Capital juries and legal-speak

One of the premises of this column is that language is a source of delight, but a serious business, too. There are, after all, places where language is a matter of life and death. The deliberation room where a jury considers sentencing options in a capital case is one of them.

I was reminded of this a few weeks ago while reporting on a national conference on the death penalty. One of the presenters remarked en passant that jurors passing sentence on a defendant found guilty of a capital crime are instructed to consider "mitigating" or "aggravating" factors.

Quite often, he said, jurors don't really know what either of those words means.

Hmm, I thought. I feel some research coming on.

In 1972, the Supreme Court of the United States ruled that the death penalty, as then administered, was imposed so arbitrarily as to constitute "cruel and unusual punishment." As jurisprudence has evolved since, it's become clear that for a state to be "successful," if that's the word, in administering capital punishment, it must follow a very narrow path between arbitrariness on one side and inflexibility on the other hand.

And jury instructions – which tell the citizens in the deliberation room how to consider "mitigating" and "aggravating" factors – have emerged as critically important.

But they can be utterly baffling to jurors, researchers have found.

This, for instance, is from a court in Illinois: "If you do not unanimously find from your consideration of all the evidence there are no mitigating factors sufficient to preclude imposition of a death sentence, then you should sign the verdict requiring the court to impose a sentence other than death."

In lay terms: "To impose the death penalty, all jurors must agree that the defendant did something much worse than just plain murder."

Actually, nationally known jury expert William Bowers told me the other day, jury instructions are written in language that is meant to be accessible – to other lawyers, that is. Judges are trying to "insulate themselves against legal challenges," as he put it – to avoid having verdicts overturned in higher courts. Thus they rely on instructions that follow closely the language of statutes themselves and the case law that grows out of them.

But jurors don't know legal-speak, says Richard Wiener, a professor at the University of Nebraska who has studied juries. Perhaps worse, juries may think they know what given words mean when they don't.

"Aggravation," for instance, is widely used to mean "irritation" or "annoyance." My dictionary tags this usage as "informal," though, and in the courtroom, "aggravate" is used in the stricter sense, "to make more serious."

But jurors, considering "aggravating factors" in a capital case, are likely to think they're being asked whether they feel the victim did anything to annoy or provoke the defendant, Mr. Wiener reports.

Similarly, legal experts say "mitigating" (lessening the gravity or culpability, or guilt, of an action) is often misinterpreted as referring to a factor that makes a crime worse. Here's how one of Wiener's research subjects defined "mitigating": "Psychologically thought through, like premeditated. Where you think about it beforehand and have it planned out – it's conceived."

Wiener's recommendation: Lose the multiple negatives, cut the extra adjectives, and use flowcharts to show jurors where the case is in the legal process, and what options are available at each step.

The actual language of a set of instructions can go back 50 or 100 years, Wiener notes, and customary usage changes over time. " 'Wantonly vile crime' – who talks like that?" Wiener asks rhetorically. "Maybe a hundred years ago people did, but no one does now."

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