Preliminary jury instructing: a dilemmatic communication practice

Abstract This study analyzes judges’ preliminary jury instruction in nine US federal civil trials. Following an overview of past and current jury instructing practices, including the role of pattern instructions, I describe the trial materials and introduce genre analysis and grounded practical theory, the two theoretical-methodological frames I use to analyze judges’ instructing. Judges’ preliminary instructions are shown to include the basic units identified in written pattern instructions. How they are performed reveals significant judge variation, and the variations make apparent difficulties built into the law that are backgrounded when solely written texts are studied. Some of these difficulties surface in judges’ description of the case and law, in orientation to note-taking, and in discussion of what is evidence and how to assess it. In concluding I argue that conceiving of high-quality jury deliberation as centrally dependent on getting instructions more comprehensible fails to recognize the fundamental judgment task that juries have. Being a good juror involves navigating communication dilemmas. Attending to the judge’s preliminary jury instructing, the paper argues, requires jurors honoring multiple principles that may be in tension.