imaginary” or a doubt “that would cause a reasonable
man to hesitate in making an important decision”).
Instructions that caution jurors as to how to use evi-
dence are also problematic. For example, some
research has shown that jurors exposed to eyewitness
testimony cautionary instructions (commonly known
as “Telfaire” instructions) are no more sensitive to the
problems associated with eyewitness testimony than
jurors not given instructions. Periodically, the judge
must instruct jurors to ignore inadmissible information
that they have heard in court or in the form of pretrial
publicity. These types of instructions have been typi-
cally shown to be ineffective. In some cases, jurors
may actually pay more attention to evidence that has
been ruled as inadmissible than if the judge had said
nothing at all about it. This tendency has been termed
the “backfire effect” and may be the result of either a
sense of resistance (i.e., reactance) building up in
jurors because they feel that their freedom to consider
the evidence is being threatened or cognitive factors
causing a person to pay more attention to information
that he or she is actively trying to ignore.Factors Affecting
Instruction Effectiveness
A number of factors have been identified that affect the
overall effectiveness of instructions. Comprehension
issues are a primary problem and result from the lan-
guage used to convey the instructions. As previously
noted, historically, the focus of instructions has been
on stating the law in a legally accurate manner rather
than on creating instructions that are designed to max-
imize comprehensibility. In addition, this problem may
be compounded in complex trials in which difficult
legal concepts must be explained and a greater amount
of instructions must be given. Education level has also
been consistently shown to relate to instruction com-
prehension, with higher instruction comprehension
rates found among well-educated jurors, although a
number of researchers have found that even law
students have difficulty in comprehending the instruc-
tions they are presented with.
As previously mentioned, in certain cases, jurors
may decide to ignore the instructions they are given.
This may happen in cases where a judge rules certain
information as inadmissible. In addition, jurors may
ignore the law and decide that even though a defen-
dant has broken the law (as they understand the law to
be), it would be morally wrong to render a conviction,because the defendant did not violate the spirit of the
law or because the law is viewed to be unjust. This
phenomenon is known as “jury nullification.”
Finally, jurors’ beliefs about the law may also inter-
fere with the effectiveness of instructions. There is
evidence that jurors tend to rely on their own beliefs
regarding the meaning of legal concepts rather than on
the specific instructions they are given. This process is
known as using “commonsense justice.” Jurors may
use commonsense justice in their decision making
because their beliefs regarding certain legal concepts
such as insanity may be particularly strong or because
jurors are forced to rely on whatever relevant concepts
they possess when given instructions that are unclear.Improving the Jury
Instruction Process
Social science researchers have examined a variety of
techniques for improving jurors’ comprehension lev-
els for instructions. The most effective technique
appears to be rewriting the instructions using general
psycholinguistic principles. A variety of research
teams across the United States have successfully
improved comprehension rates using this approach,
with improvement gains between 20% and 30% often
detected. It is unclear whether additional revisions to
instructions would lead to even higher gains.
In the process of revising instructions, researchers
have focused on revisions such as breaking down com-
plex sentences and reorganizing the material using a
more logical structure, in addition to replacing legal
jargon and uncommon words with more familiar lan-
guage and replacing abstract words (e.g., “plaintiff”)
with more concrete terms or specific names (e.g., the
plaintiff’s actual name). Other changes include elimi-
nating negatively modified sentences, using the active
rather than the passive voice, removing prepositional
phrases, and replacing nominalizations (nouns that
have been constructed from a verb) with verbs (e.g.,
change “the thinking of” to “think about”). In the
process of applying these psycholinguistic principles
and improving comprehension, the legal accuracy of
instructions has not been sacrificed.
Jurors typically are given instructions just prior to
deliberations. However, several studies have found that
delivering instructions twice, once at the beginning of
the trial and again after the evidence has been pre-
sented, improves comprehension somewhat. In addi-
tion, delivering pretrial-instructions gives participantsJuries and Judges’ Instructions——— 397J-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 397