International Journal of Speech Language and the Law, Vol 22, No 1 (2015)

Cheng,_Cheng,_Li

doi : 10.1558/ijsll.v22i1.15400

Jury instructions in Hong Kong: a Gricean perspective

Le Cheng, Winnie Cheng and Jian Li

Abstract

Most previous studies on jury instructions have been confined to legalese such as the lexical and syntactic features of jury instructions. This study, drawing on reported cases on jury instructions from the Hong Kong judiciary, aims to examine jury instructions in Hong Kong to better explore how jury instructions are given in Hong Kong, being a common-law jurisdiction, and to argue that Grice’s Cooperative Principle can be usefully adopted to examine jury instructions in order to shed some light on the drafting of jury instructions. The study argues that the principle of rationality, a deeper-level of observance of Gricean maxims, which underlies the Cooperative Principle, has interpretative force on jury instructions in the case of non-observance of conversational maxims, and that, in the court judgments examined, non-observance of the fundamental communicative principle usually constitutes a good ground for appeal, although the opposite is also true. It therefore provides a pertinent demonstration of the differences of the operation of Gricean maxims in lay and legal contexts.

keywords

jury instructions, hong kong, gricean maxims, cooperative principle, rationality, interpretative force

1. Introduction

In common-law jurisdictions, jury instructions rank among one of the most important legal discourses. Jury instructions are directions or guidelines that a judge gives to the jury before it begins deliberations regarding the factual questions it must answer and the legal rules that it must apply in rendering a verdict regarding a case. As Kimble contends (2001: 39), ‘lawyers have to live by them, and some defendants may have to die by them’. During professional–lay communication between the judge(s) and jurors, Heffer (2005) notes that there is an expectation that the jurors are cooperative communicators to the extent that they understand the explicit and implicit meaning expressed by the judge. As Tiersma notes, ‘[m]odern jurors are more likely to follow their charge if they feel themselves to be part of a cooperative enterprise geared toward finding the truth than if they feel like foot soldiers being ordered about by an imperious commander’ (2006: 3).

The drawbacks of pattern jury instructions (typically in the US), however, are quite obvious. First, as they are written by legal professionals, they tend to be written in legalese, with a style that is more formal, compact and syntactically complex compared to spoken texts (Tiersma 1999). Second, it cannot be assumed that pattern jury instructions will necessarily be appropriate for the facts of a particular case. In Hong Kong, there are no such pattern jury instructions but specimen directions. Specimen jury instructions are not necessarily binding, as is very well noted in the disclaimer for Specimen Directions of Jury Trials prepared by the Hong Kong judiciary, which reads: ‘[b]oth the English Specimen Directions in Jury Trials and the Chinese translation are for reference only and they are not meant to have any legally binding effect’. In Hong Kong, judges often refer to the specimen provided by the Judicial Studies Board, but they also draft their own instructions or even improvise their instructions, whether in English or in Chinese (usually in Cantonese).

Beginning with the earliest experimental work by Charrow and Charrow (1979), many studies on jury instructions have shown that jurors have difficulties in comprehending the legal rules that are supposed to govern their verdicts (Steel and Thornburg 1988). In their study, Charrow and Charrow (1979) asked mock-jurors to listen to a recording of jury instructions and then paraphrase what they had heard. Findings showed that more than 50% of information was missing from some paraphrases. The researchers concluded that poor comprehensibility was mainly due to the complex syntactic structure of the jury instructions, for example, frequent use of double negatives and passive voice. The Charrows also found that when the instructions were revised to eliminate many of their more troublesome linguistic features, comprehension scores improved substantially. In other studies, Elwork, Sales and Alfini (1977, 1982) tested jurors with the original jury instructions or jury instructions revised in conformity with plain language principles; the researchers came to a similar conclusion. Similarly, Levi (1993) pointed out that many jurors did not know the meaning of some words when in the form of legalese, so jurors might encounter difficulties in understanding jury instructions when some technical terms were used. Other studies found that inaccuracy, insufficiency and ineffectiveness in pattern jury instructions may bring about confusion for jurors, causing them to misinterpret what a jury instruction is actually intended to communicate (Brown 2000; Solan 1999; Tiersma 1999, 2001, 2006).

