VERMONT TRIAL COURT CRIMINAL JURY INSTRUCTION PROJECT

(Outline by Jud Burnham, Law Clerk, as of May 10, 2004)

                                                                                   

Introduction

 

            The Vermont Trial Court Criminal Jury Instruction Committee consists of Judge Hudson, four attorneys, and one law clerk.  The goal is to produce a set of model jury instructions that can be used as building blocks to construct jury instructions for criminal trials in the State of Vermont.

 

            These instructions have not been approved by the Vermont Supreme Court.  The committee expects that they will be available as models, and that people will use them because they like them.  The committee does not expect that they will become pattern instructions, either in the sense that their use will be required, or in the sense that they will be considered “bullet proof” on appeal.  The committee hopes that judges and lawyers will use these instructions as a starting point, and that the instructions will be tailored to fit the facts of each individual case before they are given to the jury.

 

Origins

 

            For more than 10 years there has been talk about improving the jury instructions around the state.  Given the computer technology, it is now feasible to have a central repository of instructions, and I have been compiling a bank of instructions since about 1995.  However, until recently there was no plan for drafting instructions which could really serve as models.  It’s one thing to simply keep a bank of instructions that judges have used, and it’s another thing to try to draft a set of instructions that can serve as models.

 

            At the same time, there has been growing concern that the older instructions that have been handed down through generations of judges are not actually understood by the jurors who are supposed to apply them.  One goal is for judges to give jury instructions that can be understood by all jurors, including jurors without much education beyond the eighth grade.

 

            In the fall and winter of 2000, Justice Dooley started a jury communications committee.  One of the many ideas that grew out of that committee is the idea of drafting model instructions for use throughout the state.  One of the reasons for thinking it could work was the success of a similar project in the State of Delaware.  The Vermont jury communications committee arranged to have a presentation by representatives from Delaware, and that presentation took place on December 14, 2000.  Attorney Tom Leff traveled to Burlington and gave a live presentation at the Costello Courthouse.  Judge Susan Del Pesco spoke via speaker phone.  These two people, along with a committee of four attorneys picked by Judge Del Pesco, were instrumental in implementing the project in Delaware.

 

            The project that we heard about at the meeting was the civil jury instruction project.  Apparently Delaware also has had a criminal jury instruction project, but in Delaware the criminal jury instruction project has been less successful than the civil jury instruction project.

            The key to the Delaware civil jury instruction project was Judge Del Pesco’s careful selection of the committee.  She chose four attorneys whom she knew to be fair-minded attorneys who could work toward a neutral statement of the law.  Judge Del Pesco warned that it was not an appropriate goal to work toward a consensus, because “this isn’t about negotiating anything.”  Instead, the goal is coming up with a neutral statement of the law.  The attorneys chosen for this committee were also known as good brief writers with a penchant for researching the law.  The committee also solicited comments from selected attorneys who had expertise in particular areas of the law.

 

            Judge Del Pesco’s committee met once per week for two-hour sessions.  In between sessions, Tom Leff would draft the instructions based on the discussions from the meetings.  Over the course of about a year, they built up a bank of instructions that they eventually provided free to all members of the bench and the bar.  Initially they distributed the instructions in 3-ring binders, which allows for ease of copying and ease of revision.  Now the instructions are also available on diskette and on a website.  Revisions are available only on the website.  There are two versions of each instruction, one with annotations and one without.  The instructions have been drafted from a neutral point of view, and the commentary will point out when certain points of law might require clarification from the Delaware Supreme Court.  In some instances there are multiple instructions, with annotations and commentaries to explain the differences.

 

            The goal of jury instructions is to communicate legal standards to the jurors.  The committee recognized that jury instructions can be confusing.  One of the goals of the Delaware project was to use plain language.  For this reason the committee consulted with a language expert.  The committee hired Bryan Garner of LawProse, Inc. to suggest refinements of the language, for a contract fee of about $15,000.  The Supreme Court funded the distribution of about 2000 copies of the instructions, in binders and on diskettes, which was accomplished for about $7,000.  The total funding of the project was about $50,000.

