Could jury instructions reasonably be viewed as a kind of expert witness testimony?

Question

It seems to me that jury instructions could be viewed as a kind of testimony provided by an expert witness (the judge) about what verdict must be returned based on what facts the jury finds to be true. Like witnesses, judges are human and subject to biases and external pressures, and it seems like it would be reasonable to assume that their jury instructions could reflect that.

Viewing jury instructions this way I think would mean that it is part of the role of the jury to determine which parts of the jury instructions should be considered fact, and I think it would also mean that jury nullification wouldn't necessarily mean that a jury returns "a verdict of 'Not Guilty' despite its belief that the defendant is guilty of the violation charged"; it could just mean that the jury doesn't accept all of the statements in the jury instructions, such as the judge's interpretation of the law, as fact.

Could jury instructions reasonably be viewed as a kind of expert witness testimony? If not, what are the main problems with viewing them this way?

Answer 1

No. There is a clear distinction between:

• evidence (or testimony), which consists of statements of fact given by witnesses on oath (subject to prosecution for perjury), governed by the rules of evidence, and which the jury is required to consider but not accept (in the sense that a verdict which is not supported by the evidence can be set aside on appeal),

• submissions, which consist of argument by the lawyers for the parties, which the jury is not required to consider or accept, and

• directions, which consist of statements of law given by the judge, which the jury is required to accept.

The jury is required by its oath to follow the law as stated by the judge, even if it is wrong. The remedy for erroneous trial directions (an appeal) is different to the remedy for erroneous evidence (a perjury prosecution in the case of deliberate lies; nothing in the case of innocent errors).

Because the jury has the power, but not the right, to nullify a charge by disobeying the judge’s directions, there is a sense in which the jury is free to reject the judge’s directions just as it is free to reject evidence. However, this is completely inconsistent with the theory that defines the roles of judge and jury. There is no legal basis for viewing judicial directions as a kind of expert testimony.

‘The power, but not the right’

Obie 2.0 asked about this phrase. It coems from the Case of the Dean of St Asaph, which is reported at R v Shipley (1784) 4 Doug 73. The relevant passage is summarised in Lord Devlin's Trial by Jury (1956), at p 87:

Jury’s Power of Acquittal

There may well be cases in which the killing is not in doubt and the formal direction not to return a verdict of manslaughter is therefore tantamount to a direction to return a verdict of Guilty. Still, if the direction is ignored, the court must, I think, accept the verdict. There is no way in which a verdict of acquittal can be nullified. As Lord Chief Justice Mansfield put it in 1784: “It is the duty of the judge, in all cases of general justice, to tell the jury how to do right, though they have it in their power to do wrong, which is a matter entirely between God and their own consciences.” Mr. Justice Willes said: “I admit the jury have the power of finding a verdict against the law and so they have of finding a verdict against evidence, but I deny they have the right to do so.”

The Chief Justice of Australia held to similar effect in Gammage v The Queen (1969) 122 CLR 444, writing:

[The jury] have no right, in my opinion, to return a verdict of manslaughter where they are satisfied of murder. But, as I have said, persistence by them in returning another verdict must ultimately result in the acceptance of that verdict. In that sense, but in no other sense, it is both within their power and, if you will, their privilege to return a wrong verdict.

To answer Obie 2.0's question, the jury has the power to ignore the judge's directions, because – at least at the time Lord Devlin was writing in 1956 – a verdict of acquittal could not be nullified. However, the jury does not have the right to do so because the law requires it to follow the directions.

As Ed999 observes, the law governing jury trials does vary between jurisdictions. In particular, some jurisdictions (which lack the United States' constitutional double jeopardy clause) now allow for a jury acquittal to be set aside on appeal. However, the fundamental distinction between a witness’s evidence and a judge’s directions was established in England centuries ago, and remains applicable throughout the common law world.