With a view to promoting plain language, many studies adopted the linguistic or psycholinguistic perspective (e.g., Charrow and Charrow 1979; Gibbons 2003; Elwork et al. 1977, 1982; Mellinkoff 1963; Schane 2006; Schwarzer 1981; Solan 1999; Stygall 1994; Tiersma 1999, 2001, 2006) and found that jury instructions sometimes fail to serve their intended purpose of giving clear guidance to the jury due to legalese (e.g. Gibbons 2003; Schane 2006). While legal professionals have reasons to defend their use of legal language, for example, to preserve their professional monopoly and to embody the predictability and applicability of the law (Tiersma 1999, 2001), legalese in jury instructions has been found to pose challenges to the jury. Most of the studies on jury instructions focus on legalese or the jurors’ difficulty in comprehension due to legal jargon, complex syntactic structures, and the length of pattern jury instructions. As Shuy (2007: 105) comments, ‘a few linguists have carried out research on jury instructions (Charrow and Charrow 1979; Elwork et al. 1982) but there is much more work that linguists can do in this area’. While Gricean theories have been used to examine other legal contexts, such an application to jury instructions seems to be an uncharted domain. By examining jury instructions in some reported cases in Hong Kong,[1] this study aims to show that Gricean maxims may work differently in a legal context than in a lay context, particularly in relation to the differences between ‘ordinary’ Grice and ‘legal’ Grice (e.g. Cotterill 2010; Frade 2002; Heffer 2005, 2006; Linfoot-Ham 2006). It would seem, from the analysis and discussion below, that the law cares more about some non-fulfilment of maxims (Linfoot-Ham 2006) (violating the maxim of quality, uninformativeness as one way of violating the maxim of quantity, violating the maxim of relation and violating the maxim of manner) than others (overinformativeness as the other way of violating the maxim of quantity). In the following, Section 2 is a review of the application of the Cooperative Principle in legal settings; Section 3 examines how the Cooperative Principle (specifically, its four maxims) is not observed in jury instructions; in Section 4, we argue that the Cooperative Principle, with its underlying emphasis on rationality and reasonableness, is applicable to jury instructions; and the last section concludes that Grice’s maxims are tacitly followed in deciding the appropriateness of a jury instruction.

2. Application of the Cooperative Principle in legal settings

Grice’s Cooperative Principle (1975), which consists of four maxims, is said to form the basis by which all human beings generate and interpret conversational implicature. These maxims detail what participants in conversations do in order to converse in a cooperative, efficient and rational manner. The Cooperative Principle is to ‘[m]ake your contribution such as is required, at the stage at which it occurs, by the accepted purpose or direction of the talk exchange in which you are engaged’ (Grice 1975: 45). Grice’s series of ‘cooperative maxims’ are principles which can be discerned in well-formed conversation against a general background of rational cooperation. These maxims are:

The maxim of quality

Try to make your contribution one that is true, specifically:

  1. Do not say what you believe to be false.
  2. Do not say that for which you lack adequate evidence.

The maxim of quantity

  1. Make your contribution as informative as is required for the current purposes of the exchange.
  2. Do not make your contribution more informative than is required.

The maxim of relevance

Make your contributions relevant.

The maxim of manner

Be perspicuous, and specifically:

  1. avoid obscurity;
  2. avoid ambiguity;
  3. be brief;
  4. be orderly.

(Grice 1975: 45–46)

To communicate in an efficient, rational and cooperative way, speakers orient themselves to the maxims. Grice (1975) states that when a discourse does not proceed according to these maxims, the participants make the assumption that the Cooperative Principle is still being followed and attempt to produce inferences on this basis. There are five ways of failing to observe Grice’s maxims (Thomas 1995: 64–78). Four of these are from Grice himself and the fifth category has since been added by writers such as Keenan (1976; cited in Thomas 1995: 76). The five ways are flouting, violating, infringing, opting out of, and suspending a maxim. Maxims are flouted when the speaker ‘blatantly’ (openly and deliberately) fails to observe a maxim in order to generate a conversational implicature. Violating a maxim occurs when a speaker deliberately tries to mislead the hearer(s), for example by lying or knowingly withholding information. Infringing a maxim takes place when a maxim is not observed because of the inadequate linguistic competence of the speaker. Infringing maxims might be a result of not knowing the language well enough, insanity or drunkenness. Opting out of a maxim is when a speaker is unwilling to cooperate in the normal way. Examples of opting out of a maxim would be a speaker refusing to answer questions for legal or ethical reasons because he or she does not wish to violate a maxim. Suspending a maxim occurs on certain occasions when the participants have no expectations that the maxims will be observed. In reality, it seems that those involved, whether flouting, violating, infringing, opting out of, or suspending a maxim, act exactly the same way: i.e. they do not follow the maxim in question. This implies that not only for an outside observer, but also for the listener, it is very difficult to determine which type of breach has occurred. In this study, we instead focus on the non-observance of the maxims.