 

            Bryan Garner’s role was to suggest revisions to make the instructions shorter, easier to read, and easier to understand.  As part of his method, he would lie on a couch and have his assistant read the instructions to him.  His goal was to make the text smoother.  He would mark up the text and send it back to Tom Leff.  The committee would then discuss the proposed revisions, accepting some and rejecting others.  Bryan Garner’s view about the correct level of complexity was to aim for an eighth grade level.  He is not a specialist in the area of jury understanding, but he is aware of the work of psycho-linguists such as Robert and Rita Charo.  The Delaware committee did not consult with psycho-linguists.  The Delaware project was able to reduce the length of its instructions by about 25%.  Tom Leff suggested that a typical charge should take about 20-25 minutes to read.

 

            At this time, in Delaware, there is an existing body of instructions, and the civil instruction project is considered complete.  The committee still meets about once every two years to consider revisions.  The revisions are posted on the website, without any distribution in hard copy.  At this time, virtually all of the requests for jury instructions are based on instructions drafted by the committee.  Many attorneys submit their requests by providing lists of the instruction numbers, without printing out the actual instructions.  It is not unusual for attorneys to present the court with agreed-upon instructions.  Given the instructions on disk, it is easy to combine the individual instructions into a working document for the judge.  At the same time, the judges feel free to tinker with the instructions.  They don’t just use them in a mechanical way.  The instructions provide a starting point, but they are routinely tailored to the circumstances of each case.

 

The Vermont Criminal Jury Instruction Committee

 

            The Vermont Criminal Jury Instruction Committee began when Judge Paul Hudson agreed to Justice Dooley’s request that he chair the committee.  Judge Hudson is an excellent choice for the job, not only because he has 22 years of experience as a District Court Judge, but also because he is a very practical person who is able to operate very efficiently.

 

            Most importantly, Judge Hudson hand-picked a very impressive group of attorneys to work on the committee.  The four attorneys are Dan Davis, Matt Levine, Kate Moore, and Tom Zonay.  Each of these attorneys has some experience as a prosecutor, and some experience working on criminal defense.  Together, the committee members have a wealth of experience working on Vermont criminal cases.  Moreover, they are all very practical, very efficient attorneys.  They know what they’re talking about, they know how to focus on important issues, and they don’t waste much time.  As a law clerk, it has been an educational experience for me to see this committee in action.

 

            The committee began meeting on August 3, 2001.  At first, we tried to meet every week, and we got off to a fast start.  We first worked on instructions that would be used most frequently, starting with assault and other crimes against the person.  Those first instructions now appear in Chapter 21 (assault and robbery), and Chapter 22 (assaults and other breaches of the peace).  Over time, the project has grown, and we now have approximately 400 instructions.  We also have learned a lot about drafting jury instructions.  However, our instructions have not been subjected to much testing, and we haven’t received much feedback.

 

Initial General Concepts

 

            The committee started with a common understanding of the fundamental principles.  First, we all have a healthy respect for the law.  One primary goal is to provide an accurate statement of the law.  We have tried to state the law in a clear way, so that jurors can understand it, but we are not acting as advocates for substantive changes in the law.  When there are disagreements within the committee, we refer directly to the statutes or to the Supreme Court cases that have interpreted the statutes.  If there are issues that remain unclear, we might provide some discussion about it in the notes, but in the instructions themselves we have tried to follow the law as we know it.

 

            Second, we all recognize that brevity is a virtue.  The committee members are all experienced practitioners who recognize the advantages of brief instructions.  We are also reasonably well versed in the English language, although we can’t claim to have particular expertise in linguistics, or even in the use of “plain language.”  We don’t go over the instructions with a fine-toothed comb, but in many instances we have simplified old instructions by changing words that are archaic or imprecise.  We have also shortened the instructions by eliminating a lot of needless repetition.  Little by little, the instructions have become shorter, simpler, and easier to understand.

 

            There have been some references to our committee as a “plain language” jury instruction committee.  We have made an effort to simplify the instructions, but our primary focus has been drafting clear and accurate statements of the law.

 

General Concepts that have Emerged from the Committee Work

 

            In the course of the committee work, certain concepts have emerged, and other concepts have been clarified.  It may be helpful to anyone using these instructions to understand the background discussions that went into developing these concepts.

 

            There is some tension between a desire to have instructions that are ready to use, and a desire to have instructions that are tailored to the circumstances of each particular case.  The model instructions attempt to accommodate both of these interests, in many ways.  Although these model instructions can be used as building blocks to construct a complete set of instructions, they also require the judge to go through the intellectual exercise of tailoring the instructions to fit the case.

