If you have ever been to a trial and watched the drama unfold, you likely know that it all comes apart like an old thatch roof in a windstorm when the jurors hear, then see, and try to interpret the jury instructions. It is true. Jury instructions confuse jurors, they seldom instruct them on anything.

After a trial a few months ago a juror reported to me that he did not understand why neither side had "proved intent." The instructions given by the court required the prosecutor to prove that the defendant committed an intentional act, but that requirement was the source of considerable debate and requests for further instructions.

And the fact that a juror thought the defendant had to prove anything is itself problematic. That instruction that said the Defendant had no burden of proof and was not required to present any evidence had gone nowhere.

Jury instructions tend to be confusing and mysterious. Usually in Idaho the court will instruct out of the pattern instructions that are approved by the Supreme Court. They do so to avoid giving an "unapproved" instruction that may cause a reversal. But the pattern instructions were created by lawyers – and as hard as we try – we cannot help ourselves! We cannot write simple instructions of the law because it is not simple. Consider the following "limiting instruction:"

"Evidence has been introduced for the purpose of showing that [Bad Guy] committed a certain bad act involving [Another Guy]. Such evidence, if believed, is not to be considered by you to prove [Bad Guy’s] character or that [Bad Guy] has a disposition to commit such acts.

Such evidence may be considered by you only for the limited purpose of proving [Bad Guy’s] intent on the day in question …"

Huh? If Bad Guy committed a bad act, the jurors WILL consider it as a reflection of his "disposition to commit" bad acts, regardless of the instruction, IF THEY BELIEVE THEY CAN CONSIDER IT AT ALL. Truly we could do better. In at least one case last year a juror reported to me that they thought this instruction meant they could not consider the evidence at all. Now that is a limiting instruction!

This is not an indictment of the judges who give only pattern instructions or the lawyers who proffer them or the jurors who try to figure out what they mean. It is an indictment of all of us within the system who have failed to figure out a better way of doing this. We all use the pattern instructions because we give up on the prospect of having to do the work to create bright, meaningful instructions in light of the fact that they NEVER are given by the court.

Maybe I am sensitive about this today because I am drafting them again for another trial and I know that anything other than the pattern jury instructions will be left on the "cutting floor" in favor of the confusion we have created and foster by the Idaho Criminal Jury Instructions. And how can any juror be instructed on the law regarding the burden of proof and then tell me afterwards that they thought I should have proven intent? They could not figure out why I did not call my client to testify: "we all wondered about that."

They "wondered" about it even though they had been specifically instructed to "not wonder" out loud about a defendant who does not testify. 

As a lawyer, I think I have decided that I must spend less time arguing the facts and more time on the stinking instructions. I need to go over them because when jurors ask for an explanation while deliberating, we are too afraid to engage them and answer the questions. I am guilty of this myself, offering the opinion that we should "just let them figure it out." The problem is they do not figure out the instructions.

So back to my proposed instructions that are due tomorrow. Somewhere in there I might try to provide an original instruction. Something that is easily understood. Something that actually does not confuse.

Or probably not.