In most talk, even when a speaker’s expressed meaning does not seem to observe the maxims, hearers assume that the maxims are being observed at a deeper level and, through inference, attempt to retrieve the speaker’s implied meaning. If participants in conversations did not view talk as essentially cooperative, it would not be possible to generate implicatures (Grice 1975). As noted by some scholars (e.g. Brown and Levinson 1987; Levinson 1983; Mey 1985; Pfister 2010), Gricean maxims are not always observed and therefore they are not sufficient to explain some human communication, so a new interpretation of the Cooperative Principle is needed. As pointed out by Dascal and Wroblewski (1991: 422), rationality governing communication (including in the Gricean version) is indeed clearly normative. Davies (2007: 2308) also argues that a close study of Grice’s writing shows the concept of cooperation to be peripheral to his thought and the idea of rationality is central to human action. By the same token, Pfister (2010) suggests that the principle of rationality underlies human communication, and Grice’s theory, a rationality-based one (Ariel 2010), is naturally useful for human communication. Such new interpretations of the Gricean Cooperative Principle can in fact find their origin in the distinction between a deeper level and a surface level of observance (Grice 1975).

In legal settings, Grice’s Cooperative Principle is applicable not only in two-way communication, such as courtroom examination (Penman 1987), police interrogation (Linfoot-Ham 2006) and contracts (Frade 2002), but also in one-way events such as jury summation (Walter 1988) and legal interpretation (e.g. Dascal and Wroblewski 1991; Kaplan 1998; Poggi 2011). Linfoot-Ham’s (2006) study analysed the use of spoken language by suspects and witnesses being questioned by law enforcement officers, and concluded that successful manipulation of Grice’s Cooperative Principle may have some degree of subconscious influence on police officers’ decisions regarding a suspect’s guilt or innocence. In another study, Frade (2002) examined contracts in terms of how some maxims of a suitable cooperative principle between the parties are observed. Frade further proposed an adapted ‘Legal Cooperative Principle’, particularly for contracts, that reads: ‘Make your legal contribution such as required, during the course of contractual exchange, by the agreed purpose to which you are committed’ (2002: 340) under which Grice’s more specific maxims fall. Similarly, Cotterill (2010) made revisions of the Gricean maxims for witnesses in courtroom interaction.

In addition to two-way communication, Grice’s Cooperative Principle has been applied to some seemingly one-way events such as jury summation (Walter 1988) and legal interpretation (Dascal and Wroblewski 1991; Kaplan 1998; Poggi 2011). Using an ethnographic approach, Walter (1988: 13–15) found that the Cooperative Principle might well apply to some seemingly one-way events such as jury summation, suggesting that ‘the functioning of this principle in summation might lend evidence to maintaining that summation can be conceived of as two-way interaction, with jurors and lawyers cooperating’ (1988: 21). Walter’s conclusion that the maxims can be operational (although often flouted) in a discourse of one-way events provides useful implications for other studies (e.g. Dascal and Wroblewski 1991; Kaplan 1998; Poggi 2011). According to Dascal and Wroblewski (1991: 431), legislative texts should be conceived of as bearing a communicative message, from a sender to some receiver. During the process, rationality assumptions that govern communication – both in the Gricean and in the Habermasian versions – are indeed normative. In other words, the principle of rationality seems to be an underlying maxim governing all kinds of human communication, with legal interpretation included. Applying Gricean maxims, especially the maxim of Quantity, to the interpretation of wills, Kaplan (1998: 119–120) argued that we may assume that Gricean cooperativeness can be applied in interpreting legal discourse. Poggi’s (2011) study contrasted the interpretation of two types of legal acts: authoritative legal acts and acts of private autonomy, arguing that Gricean Theory is only applicable to the second type but not to the first type, due to the conflictual behaviour of the addressees and the insurmountable indeterminacy of the contextual elements.

The literature review thus far shows a gap in knowledge between studies on jury instructions and the application of the Cooperative Principle (Grice 1975) to jury instructions. To bridge this gap, the present study aims to examine jury instructions in Hong Kong in order to better explore how jury instructions are given in Hong Kong as a common-law jurisdiction, and to argue that the Cooperative Principle can be usefully applied to examine jury instructions in order to shed some light on the drafting of jury instructions.

3. The present study

The literature shows that the Cooperative Principle can be applied in legal settings ranging from two-way communication to one-way events. Even if the maxims are not observed in one way or another, we can still expect that judges and jurors are cooperative.

