Friday, February 24, 2006

A preponderance of misunderstanding

The US Supreme Court says that a preponderance of the evidence must point to the voluntariness of consent when officers perform so-called "consent searches" at traffic stops. The Texas Constitution, though, requires that "clear and convincing" evidence be presented that consent was granted voluntarily. So what's the difference?

Not much, apparently, if you're a juror who never understood the legal jargon in the first place. From
The Texas Pattern Jury Charges Plain-Language Task Force ran its first test of the original admonitory instructions last week. Here is one tidbit.

When asked to give a percentage for how sure you must be to conclude that something was proved by a "preponderance of the evidence," the 25 test jurors gave the following percentages:



Of course, the correct answer is 51% or "more likely than not," which is the language California used in its new jury instructions in place of "preponderance of the evidence."
That's one of the sorry legacies of logorrheic law profs. Avoiding jurors having to wade through impenetrable legalese is one of the few upsides to the otherwise lamentable modern preponderance of plea bargains over jury trials. More than a preponderance, really - less than 1% of criminal cases in Texas ever make it to a jury anymore. When they do, I wonder how many jurors simply misunderstand what it is they're being asked to decide?


Catonya said...

I've thought about this in the past. Can you imagine sitting on a jury for say- the Enron thing. Aside from the legal speak, I imagine Mr./Mrs. Everyday American would find it confusing and sanity shattering boring.
Along the same line- I don't think anything surprised me more than when I learned a degree in law isn't required to be a Justice of the Peace -even some judges aren't required to hold more than a bachelors degree.

Gritsforbreakfast said...

You know, I really don't get it. The law's written by people who mostly aren't lawyers, in language much plainer than lawyers speak about it.