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Jury instructions are important in criminal cases. Because crimes are often constructed from multiple elements, a jury often has to make a specific finding for each element, to ensure that the prosecution actually has proven the suspects guilt beyond a reasonable doubt.

These instructions are also important because they are supposed to be drafted with the ordinary juror in mind, and not judges or criminal defense attorneys. This is because the law and especially statutes can be difficult for those without legal training to understand.


In a case that went to the U.S. Supreme Court, the defendant attempted to argue that the jury instructions were so confusing at the sentencing phase that a jury may not have realized that it could consider mitigating circumstances that had not been proven beyond a reasonable doubt.

The Kansas Supreme Court had reversed the case on the jury instruction confusion and the state of Kansas appealed to the U.S. Supreme Court. But the case has a very confusing procedural history, and even if it the U.S. Supreme Court overturns the Kansas court, the defendants involved in the case are likely to be resentenced due to an argument that was not heard by the U.S. Supreme Court.

One aspect of the oral argument perhaps highlights the instruction dilemma.

Justice Scalia attempted to argue that no matter how confusing the instructions, the gruesome facts of the case would have still led to a jury to impose the death penalty.

That could be true, but when he attempted to cleverly sum up his analysis as being so commonsensical that there is a Latin legal maxim that stands for the proposition; "Inclusio unius, exclusio alterius." This maxim means "when one or more things of a class are expressly mentioned others of the same class are excluded."

If you were thinking that still is not very clear, Justice Sotomayor quickly pointed out to Justice Scalia, "And I doubt very much that any juror has heard of that maxim."

This succinctly points out the challenge presented by drafting jury instructions; they are not for law-professors-turned-Supreme-Court-Justices, spouting Latin legal maxims. They are for ordinary citizens, and for them, even the translation of Latin maxim could still be found to be confusing.

Source: cjonline.com, "U.S. Supreme Court skeptical of Kansas Supreme Court's decision in Carr, Gleason cases," Justin Wingerter, October 7, 2015

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