It is worth specifically mentioning the United States because jury nullification remains a controversial topic in that jurisdiction. However, the basic principle that the jury is legally required to follow the judge’s directions was established in Sparf v. United States, 156 U.S. 51 (1895), and described by Ginsburg J (albeit in a dissenting judgment) as ‘conclusive’ in Honda Motor Co. v. Oberg, 512 U.S. 415, 447 (1994). In Sparf, the opinion of the court was:

We must hold firmly to the doctrine that in the courts of the United States it is the duty of juries in criminal cases to take the law from the court and apply that law to the facts as they find them to be from the evidence.

Answer 2

Not in England and Wales, because the Judge cannot give testimony of any type.

An expert witness gives hearsay evidence (that is to say, he gives an opinion, not an eye-witness's evidence): necessarily so, because he was not present at the scene of the crime (or, in a civil case, he did not see the events at issue occur). But an expert is the principal exception to the hearsay rule, i.e. the rule that only eye-witness testimony can be given in evidence.

In England it is rare, today, for a jury to sit in a civil case: mainly, juries are now only used in criminal cases. But I think it is nevertheless worth making the point that the rules of evidence are different in civil cases; whereas in criminal trials the rule against hearsay evidence is much more strictly adhered to.

In a civil case, the Judge performs also those functions which, in a criminal case, are performed by the jury. So it is easier, perhaps, to understand the position by considering a civil case: there, the Judge is also the Jury, so it is readily apparent that it would be improper for the Judge to give evidence of any type.

The function of a jury is to decide questions of fact in the case, whereas the function of the Judge is to decide questions of law. This requires the court (composed both of judge and jury) to sit impartially between the two parties to the case: thus the judge can no more give evidence than can the jury.

But the function of the expert witness is to give evidence, usually medical evidence: evidence of a type that requires some degree of professional training, and so falls outside the ordinary knowledge of a jury. The Judge too, like the jury, will simply not have specialist medical or scientific knowledge, and so will not be in a position to give expert evidence.

In regard to points of law, the first thing to understand is that in England a jury has the right to ask the Judge questions: in a sense, the jury is entitled to cross-examine the Judge with regard to points of law. But that is the only resemblance between the role of Judge and the role of Expert Witness.

Also, in England, both the Barrister representing the police, and the Barrister representing the Defendant, are entitled to address the Jury on points of law. It is not solely the Judge who does so. The Jury then decides for itself which of the three (often differing) views on the law it wishes to follow. But the important point to bear in mind is that the Jury is not being briefed on the applicable law by only the Judge: it gets three points of view, not one. And what the outcome in the case is will often depend on what view the jury takes of the eye-witness evidence (i.e. which of the eye-witnesses it believes), and hence may have nothing to do with anything the Judge says.

It is a mistake to suppose that, in England, the Judge gives instructions to the Jury. He does not. His summing-up summarises the evidence given in the case, and then addresses the main points of law which the case has raised. But the Judge is often only setting out legal alternatives: he is telling the jury what the prosecutor must prove, since certain differences do exist between - for instance - what amounts to murder, and what does not but might nevertheless amount to manslaughter (in the USA, termed 2nd-degree murder).

In England, a Judge has the power to instruct the jury on only one matter: if he is convinced that in the circumstances no conviction could possibly be safe, he can order the jury to acquit the defendant. But in all other respects he can only offer guidance, not instructions.

For deliberate reasons of public policy, the expert witnesses are independent not only of the parties to the case (in a criminal trial, this will be the police and the accused), but also are independent of the court too. The experts are, for instance, chosen by the lawyers acting for each party in the case, never by the court.

The Judge's function is to decide whether someone is suitably qualified to act as an expert witness (if the Barristers disagree on this, they typically ask the Judge for a ruling). Clearly, therefore, a judge cannot also be an expert witness: that would violate the essential distinction between the judge's function, which is to choose, and the expert's role, which in this respect is simply to be chosen (or, occasionally, to be rejected).

Hopefully, this throws some light on the issue of why the Judge cannot in any sense be seen as an expert witness.

ADDENDUM : In England, in a very recent change, by Act of Parliament under the last Labour government, Parliament abolished the double jeopardy rule, in effect allowing another court to later set-aside the Jury's verdict (i.e. in the case of an acquital). This permits a defendant to be tried for a second time for the same offence. But it would be quite wrong to suggest this change was not contraversial.

