“It is your recollection, not your notes which should control. . . .”

Jury Instructions

Few jurors understand what “jury instructions” really are. Judges don’t define the term “jury instructions” in their jury instructions. Yet if most jurors—or many—are like me, they expect the instructions to include information such as how to choose a foreperson and how to deliberate. Guess what: they don’t.

How many people know that every state has “pattern jury instructions” or something similar? Or that these pattern jury instructions are usually generated by the state’s Supreme Court, not by the legislature?

What Are Jury Instructions?

Most jury instructions, it seems to me, are attempts at definitions of legal terms. Unfortunately, the definitions are written by lawyers for lawyers and do nothing to clarify the issues a jury is sworn to decide.

Jury instructions attempt to define terms such as “reasonable doubt” and “recklessness.” But the sad fact is that if a juror doesn’t understand the terms before engaging in deliberations, the jury instructions will only confuse him.

The Judge of the Law versus the Judge of the Facts

I’m not a lawyer, but as I understand it, when a judge tells the jury that he/she is “the judge of the law,” he isn’t saying he is entitled to tell you what the law means. The jury instructions do that. He is saying he is the one who applies the law to the case, identifies relevant laws, and selects instructions from among the complete set of pattern jury instructions.

The jury is the “judge of the facts.” That means, quite simply, it is the jury, not the judge, who decides what evidence and testimony are true and what is not. Then the jury decides guilt or innocence.

Impact of Instructions

The judge may not—as I understand it—rewrite the statutes or extract only portions of the statute to present to the jury in the verdict form. The judge may not—as I understand it—substantially rewrite or enhance the pattern jury instructions.

So, you can imagine this former juror’s surprise when the judge in the trial of NJ State Trooper Robert Higbee inserted into the jury instructions not only a specific reference to one witness’s testimony but also a specific reference to his (the judge’s) notes as to a contradiction in that testimony.

• The judge noted in the instructions that an expert prosecution witness (a state trooper) wrote in his report that one of the victims was not wearing a seatbelt and that he later testified neither victim was wearing a seat belt. As I understand it, the judge is not entitled to insert specific evidence and testimony into the generic instructions.

According to CNN’s Jean Casarez, the judge attempted to insert additional such comments on evidence into other aspects of the instructions, but the defense objected, and the prosecution—oddly enough—sided with the defense out of concern this might constitute reversible error in the event of an appeal.

Another Strange Instruction

Among the instructions, if I heard correctly, was an instruction to the effect that if a juror had a reasonable doubt as to guilt, and it is a doubt that arises from evidence of the defendant’s prior good character, the jury must acquit. Since the principal issue here is the defendant’s state of mind, and since any reasonable person would surely have a doubt arising from the defendant’s prior good character as an exemplary police officer—what does that leave to deliberate about? No one—not even the prosecution—suggested Trooper Higbee had anything but a prior good character.

The Foreperson

Worse yet, the judge in the Higbee trial designated “juror no. 1” as the foreperson. Is this always the way they do it in New Jersey?

Yup. I guess the judge does pick the foreperson in NJ. In this case, the judge picked the person sitting in seat no. 1. If I were a New Jersey juror, I’d be very careful to avoid that hot seat.

Yikes! This isn’t a good way to select a foreperson. The foreperson is a nominal group leader who needs to know how to lead a nominal group. Furthermore, given this judge’s apparent prosecution bias, I can’t help but wonder if he might have chosen the juror he thought was most amenable to the prosecution’s case. (whether unintentionally or intentionally).

IMHO: The jury should pick their own foreperson.