New York Law Journal | January.30.2019
Researchers argue that attention spans are shorter than ever. They contend that a goldfish retains interest in a stimulus longer than the average Internet user. See Dr. K. R. Subramanian, “Myth and Mystery of Shrinking Attention Span,” Int’l Journal of Trend in Research and Development, Vol. 5(3), 5, (June 2018). Elevator pitches once lasted the average length of a New York lift—118 seconds; now, the same colloquial term references a 30 second spiel. Id. at 5. Television commercials are half as long today than in the 1950s and 60s—from one minute to 30 seconds. Id. Regardless of whether the result is due to causation or correlation, the modern-day human being is reported to have only two-thirds (five minutes) of the attention span evidenced less than two decades ago (12 minutes). Id.
As attention spans shorten, many businesses have evolved to compensate. Various U.S. industries have embraced new strategies to re-capture their consumer’s attention. Leaders in information technology, like Microsoft, have found that intermittent, burst trainings lead to increased rates of retention and transfer. Id. at 4. Even the wildly popular TED Talk concerns itself with retaining viewership and requires presenters to deliver life-changing mantras in under 18-minutes. See Neil A. Bradbury, “Attention span during lectures: 8 seconds, 10 minutes, or more?,” Chicago Medical School, Adv. Physiol Educ. 40: 509 (Oct. 19, 2016). Unfortunately, jury instructions given during trials have not evolved in the same manner.
The difficulty of absorbing information is acutely experienced in the criminal justice system. It is probably not an overreach to hypothesize that the criminal federal judicial system is not as current and innovative as other industries. As a result, the processes by which courts instruct juries remains antiquated, overly complex, and often, quite frankly, boring. As anyone with trial experience is keenly aware, between the closing arguments and the deliberations, judges take jurors on a pseudo crash course through law school. However, law students receive an entire semester of guidance to become versed in the intricacies of substantive law (approximately 48 in-class lecture hours in addition to in-home studying), whereas jurors receive complicated instructions, that cover wide ranging topics, and take between 90 and 120 minutes to disseminate.
And what do we expect from jurors? We expect them to listen to, process, retain, and apply a burdensome breadth of information throughout the course of a trial. We demand they understand at least two different legal theories, digest all testimony and documentary evidence, contemplate issues like credibility, truthfulness, bias, and more. If that was not enough pressure, we require them to almost instantaneously understand dense legalese that attorneys have had the luxury to research and study for hours, and in many cases, years. While concerns about whether jurors understand the laws they must apply arise in all trials, it is perhaps most important in the context of criminal cases where the parties need jurors to have the requisite knowledge to fairly and intelligently discharge their duties when a defendant’s liberty is at issue.
The dilemma is that regardless of how dense and difficult the material is, judges still need to provide the law to the jury. And, in white-collar criminal cases, the law is anything but easy to distill. The law has evolved to accommodate increasingly complex and sophisticated crimes following the advent of the Internet and electronic trading systems. In addition, many nuances of the laws that fall under the umbrella of white-collar criminal cases, like cybersecurity and insider trading matters, remain hotly contested amongst lawyers and judges. Almost nothing is easy to digest.
Most of the jury charge takes place after closing arguments. The way in which the jury system is currently structured demands that lay people listen, process, and comprehend hours of complicated jury instructions, which is frankly impossible. The judicial system must evolve away from this practice. Federal criminal rules do not require jurors to receive the majority of the legal instructions until after both parties have rested. Fed. R. Crim. P. 30. In fact, according to Notes of the Advisory Committee, the purpose of the 1987 Amendment to Federal Rule of Civil Procedure 51 “is to give the court discretion to instruct the jury before or after closing arguments, or at both times.” Fed. R. Crim. P. 51. In other words, there is no requirement that judges must charge juries at any specific time, so long as it is before deliberations.
Our proposal for changing the way judges charge juries is simple—judges should give jury instructions throughout the course of the trial. Charging the jury contemporaneously with the evidence would provide jurors immediate context and, theoretically, adequately hold its attention.
This is not as drastic a change as it may initially appear. Presently, juries receive a preliminary charge and a post-closing charge. In many cases, juries also receive certain instructions throughout the case, i.e., limiting instructions. This proposal suggests that courts weave some of the post-closing jury instructions throughout each trial day.
Currently, courts provide a series of general instructions (e.g., about the jury’s role, deciding factual issues in a case) which are read before the court has sworn in the first witness. This proposal suggests an expansion of the preliminary instructions. Specific issues that the court and parties know will be a part of the case could be addressed before opening statements. For example, courts could give the direct and circumstantial evidence charges during the preliminary instructions. This might aid the jury in understanding what kinds of evidence it will hear. In addition, it may provide other pre-testimony charges, including the definition of reasonable doubt and its bearing on a case’s outcome, the scope and weight of evidence presented, witness credibility, and more.
This section of the proposal involves the most radical alteration. During the trial, just as judges provide limiting instructions, parties and courts could agree when the judge would read certain instructions now reserved for post-closing arguments. For example, before a law enforcement agent testifies, the court could read the charge that discusses law enforcement witnesses. After a witness whose testimony touched upon the defendant’s good faith, a party could request that the court read the good faith instruction. As a result, juries would receive useful information at crucial moments during the trial. The same could apply to any charge that focuses on evidentiary or other issues requested by either party. This would contemplate strategic decisions by each party as to whether and when to request the judge charge the jury on a specific issue.
After the closing arguments, the court would give the remainder of the charge. If the above suggested changes to the delivery of jury charges were adopted, courts would make it easier on juries, no longer asking them to digest the majority of the law at one time.
This change is not an unreasonable departure from the present method of instructing juries. The associated benefits are clear: (1) jurors would not be saddled with one long set of complicated jury instructions after the close of evidence; (2) it would put more control in the hands of the parties to seek instructions at moments that are likely to assist the jury; and (3) counsel could use the actual charged language in their closing arguments to drive home their most important points.
This proposed solution is merely one suggestion amongst a myriad of possibilities and is not without potential problems. There are, of course, some concerns with restructuring the timing of jury instruction delivery. For example, it would require the parties to finalize much of the jury instructions pre-trial. In the civil case context, the Audit Committee’s Notes to the Federal Rule of Civil Procedure 51’s 2003 Amendment recognized “[t]he risk in directing a pretrial request deadline is that trial evidence may raise new issues or reshape issues the parties thought they had understood.” Fed. R. Civ. P. 51. This issue applies with equal force in a criminal context. The point is, trials are fluid and rarely go according to plan. Courts could not set jury instructions in stone before opening statements, however, on issues that both sides were certain would factor into the trial, real-time instructions could highlight for the jury specific issues or evidence that they otherwise would have afforded little, if any, weight. How and when to ask for a specific charge would be one additional strategy decision for counsel.
Whether this proposed change to jury charges could prove effective is debatable. However, with shrinking human attention spans, the current protocol to take several hours to provide jury instructions at the close of trial is no longer the best practice. Providing jurors with the opportunity to receive the law in more digestible manner would reduce the risk of overwhelming jurors with a massive, legal data dump and causing them to tune out the judge. Getting the jury to most efficiently and effectively understand the law should be an overarching goal of the judicial system. Therefore, we hope that this article will spark conversation within the legal community and lead to changes within a system that is outdated and no longer viable.
Gregory Morvillo is a partner and Ciarra Carr is an associate at Orrick Herrington & Sutcliffe.
Reprinted with permission from the January 25, 2019 edition of the New York Law Journal © 2019 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or [email protected]