 

            First, the committee recognizes that there are problems, and potential prejudice, associated with the use of generic terms such as “the defendant” or “the victim.”  The model instructions encourage the use of actual names, by providing clearly identified spaces for the names, such as (Def)_______________ or (victim)_______________.  It is a simple matter to fill in the names, and the advantages are well worth the effort.

 

            Second, the model instructions encourage the use of specific instructions when specific acts are charged.  In many places the statement of the elements will include a space for specific acts.  (e.g. “(Def)__________ caused bodily injury to (victim)__________, by (specific acts)__________.”) Generally the discussion of the elements will also include a sentence providing for a statement of the specific allegations, as follows: “Here the State alleges that (Def)__________ caused bodily injury to (victim)__________, by (specific acts)__________.”  The committee recognizes that prosecutors do not always allege specific acts, and that a statement of the specific acts is not always required under the law.  However, when the information does charge specific acts, it is helpful to the jurors to remind them of the specific acts that are charged.

 

            Third, many of the model instructions include bracketed material.  Generally this means that the bracketed instruction will be appropriate for some trials but not for others.  For example, the homicide instructions contain bracketed material giving additional instructions on the meaning of “unlawful killing.”  If the unlawfulness of the killing is not an issue in the case, then it is better to give the shorter instruction.  If the unlawfulness of the killing is in dispute, then the attorneys might want to request the longer instruction.  Furthermore, any time the facts of a case require elaboration on a particular issue, the attorneys should feel free to request additional elaboration in the instructions.  The model instructions are not intended to cover every situation.

            In some instances, the brackets indicate a choice.  For example, when the state charges the defendant with simple assault under 13 V.S.A. § 1023(a)(1), there is a choice between charging an attempt to cause bodily injury, or charging purposely, knowingly, or recklessly causing bodily injury.  The instruction, CR22-021, provides the choices in brackets, as follows:  [purposely] [knowingly] [recklessly].  The model instructions contemplate that the State will elect to charge one of the choices, and that the instructions will be tailored to reflect the State’s election.  The court can simply strike out the choices that don’t apply.

 

            Another theme that has emerged in the drafting of these instructions is the concept of modularity.  As a committee, we recognize the advantages of consistency.  If a word is defined a certain way in one instruction, it is generally preferable to define that word in the same way in other instructions.  One way to do this is to draft the definitions as separate modules.  That way, the definition is available for insertion into a given instruction, and in many instances the drafter will be instructed in that way.  For example, the instructions might provide, in brackets: [Insert instruction for “intentionally,” CR06-111].  One of the consequences of this modularity is that the model instructions are much more consistent than the various old instructions that can be found in boxes in the judges’ chambers.  Sometimes there may be reasons to give different definitions in different contexts, and the system allows for flexibility in choosing the modules.  The committee always encourages the drafter to tailor the instructions to fit the circumstances.  Nevertheless, consistency is generally a desired goal.

 

            Some of the definitions are fairly straightforward.  For example, the definition of “bodily injury” comes directly from the statute, 13 V.S.A. § 1021(1).  On the other hand, the committee does not always include all the statutory language.  For example, the term “deadly weapon” is defined by statute, under 13 V.S.A. § 1021(3), and we have used the definition from the statute, but we decided it wasn’t necessary to tell the jury that the weapon could be “animate or inanimate.”

 

            In some instances, the definition will depend upon the context.  As examples, the words “consent” or “harass” might have different meanings in different contexts.  There are statutory definitions that might or might not apply.

 

            In many instances, the committee was faced with defining words that are not clearly defined under Vermont law.  Often it was helpful to consult Black’s Law Dictionary or Webster’s New Collegiate Dictionary.  Sometimes we drafted our own definitions, to describe our own understanding of what the words mean within the context.  At other times we simply left the words undefined in the instruction.  In many instances, we left words undefined because we thought that jurors would already have a sufficient understanding of the words.  For example, in most cases it is not necessary to define causation, because most jurors will already understand what it means.

 

            There are also instances where we left words undefined because we did not have a clear understanding of the legislative intent.  For example, in the stalking instruction, the committee did not elaborate upon the statutory requirement that the course of conduct “serves no legitimate purpose.”  (13 V.S.A. § 1061(1)(A)).  The meaning of that phrase might become clear in the context of a given case, but it was not clear to the committee that we could draft an instruction that would be helpful in most cases.  For that reason the model instruction for stalking does not elaborate.  Of course the attorneys are free to request a more specific instruction the next time the issue comes up.