Before the handover of sovereignty from Britain to China in 1997, in Hong Kong, being a common-law jurisdiction, trial by jury in the Court of First Instance of Hong Kong was an essential and established feature of the legal system, especially in criminal cases. As noted by Duff, Findlay and Howarth (1990: 881), ‘following the establishment of a British colony in Hong Kong in 1843, the jury was one of the earliest features of English criminal justice to be adopted’. After the handover, Article 86 of the Basic Law of Hong Kong provides that the principle of trial by jury previously practised in Hong Kong should be maintained. According to the Jury Ordinance of Hong Kong, the responsibility for each juror on the jury is to ensure that justice is done. In Hong Kong, jury instructions were originally given orally. In order to prevent unnecessary errors and minimise duplication of effort, specimen jury instructions in writing appeared in 2008 and were updated in 2011. Specimen jury instructions help judges communicate more effectively with jurors, as they provide judges with patterns or templates of clear, brief and simple instructions in order to maximise jurors’ comprehension of legal points, to save time, and should, at least in theory, reduce the number of appeals that could result from faulty instructions in the process of professional–lay communication (Heffer 2005).

In this case-based study, the discussion is focused mainly on jury instructions in criminal cases[2] in the context of Hong Kong where the right of the accused to trial by jury is constitutionally guaranteed. It is the duty of a jury to decide facts by examining evidence and testimony presented before the court and then to apply the law, as instructed by the judge, to reach a verdict. Jury instructions are therefore crucial information intended to provide the jury with proper legal standards for rendering a verdict. The reality is, however, that the complexity of jury instructions may inhibit the juror’s ability to understand and apply the law. Grice’s Cooperative Principle, however, as demonstrated below, also applies to jury instructions where judges and juries are expected to be cooperative; that is, such rules may also have interpretative force with respect to jury instructions. Whenever a judge gives a jury instruction, there is a possibility for the non-observance of one or more of the conversational maxims. Cases in Hong Kong are no exception. The following examines the language in jury instructions in some Hong Kong reported cases to illustrate the ways in which the conversational maxims of quantity, quality, relevance and manner are not observed.

3.1. Maxim of quantity and jury instructions

In the ideal situation, a judge gives a jury instruction in a manner that observes the maxim of quantity, i.e., jury instructions should be neither uninformative (not as informative as is required) nor overinformative (more informative than is required) (Grice 1975: 45–46), although how much is necessary and what determines an optimal level of informativeness may vary from case to case. However, the maxim of quantity can be flouted, especially when a judge improvises his or her own instruction. When this maxim is not observed, with the cooperation between the judge and the jury being assumed, an implicature will arise from the jury’s perspective.

3.1.1. Uninformativeness

Upon application, jury instructions are sometimes reviewed by a high court to determine whether a judge sufficiently instructed the jury so that the jurors understood the issues involved and were not misled by the law. The trial court has broad discretion in formulating its charge to the jury, so long as it accurately reflects the law. Deference is given to the trial court’s discretion concerning the specific wording of the instruction, and the precise extent and character of any specific instruction will be reviewed for an abuse of discretion. Insufficiency or uninformativeness in a jury instruction usually constitutes grounds for an appeal. As Starr and McCormick comment (2011), jury instructions are often uninformative even to persons with legal training.[3] This point can be well explained in the case of Kwok Hing Tony v. HKSAR (HCCC [2007] 71 and CACC [2008] 26; reported in: [2010] 3 HKLRD 761).

In Kwok Hing Tony v. HKSAR (HCCC [2007] 71), the applicant was found guilty, in a jury trial, of all seven charges, including gross indecency, buggery and unlawful sexual intercourse. The applicant applied for leave to appeal against conviction. The only ground of appeal against conviction was that when the victims X and Y gave evidence, they alleged that apart from the seven offences charged, the applicant had also carried out similar acts on them on many occasions (referred to cumulatively below as ‘uncharged acts’).

In respect of this evidence of ‘uncharged acts’, the judge gave the following directions to the jury:

According to victim Y, in fact buggery and sexual intercourse were not restricted to the offences with which the Applicant is now charged … And victim X also said that in fact there was buggery on more than one occasion, of course you must remember you can only consider and decide whether he is guilty of the 7 charges which he is now facing, that is, those are only background material, … but the background is that in fact it is said that these were not the only occasions. (Emphasis added)

Further, Y had also said that the applicant had sexually violated her at the age of 4, and the judge gave directions to the jury as follows:

Now, you remember that Y said she had been sexually violated from the age of 4, she also said so in the note to the teacher, age 4, and I had told you yesterday, ‘you must not say because she had mentioned age 4, you can say “look, the defendant had committed the offence at age 4”’, don’t, because the charges now do not have such an event at age 4, but only those 4 occasions, what you must consider is that what Y has come to speak about are those 4 occasions.

