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?

  • Does "the jury doesn't accept.. the judge's interpretation of the law as fact" mean they think they know more about the law than the judge does? If so, this jury is fantastically arrogant, and probably in breach of their oath. – Tim Lymington Apr 29 at 22:37
  • @TimLymington I assume this is all tied into protections against (wildly) unreasonable instructions, so that the jury acts as a control and stopgap on corruptions of the judiciary. Such as if a US judge instructed to the effect of "if anyone speaks ill of X then they are guilty of treason, the punishment for which is torture and death" it would be reasonable (some might argue imperative) for the jury to reject this. – zibadawa timmy Apr 30 at 7:27
  • @zibadawatimmy: The possibility of the judge giving wrong or corrupt instructions is dealt with elsewhere in the system. A jury has the power to say "If a guilty verdict means the death penalty, we will return a not guilty verdict regardless of the law"; it has neither power nor right to say "The law doesn't actually require the death penalty, regardless of what the judge and legislators say". – Tim Lymington Apr 30 at 8:51
up vote 6 down vote accepted

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."

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.

  • What is the distinction between a "power" and "right" here? Is it that jury members can be punished afterward for nullifying a charge by disobeying the judge's directions? – Obie 2.0 Apr 30 at 8:34
  • I believe that it is necessary to clarify which laws are being discussed, since, clearly, there may be a difference between the laws of Florida and those of California; but, to an even greater extent, between those of California and those of England and Wales - or, indeed, New South Wales. I don't believe, for instance, that juries in all states and all countries take an identical Oath. Juries are often asked to swear only to return a true verdict according to the evidence. And it is not unknown for juries to not understand the Judge's observations, leaving them no choice but to acquit. – Ed999 Apr 30 at 9:24
  • @Obie2.0 I have expanded the answer to address the points you and Ed999 have raised. – sjy May 1 at 13:47

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.

  • I think this answer misstates the law of England and Wales in two respects. First, the rule permitting expert evidence to be admitted is an exception to the opinion rule, not the hearsay rule. It is certainly not the only exception to the hearsay rule – there are many exceptions, notably the exception for admissions against interest. Secondly, the judge is required to direct the jury as to matters of law and the jury is bound to follow the judge's directions; counsel generally do not address the jury on the law, for the reasons now given in my edited answer. – sjy May 1 at 13:55
  • The answer does not mis-state the law of England, because it does not address the law. It only deals with matters of procedure, not matters of law. Secondly, the rule against hearsay is the (procedural) rule which bars the giving of opinion by a witness, in testimony, except by an expert witness. There are various exceptions to that rule, that are not relevent here as we are only considering the position of the expert witness. Thirdly, the Jury makes up its own mind whether to follow guidance offered to it on the law, since - in England - its deliberations are, and always remain, secret. – Ed999 May 2 at 9:12
  • The hearsay and opinion rules are distinct: see, for example, R v Turner [1975] QB 834, 841. – sjy Jun 22 at 13:03
  • R v Turner is not an authority for the proposition that the rule against hearsay is in some manner different from the rule against opinion evidence, for in the English legal system opinion is merely one type of hearsay. Expert evidence is opinion evidence, and thus is a species of hearsay. And Turner is a leading case only on the admissability or otherwise of a certain type of medical evidence, namely psychiatric evidence. Turner is only an authority for the principle that it is up to the judge (not the expert, nor the jury) to decide whether expert evidence is needed in the case. – Ed999 Jul 13 at 12:42

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