Also, in England the deliberations of a Jury are secret. No politician, Judge, journalist, nor any other person, is entitled to enquire subsequently into why the jury reached the decision it did; nor is a member of the jury permitted to make public statements, or give press interviews, about those deliberations. What is said in the jury room is confidential for all time, in compliance with the public policy objectives of certainty and finality: the preventing of the parties to the case from re-opening it by the backdoor, by bringing into question the proceedings of the jury. Just as proceedings in Parliament cannot be litigated in any court, neither can proceedings in a jury room.

Answer 3

No. In every case there are two fundemental questions that will be asked: What does the law say, and what do the facts say? In the Common Law system, these questions are usually divided among two parties as two who answers what: The Judge answers the questions of law (always) and the Jury answers questions of fact (usually).

The Judges instructions are basically the answer to the questions of law and are normally written for each unique charge so that the judge states the violation the defense is accused of and under what circumstances does the violation of the law occur.

For example, if we say X is a violation of the law than the judge might right something to effect of:

The defendant is accused of the crime of X. The law states that a person is guilty of the crime of X if he meets the following conditions:

• [Condition 1] AND
• [Condition 2a] OR [Condition 2b] AND
• [Condition 3]

If the defendant meets all of these conditions, then the defendant shall be found guilty of the crime of X. If one of these conditions is not met, he shall be found not guilty of the crime of X.

These can get tedious if the defendant has many counts of the same crime.

This is not a testimony but a mere finding of the judge as to the conditions that need to be met to convict. While not often seen, there is a point in the trial (Specifically when the prosecution rests it's cases) where the defense can request that the judge drop charges as the prosecution offered no proof, or not enough proof to to prove guilt... usually the judge dismisses the motion, but on occasion, the judge will agree, though usually in part, almost never in full.

The judge's instructions to the jury are best though of as the logical formula which the jury should make their decision. The judge will also make it abundantly clear that the jury should not use the lack of testimony by the defendant as a mark against the the defendant when evaluating. Some judges will write individual questions asking if the individual conditions are met.

I used boolean operators to demonstrate that these questions need not all be answered in the affirmative to be considered guilty. Specifically, while Condition 1 and Condition 3 must be true to find guilt, Condition 2a doesn't need to be proven if Condition 2b is proven true.

Additionally, some crimes are rather broad in scope, but the judge will find that a condition 4 is not specifically relevant to this case. For example, the United States has a crime of Felony Murder which usually cover a death that occurs during the commission of another crime that is not murder. The typical example is a group of bank robbers who, while shooting off their gun into the ceiling to get the attention of the patrons, startles a little old lady who has a heart attack and dies due to the complications. Had the robbers not been engaged in criminal action, the little old lady would have not had a heart attack and would not have died of complications related to said heart attack. Felony Murder conditions may not need to be included in the list of conditions for a different crime of a robber stabbing another little old lady to death in her house with specific intent to kill her.

With Respect to the Jury Nullification, this is not a jury rejecting the judge's findings as to what the law says, but rejection of the law itself. Nullification is basically the jury following the logic trail and determining that the defendant is guilty of the crime (rules as written) but feel that the law is an unjust law, may decide to declare the juror Not Guilty as a rejection of the law (not the judge's ruling as to what the law says... it's assumed that the judge did not misread the law in the instructions).

A typical example would be that if the law says that a certain substance is classified as a drug, but the jury comes from a community that disagrees with this law is fair or that the punishment for possession is beyond acceptable. No one involved in a criminal case likes jury nullification and in the United States it is perfectly acceptable to dismiss a juror who is likely to create a jury nullification situation (in fact, in Death Penalty cases, a juror cannot be opposed to capital punishment and is usually dismissed by the judge, rather than objected too by the prosecution. They do not want to risk that justice will be perverted because the accused might meet the threshold for death penalty. Especially since it is illegal to punish death penalty as a mandatory sentence... usually the prosectuion has to show that the case was especially egregious with aggravating factors to the crime.. which come up in the sentencing phase, a part of a trial that occurs after guilt is established.).