An appeal was lodged to the High Court of Hong Kong. In the appeal the issue was whether the above directions which the trial judge gave to the jury were adequate. Whether evidence of ‘uncharged acts’ is admissible or not must be decided on the individual circumstances of each case, and the court is not bound to refuse to admit such evidence by reason of its nature alone (R v. M & Ors [2000] 1 WLR 421, 426-7; also see HKSAR v. Chan Pui Mun CACC [2006] 514). The court may admit evidence of ‘uncharged acts’ if its refusal to do so would result in the jury having an incomplete or incomprehensible account of events. However, if the court admits evidence of ‘uncharged acts’, the judge should be alert to two points when directing the jury on such evidence: (a) the standard of proof and (b) the use to which such evidence may be put.

As held in Kwok Hing Tony v. HKSAR CACC [2008] 26 before the Court of Appeal of Hong Kong, as far as the standard of proof was concerned, the trial judge did not tell the jury that they must not consider such evidence unless they were sure that the ‘uncharged acts’ had in fact occurred. The judge said only that the evidence of ‘uncharged acts’ was ‘background’ or ‘background material’. A mere mentioning of but not detailing ‘background’ and ‘background material’ is not adequate and may give the jury the impression that such evidence was uncontroversial, or may give the jury the impression that the defendant had a propensity to commit the offence. The judge’s direction to the jury, that the seven charges the defendant faced referred to specific dates and places, may have given the jury the impression that the ‘uncharged acts’ lacked only specific dates and places.

In summary, the trial judge failed to direct the jury on the standard of proof when considering the evidence of ‘uncharged acts’. The judge also failed to give adequate directions to the jury on the evidence of ‘uncharged acts’, resulting in unfairness to the applicant. The appeal was, therefore, allowed and the conviction was quashed due to the inadequacy of the jury instructions involved. This case demonstrates that the jury instructions should include what is necessary, and that omission of information, or being not as informative as is required in terms of the instruction on the evidence of ‘uncharged acts’, may bring about misunderstanding on the part of the jury, possibly resulting in injustice.

3.1.2. Overinformativeness

Overinformativeness may also mislead a jury, because overinformativeness ‘may be confusing in that it is liable to raise side issues; and there may also be an indirect effect, in that the hearers may be misled as a result of thinking that there is some particular point in the provision of the excess of information’ (Grice 1989: 46, original emphasis).

Overinformativeness in the jury instruction does not necessarily support every case for arguing that too much or unnecessary information has been given, because a court will not reverse a decision on the basis of an unnecessary jury instruction where such overinformativeness is harmless. In HKSAR v. Tang Kwok Wah (CACC [2000] 318; FACC [2001] 4), the applicant was convicted of indecent assault (count 3) and rape (count 6). The trial judge outlined the first two elements in rape, penetration and lack of consent, before turning to the last element the prosecution had to prove, and he directed the jury as to this in these terms:

[T]hey must thirdly prove at the time of the sexual intercourse, either the defendant knew that (the victim) did not consent or he was reckless as to whether she consented to the sexual intercourse. Now, the defendant would be reckless as to whether she consented to sexual intercourse if you were sure that he did not know and did not care whether she was consenting or not and carried on regardless. In other words, his state of mind was that he could not have cared less. (Emphasis added)

Only two statutory elements of rape – penetration and lack of consent – are required to establish a rape case. On appeal, it was submitted that the judge had misdirected the jury on the mental element in rape by including unnecessary information about ‘recklesness’. However, the Court of Appeal dismissed the appeal because ‘the judge’s directions were fuller than they needed to have been although in no sense did this cause prejudice to the Applicant’ (HKSAR v. Tang Kwok Wah CACC [2000] 318). The application for appeal was also refused by the Court of Final Appeal, holding that ‘it was not, however, a material irregularity as the Applicant could only have been assisted by it’ (HKSAR v. Tang Kwok Wah FACC [2001] 4). Such a contrast between the understandings of the applicant and the higher courts (the Court of Appeal and also the Court of Final Appeal) is a pertinent example of the different maxims for lay people and the law. For the jury, they may generate an implicature from the inclusion of detail; but the law does not care about that as long as the maxim of quantity is not breached too much.

3.2. Maxim of quality and jury instructions

Inherent in the role of the judge is to say what is true. In court, a judge shall not only say what he or she believes to be false but also shall not say what is false de facto. Of course, a judge shall not say that for which he or she lacks adequate evidence.

