Sara G. Gordon (University of Nevada, Las Vegas, William S. Boyd School of Law) has posted Through the Eyes of Jurors: The Use of Cognitive Psychology in the Application of ‘Plain Language’ Jury Instructions on SSRN. Here is the abstract:
- This article examines the social science research on schema theory in order to advance our understanding of how “schemas,” or the preexisting notions jurors have about the law, shape jurors’ use of jury instructions. “Through the Eyes of Jurors” is the first law journal article to look at all of the major cognitive psychology studies that examine how schemas continue to influence jurors’ use of jury instructions, even when those jurors are given “plain-language” instructions.
There is, of course, a significant body of legal literature examining jurors’ use and understanding of jury instructions, and many scholars have recommended ways to improve juror comprehension of instructions. This article takes that analysis a step further, and argues that even when given “plain-language” jury instructions, jurors will still be influenced by their preconceived ideas of what the “law” is, or in other words, by the preexisting schemas they have for legal concepts. Furthermore, these schemas are often legally incorrect, and findings from the social sciences suggest that, even when given plain-language jury instructions with the correct legal standard, jurors may still apply these legally inappropriate schemas. This article synthesizes the results and underlying theories of those findings in order to examine the impact these schemas have on jury decision-making, and on jurors’ use of jury instructions, and to identify ways lawyers and judges can counteract inappropriate existing schemas and activate legally appropriate schemas before jurors are introduced to the facts that are expected to interpret. Specifically, courts should use principles of cognitive and educational psychology to develop jurors’ schemas to more closely resemble that of the lawyers and judges in the case.