Last week, in a blog article in the Huffington Post, screenwriter and columnist Robert J. Elisberg shared his trial diary from a two-week workplace injury case against the retailer Cost Plus. His notes included this observation, which is worth quoting at length: 

One of the oddest things of all is that, very surprisingly, it wasn’t until near the very end of the trial that we even started to even have an idea what we were there to decide on. Really. In most cases, I assume that you know from the opening statements that you’re deciding on guilt or innocence, in a criminal case. Or who improperly turned their car first at an intersection to cause a crash. Or if someone broke a promise. Or whatever is at issue. But in this trial...honestly, we had absolutely no idea what was exactly at stake to be decided. We knew that the defendant Cost Plus admitted fault, so that wasn’t even an issue. And that’s all we knew. We could also presume what was going on. It seemed like what we would have to decide was one of two things (or both) - first, whether the plaintiff actually had [Complex Regional Pain Syndrome] and if so, when it initially occurred, or second (the most likely decision), how much or little money she should get awarded. But even if the latter was the issue - we had zero idea what amount was being asked for by the plaintiff. None.

Unfortunately, that level of mystery on the specific questions that jurors will answer is not as uncommon or surprising as Elisberg thinks. While jurors will more commonly hear damage requests in voir dire or opening statement, it is typical for the jury to hear the specific instructions on the legal claims they'll decide only after they have heard all of the evidence in the case. Obviously, that isn't ideal from the perspective of juror comfort or understanding. In a review of the issue, University of Nevada, Las Vegas Associate Law Professor Sara Gordon (2014) writes that, "Jury research tells us that jurors want to understand the information they hear in a trial so they can reach the correct decision." It should be a simple matter to give them the right instructions -- meaning those necessary to identify and resolve the claims at issue -- prior to hearing the evidence. It isn't, but it should be, and this post looks at why. 

The Problem: Not Often and Not Enough

The article (Gordon, 2014) reviews a long history of research showing that jurors have difficulty understanding the instructions, with some studies reporting comprehension levels that are no better than chance. In the absence of a good understanding of the law, jurors will rely on biases, false expectations, and "street definitions" instead. That problem is magnified when, as in most cases, jurors don't hear those instructions until after the evidence and the closing arguments. While some courts have begun to pre-instruct and eight states require it, in most venues, pre-instruction is at the sole discretion of the trial judge. And much more often than not, any pre-instruction that does occur addresses only broad legal principles like burden of proof, and the fact that what the attorneys say isn't evidence. Gordon notes, "It does not usually include specific instruction about the elements of the crime or claims at issue." 

The Advantage: Pre-instruction Promotes Better Understanding

The advantages to pre-instruction should be obvious. After all, if we are assembling a desk from IKEA, we review all of the instructions before we start trying to fit the pieces together...or at least we should. But the benefits of pre-instruction go beyond that common-sense justification. 

Based on research reviewed by Gordon, the advantage in giving claim-specific instructions prior to evidence is that the instructions hit the jurors when they are in the right mindset for understanding it. Before hearing evidence, jurors are in what is called, perhaps ironically, a "deliberative mindset." A deliberative mindset is one that is, if not neutral, at least open to the possibility of different outcomes. After hearing all the details of the story, however, jurors are more likely to hold an "implemental mindset," which Gordon describes as being one where "they try to fit the law to the story they have created." 

With pre-instruction, jurors don't yet know the story and are only motivated to learn the law. With post-instruction, however, they are likely to only be focused on information that is relevant to the story that is already fixed in their minds. 

It is also easier to understand the instructions at the beginning due to a reduced cognitive load. In other words, it is easier to just focus on the law instead of simultaneously learning the law and fitting it to the facts. Pre-instruction should also make it easier and more efficient to attend to the evidence during trial because jurors will know what they should be looking for and what specific questions they are trying to answer.

Gordon concludes, "Psychology research tells us that this type of pre-instruction can help motivate jurors to get a handle on the applicable law before they become too bogged down in the facts of the trial, allowing them to better understand and remember the evidence they will hear in a trial."

The Frustration: So Why Isn't It Routine?

To those outside the legal system, like Mr. Elisberg, the jury-blogging columnist and screenwriter, it seems like such an odd problem to have: Why on earth wouldn't the finders of fact need to learn about the conclusions they'll be asked to reach prior to hearing the evidence offered in support of those conclusions? To those who work in the legal system, however, it is more nuanced. 

The judges or the parties will often say that there are too many unsettled issues at the start of trial: Who knows how the evidence will come in? Who knows what claims might survive and what claims might be withdrawn? Who knows how the judge might rule on legal issues that will only come up in a specific factual context during trial? 

The answer, though, is that we can know and should know all of that prior to trial. It comes down to better trial management, and some judges require that and others don't. There are complexities, but if we are guided by the question of what best promotes accurate understanding by the jury -- and we should by guided by that question -- then the answer is clear. Pre-instruction makes for jurors who are more comfortable, who hear the law when they are in the right mindset to understand it, who appreciate what evidence means as they're hearing it, and who have a better understanding of that nexus of the facts and the law that lies at the core of their constitutional role.