3.2.1. Saying false things

A judge, however, often violates the maxim of quality for some unknown reasons. The following case demonstrates that a false or incorrect expression will constitute a cause for appeal:

Each member of the jury, you should strive to reach a unanimous verdict, that is, a verdict upon which you all are agreed; whether guilty or not guilty. If however you are unable to do so, then the court can accept from you a verdict upon which at least five of you are agreed, in other words, a verdict of six-one, or five-two. But if it is lower (that is, four-three), it will not be accepted by the court. I repeat, the best is seven-zero; if not, then six-one; if not, then five-two. But four-three is not allowed, nor desirable. (Emphasis added, see HKSAR v. Tam King Hon HCCC [2000] 155)

In a normal case, if jury trial is used, a jury consists of five to seven jurors. According to the Jury Ordinance of Hong Kong,

[I]n the event of any of the jurors, after reasonable consultation, dissenting from the residue the verdict of the jury shall be determined as provided in the following. In a criminal trial– (a) where a jury of 7 persons has been sworn– (i) the verdict of a majority consisting of not less than 5 of them shall, subject to sub-paragraphs (ii) and (iii), be taken to be the verdict of the jury; (ii) if the number of jurors has been reduced to 6 in accordance with section 25, the verdict of a majority consisting of not less than 5 of them shall be taken to be the verdict of the jury; (iii) if the number of jurors has been reduced to 5 in accordance with section 25, the jury must be unanimous in their verdict. If in any trial it seems for any cause to be desirable, the judge may direct the jury to consider their verdict further.

In relation to unanimity, majority verdicts and a failure to agree, the effect of the instruction was that ‘anything other than a unanimous verdict or a verdict by a majority of at least five-to-two will be not accepted by the court’ and in particular that ‘four-three is not allowed, nor desirable’. This would obviously deter a jury from making such a decision. In this case, there is a possibility that one or more jurors might have felt compelled to a course resulting in the verdict reached, because the judge did create a risk of leaving the jury with the impression that disagreement was in no circumstances permissible and that four-three was never an option. But in fact a four-three vote is a permissible choice for a jury and is acceptable by court, but not as a valid verdict. If so, there will be a hung jury, and the case will be tried again with a new jury.

The appellant appealed to the Court of Appeal, but the Court of Appeal dismissed his appeal, holding that that although it contained a material misdirection on the standard of proof, having regard to other clear, unambiguous and proper directions, the summing up in its overall impact could have left the jury in no doubt as to how they should approach their task in respect of the standard of proof (see HKSAR v. Tam King Hon CACC [2001] 31). But the Court of Final Appeal, considering ‘at the stage of a summing up, at which time a jury has not begun to deliberate, it is usually not appropriate to refer to discharge of the jury in the event of a verdict of four to three’, held that the appeal should be allowed and the appellant’s convictions should be quashed (see HKSAR v. Tam King Hon FACC [2005] 14). The appropriate approach in a jury instruction when referring to a verdict of four-three, as rightly pointed out in Tam King Hon v. HKSAR FACC [2005] 14, shall be that contained in the Judicial Studies Board’s specimen directions on unanimous and majority verdicts as noted in Tam King Hon v. HKSAR [2006] 2 HKLRD 143:

You should strive to reach a unanimous verdict, that is, a verdict upon which you are all agreed; whether guilty or not guilty. If however you are unable to do so, then I am entitled in law to accept from you a verdict upon which at least five of you are agreed, in other words, a verdict of six-one, or five-two. A verdict of four-three either way does not constitute a valid verdict, and should that position arise I shall direct you further. (Emphasis added)

3.2.2. Saying things for which you lack evidence

In HKSAR v. Jim Fai HCCC [2001] 385, the instruction given by the trial judge complained of is as follows:

As a matter of fact, people being charged may not tell the truth, but that does not necessarily mean they are guilty … So, if you really don’t believe something the defendant has said or you think that he’s told lies, but maybe he has done it for reasons unrelated to guilt as are mentioned above, the only thing you should do is to disregard the part where he told lies, and concentrate on the part which you accept as truthful, and that includes evidence from the defendant which you regard as truthful … (Emphases added)

In the appeal by the applicant (see Jim Fai v. HKSAR CACC [2002] 383) before the Court of Appeal, the above instruction was attacked on two grounds: first, the trial judge had given the jury the wrong impression that the appellant had lied when he said he did not know of the existence of some items found in his flat; and second, the instruction was misleading and inadequate. The Court of Appeal, however, rejected both submissions, but accepted that the lies instruction was not necessary in the circumstances of this case. In the Court of Final Appeal (Jim Fai v. HKSAR FACC [2005] 8), Mr Bruce for the appellant submitted slightly differently that the effect of the instruction was such as to mislead the jury about the circumstances on which they could act or disregard the appellant’s evidence, and that it was possible that the jury might have thought that they could only act on the testimony of the appellant if they thought it was true. The Court of Appeal ruled for the appellant, considering that the point the trial judge made about lies, which is connected to something else rather than guilt, tended to give the jurors the impression that the defendant was dishonest and therefore guilty.

