge Florence Marie Cooper, a task force member. “They were so opposed to the instruction � if we were going to make that change � [that] we just decided to go back to ‘the People.’ � It certainly wasn’t worth falling on our sword over that one.” Some of the changes translate legal jargon into everyday English, while others try to simplify long-argued legal definitions. For example, the old CALJIC 2.90 instruction defined “reasonable doubt” as “that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.” The instruction ends on that sentence. While the new instruction doesn’t define “reasonable doubt,” it does define “proof beyond a reasonable doubt” as “proof that leaves you with an abiding conviction that the charge is true.” It ends on language that speaks more directly to jurors: “Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.” Other instructions rip apart the stuffiness of the old rules. In CALJIC 2.21.1, “Innocent misrecollection is not uncommon” becomes “People sometimes honestly forget things or make mistakes about what they remember.” The work that went into the new rules hasn’t stopped some from questioning the results. Some attorneys on the defense side are appreciative of the state’s effort, but still see bias in the new instructions. Oakland criminal defense attorney William DuBois said the explanation of the “reasonable doubt” instruction “has been reduced to almost nonexistence.” Critics argue that the “abiding conviction” phrase invites jurors to make decisions based on their beliefs, not evidence. Courts have debated its use. “[The task force] just left it,” DuBois said. “They didn’t address the tough questions, and there’s a lot of cases that talked about that.” Contra Costa County District Attorney Bob Kochly said he has read drafts of the instructions, but thinks the true impact of the changes won’t be known until they are put into use. “All I can say from my perspective is they have been responsive to some of our concerns and not to others,” Kochly said. “I laud their initial goal, which was to try to put them in more layman’s terms.” Drawing up the new instructions began with a small group researching laws and writing drafts, which were given to a larger group to be refined. Once the entire task force agreed on a draft, it was sent out to judges and attorneys across the state for public comment, Corrigan said. “It has made this product really a product of all the judges and lawyers in the state of California,” she said. Task force member Cooper said she and her colleagues took the feedback and used it to adjust the rules and rewrite others. But they knew they couldn’t please everybody. “Prosecutors, many of them thought the instructions were strongly biased in favor of the defense, and many of the public defenders thought they were strongly biased in favor of the prosecution,” she said. “So we thought we did a really good job.” Cooper hopes the new instructions will help jurors take more interest in their role. “Whether it’s going to ultimately make a better difference at the end of the day, I actually have no idea,” she said. “I happen to think jurors do extremely well with what they’re given to work with. “But hopefully,” she added, “it will make jurors feel better about the system, and make them willing to participate again.” A draft version of the new jury instructions can be found here in PDF format.

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