 

Specific Preferences that have Emerged from the Committee

 

            The committee has developed numerous specific preferences, the reasons for which were all discussed at length.  Some of those ideas are as follows:

 

            1.  In stating the charge, it is preferable to read the charge as it appears in the information, and not to try to paraphrase the applicable statute.  In the past, many jury instructions have quoted from the statute, or paraphrased from the statute, because that seems like a natural place to start.  However, quoting from the statute can be confusing to the jury, because the quotation might well refer to concepts that do not appear as part of the state’s charge.  Therefore it is preferable to stick with the charge, and not to provide a general explanation of the statute.

 

            2.  Both in the elements, and in the explanation of the elements, it is helpful to name the specific acts underlying the charge.  There may be cases where the state declines to specify the alleged acts, but usually it is helpful to explain the charge by including a description of the alleged specific acts.  The committee believes it is generally preferable for the state to allege the specific acts underlying the charge, and for the court to include the allegations in the jury instructions.

 

            3.  The model instructions consistently list the first essential element as the identity of (Def)__________ as the person who committed the crime charged.  The committee concluded that it is helpful to start each instruction in this way, even though the significance of this element might vary greatly from one case to the next.  If there is a significant issue over identity, it might also be appropriate to give a more elaborate instruction.  Note that if the defendant is charged as an accomplice, the jury still must find that the defendant is the person who committed the crime charged, but the “crime charged” might require consideration of acts committed by others.

 

            4.  The committee has tried to be consistent about referring to essential elements as “essential elements,” whereas there may be instances where the word “elements” is used in a different way. 

 

            5.  The committee does not make repeated references to the requirement of proof beyond a reasonable doubt.  The committee’s view is that it is important to try to keep the instructions short.  As long as the burden of proof is stated in a clear way, there is no need to repeat it several times.  Of course, the attorneys are free to emphasize the burden of proof in their final arguments.

 

Organization of the Files into Chapters

 

            After the jury committee had worked on the project for a few months, we began to organize the files into chapters and sections.  We wanted the system to be easy to understand, and we have separate chapters reflecting the most frequently cited chapters in Title 13, Title 23, and Title 18.  To some extent we followed an organization that is found in the Vermont Statutes Annotated.  We drafted a set of chapters that seemed to make sense, and left some of the chapter numbers on reserve for future use.

 

            Chapter 52, Worrying a Moose, serves to illustrate the extent of the experience to be found on this committee.  Our illustrious and well-seasoned chairperson, Judge Hudson, once presided over a case charging worrying a moose on Wallace pond.  One of the issues presented to the jury in that case concerned the territorial jurisdiction.  See 13 V.S.A. § 2, and CR09-601.

 

The Notes

 

            The model jury instructions come with a set of notes, which are provided in a separate document and not as footnotes.  The notes provide background information that might help to answer questions about the instructions themselves.

 

            The notes are a work in progress; they are not consistent.  Some of the notes may provide helpful background information, but some of them are incomplete and unpolished.  In some instances, they merely provide a listing of cases that have contributed to the law of a particular topic.  The fact that some notes appear on a particular topic does not necessarily mean that those notes have been discussed in the committee.

 

            The committee hopes that, when they are more complete, the notes will provide a useful guide to issues that are open to interpretation under Vermont law.  Thus they will identify issues that the committee sees as unresolved.  There may be other issues that are not identified in the notes.  The committee has not attempted to identify every issue that might come up.

 

How to Use These Instructions

 

            The first step in using these instructions is to become familiar with the table of contents.  The name of the file in WordPerfect is CR_TOC.  (The Microsoft Word version is entitled MS_TOC.)  The table of contents file includes an introductory Summary of Contents, followed by an Expanded Table of Contents.  The files are listed under chapter and section.  For example, the first-listed file is CR01-011 (i.e. Chapter 01, Section 011, Questions to ask Jurors at Start of Trial, and During Trial).  If you want that file, you should look for CR01-011.

 

            The committee’s work is ongoing, and the list of available instructions is expanding.  The methods of distribution are being worked out.  The instructions have been available to judges and trial court law clerks since about May of 2002.  It is expected that a set of instructions will be available on the VBA website by July of 2004.  The committee continues to meet.  In the future we expect to distribute revised instructions approximately once per year.