In this case, the instruction in question, saying that ‘people being charged may not tell the truth’ and presupposing that the defendant had told lies by saying that ‘maybe he has done it for reasons unrelated to guilt as are mentioned above’ and ‘the only thing you should do is to disregard the part where he told lies’, may cause the jury to infer that the appellant might be more inclined to lie than an ordinary witness, although there was a lack of evidence for such a perception. Such a misperception might cause the jury to discredit the defence evidence even before they came to the deliberation, which was obviously unfair to the defendant. Such an instruction had in effect wrongly directed that the jurors could take into account the defence evidence only when they were satisfied that it was truthful, thereby depriving the appellant of the benefit of any reasonable doubt which might arise. So the Court of Final Appeal concluded that ‘the misdirection complained of was a departure from accepted norms so serious as to constitute a substantial and grave injustice to the appellant’ (see Jim Fai v. HKSAR FACC [2005] 8).

3.3. Maxim of relation and jury instructions

If a judge includes some irrelevant information such as social impact, victim impact, the profile of a victim or profile of a defendant in a jury instruction, it is far from the ability of a jury to discern whether that information is relevant to a defendant’s conviction or not. Naturally, a jury might consider whatever is included in a jury instruction to be very important (e.g. Pickel 1995; Myers and Arbuthnot 1999).

On 28 December 2000, after a jury trial before the trial judge Nguyen J, the defendant was convicted of three counts of trafficking in heroin. The verdicts were unanimous (see HKSAR v. Tam King Hon HCCC [2000] 155, CACC [2001] 31, FACC [2005] 14). At the close of the case, the trial judge explained to the jury that they should take all the time they needed, saying ‘please take as long as you require’ and it was in this context that the judge said:

This is an important case, important for the public of Hong Kong and also very important for the defendant and the defendant is entitled to, and he would like you to give the evidence, the most careful consideration before you return verdicts (HKSAR v. Tam King Hon FACC [2005] 14).

On 8 May 2002, the Court of Appeal dismissed the defendant’s appeal. The Court of Appeal held that, although the instruction contained a material misdirection on the standard of proof, having regard to other clear, unambiguous and proper directions, the jury instruction in its overall impact could have left the jury in no doubt as how they should approach their task in respect of the standard of proof. Before the Court of Final Appeal (FACC [2005] 14), it was submitted that the trial judge had misdirected the jury by saying that the case was ‘important for the public of Hong Kong and also very important for the defendant’.

Every case in the criminal courts may be regarded as important for the public and of course also important for the defendant (see HKSAR v. Tam King Hon FACC [2005] 14). A jury may be confused by such a reference as to the particular significance of the case before them and whether the interests of the public may require a conviction. Maybe it is a routine expression for legal professionals, not leading to any implicature at all. But the reference to the case being important for the public of Hong Kong may bring a conventional implicature to the jurors that the case is particularly important (more so than other criminal cases), and the defendant should be convicted. Such an expression implying the particular importance of a case should therefore be avoided, because there is a risk that such reference causes jurors to feel the pressure that they have to join in with the majority view, even though they do not agree with it. That is, a judge should follow the maxim of relation in giving jury instructions. If irrelevant information included in a jury instruction has even the slightest potential to affect the outcome of a verdict, injustice may occur to the defendant (Brammer 1992; Cheng and Cheng 2010; Levy 1993; Myers and Arbuthnot 1999). This is because jurors usually do have difficulties in ignoring such information, even though they are instructed to disregard it (Cheng and Cheng 2010). In other words, jurors often react to evidence in a way not envisioned by the courts (e.g. Charrow and Charrow 1979; Heffer 2005). Prior to the sentencing stage, only those elements that are indispensable and factors that affect criminal liability (verdict) are expected to be mentioned, and factors that only affect sentencing constitute irrelevant information and should not ordinarily be included in an instruction (Cheng and Cheng 2010).

3.4. Maxim of manner and jury instructions

Rhetorical devices, such as analogy, metaphor or simile, which are often employed by effective communicators and persuaders, may help a jury understand an instruction, and this is particularly true when judges are seeking to clarify abstract ideas or legal concepts. However, vulnerability to attack should be considered before any rhetorical device is used. Inappropriate rhetoric can confuse jurors, bring about more than one interpretation among jurors, and thus violate the maxim of manner (avoiding ambiguity), which can constitute a ground for appeal and result in reversal or retrial.

