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Thursday, October 13, 2005

Legal Fictions, I Mean Jury Instructions

California recently completed a big job: rewriting all its sample jury instructions so that normal people can understand them, without getting any of the law wrong in the process. I've only heard one of the rewritten ones, which sounded fine.

This needs to be done in every state, folks! Here's an example of a typical jury instruction:

"Intent is a mental state, and the trier of fact must, absent an admission, resort to reasonable inferences based upon examination of surrounding circumstances to determine whether from a person’s conduct; and the natural consequences that might be expected from that conduct, there exists a showing or inference of intent to commit that conduct."

Oh, and that would be one of dozens of similar instructions thrown at the jury. Some states now give the jury a written copy; others probably pretend to expect the jurors not only to understand the instructions on first hearing, but to remember them days or weeks later.

Riiiiiiiight. A "legal fiction" is something the law pretends is a fact, often to get around some awkward aspect of decades-old case law. (If you want a more formal definition, it's "a presumption of fact assumed by a court for convenience, consistency or to achieve justice. ") When a legal fiction goes this far, it should be called a legal delusion.

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