Dateline: August, 2021, Issue 4

How well are instructions on preponderance of evidence understood by jurors?

In both civil and criminal trials, jurors are instructed about the burden of proof of the parties with pattern jury instructions. Many states have re-written their instructions to try to be more juror-friendly, that is, more comprehensible to people without a legal background.

Boginskaya (2020) explored how well jurors comprehend rewritten and simplified pattern jury instructions about the preponderance of evidence. Two California pattern jury instructions, one being the preponderance of evidence, were audio recorded. The audio recording was played twice to each of 44 native English-speaking undergraduate and postgraduate students who had never before served on a jury. Each research participant was asked to paraphrase separately each of the jury instructions. Explanatory strategies also were employed to clarify the meaning of the instructions to determine if comprehension of the instructions could be improved.

No participant was able accurately to paraphrase all the segments of the jury instructions. Participants were able to remember and paraphrase less than half of the material they had heard.

Only 5% of the participants correctly described the preponderance of evidence as more likely than not the facts presented are true, with the remaining 95% variously describing it as advantage of the evidence (44%), reasonable doubt (31%), strong evidence (14%) and slow pondering of evidence (6%).

Participiants reported their greatest difficulties in understanding the instruction were an unfamiliarity with the legal concept, its abstract nature, and to a lesser extent, the complicated syntactic characteristics of legalese. When unfamiliar terms were replaced with common words and the concept was exemplified, comprehensibility of the instruction improved by 34%.

The legal concept of the preponderance of evidence is not well understood by potential jurors hearing newly simplified pattern jury instructions. When jurors are provided examples of the concept and unfamiliar words are replaced with common words, comprehension of this legal concept improves, although remains poor overall.

Source Boginskaya, O. (2020). The simplification of jury instructions: Legal-lay interactions in jury trials. ESP Today [Journal of English for Specific Purposes at Tertiary Level], 8(2), pp.297-318.