In HKSAR v. Tam King Hon HCCC [2000] 155, the defendant was convicted of three counts of trafficking in heroin. The verdicts were unanimous. Towards the end of his summing up, the trial judge directed the jury as follows:

Now, members of the jury, when you retire to consider your verdict, I do not know whether any of you has ever served on a jury before, but if you have not, then I can tell you that when a jury works together, it is very much like a board of directors of a company having a meeting. And the foreman will chair the meeting and guide the direction that discussions should take. (Emphasis added)

The defendant appealed that a jury may be puzzled by such an analogy between a jury and a board of directors, because it might give the hearer an impression that a juror may subordinate his finding of facts to that of the majority in a jury. The Court of Appeal held that, notwithstanding the material nature of the misdirection, it considered that no miscarriage of justice had actually occurred. Accordingly, the Court of Appeal gave leave but treated the hearing as the appeal and dismissed it. But the Court of Final Appeal, on hearing a further appeal from the applicant, unanimously allowed the appeal, quashed the appellant’s convictions, and ordered a retrial.

In the Hong Kong judiciary, jury instructions that draw an inappropriate analogy between the function of the jury and the boardroom function have been the subject of a number of recent judgments (e.g. HKSAR v. Chan Ka Man [2005] 1; Tam King Hon v. HKSAR [2006] 2 HKLRD 143). The difference between the functioning of a jury and a board of directors of a company can be noted in Tam King Hon v. HKSAR FACC [2005] 14, para. 18[4]:

In the context of a board of directors, a director may sink his own view in deference to the different view held by a majority of directors. R v. Davey [1960] 1WLR 1287 at 1291-2. Whilst he remains unconvinced by the majority, he may decide not to continue to maintain his own view but to go along with the majority view for the sake of conformity or in order to achieve consensus.

In a jury trial, findings of fact are made by the jury while the judge makes legal rulings as to which evidence will be heard by the jury and which law governs the case. A juror has the responsibility of indicating his or her conviction, regardless of the voting intentions of the other jurors. Each juror’s vote of guilty or not guilty must be respected by other members of the jury and by the court, so to yield one’s own conviction to the pressure of the majority is to fail in one’s responsibility as a juror. In this case, the jury instruction’s reference to a board of directors was therefore regarded as inconsistent with the duties of a juror and the operation of a jury.

4. Discussion

The above case studies from the Hong Kong judiciary have illustrated instances of non-observance of the four maxims in jury instructions. When giving a jury instruction, the judge is addressing the jury on a point of law, which means that the use of legalese is inevitable. Given the complexity of legalese, problems are likely to arise in two ways: the way the judge delivers the message and the way the jury receives the message. Jury instructions are crucial in a jury trial because any failure to carry out this instruction correctly may constitute grounds for appeal if a miscarriage of justice could have occurred as a result of the misdirection. From a linguistic point of view, jury instructions are worth examining in legal discourse. Unlike other kinds of interactions in a legal setting which are mostly between professionals, the jury instruction is a professional–lay discourse (Heffer 2005). The judge therefore has to choose his or her words in jury instructions with great care in order to help the jury understand the legal rules that apply as fully as possible. In order to communicate in an efficient, rational and cooperative way, the judge should be unbiased (quality), relevant (relevance), clear and succinct (manner), and provide sufficient information (quantity) when delivering the jury instruction. However, appeal courts allow some latitude, which may differ from what is best for jurors in terms of their comprehension.

The present case-based study has demonstrated that the judges observe the Gricean Cooperative Principle and that the non-observance of the four maxims sometimes constitutes a good reason for appeal, but does not necessarily lead to the overruling of the previous decisions. In other words, the most ideal jury instruction is an instruction which satisfies Grice’s four conversational maxims of the Cooperative Principle. As Brown and Levinson put it, ‘these maxims are an intuitive characterization of conversational principles that would constitute guidelines for achieving maximally efficient communication’ (1987: 94–95). However, ‘the only essential presumption is what is at the heart of Grice’s proposals, namely that there is a working assumption by conversationalists of the rational and efficient nature of talk’ (1987: 4). The general principle of rationality is necessary and helpful to better explain natural communication (Dascal and Wroblewski 1991; Pfister 2010; Ariel 2010) and underlies the Cooperative Principle. So the Cooperative Principle seems particularly applicable to communication in legal settings in which rationality and reasonableness, a deep-level observance of Gricean maxims, are emphasised.

5. Conclusion

Although the judge’s non-observance of the maxims in giving jury instructions is not inherently improper, which shows the different ways of operation of Gricean maxims in legal and lay contexts, there can be occasions when such maxims are not only proper but necessary, which is an essential part of the true and proper administration of justice. As Levinson comments, ‘speakers do not always adhere to these maxims on a superficial level, but rather … wherever possible people will interpret what we say as conforming to [Grice’s] maxims on at least some level’ (1983: 103).

Grice’s theory, as noted by Ariel (2010: 128), ‘can account not only for our generally proper pragmatic behavior, but also for how it happens that we draw certain (and not other) inferences which accompany the explicit message’. These cases in the present study indicate that the higher court rulings usually tacitly follow Grice’s maxims in deciding the sufficiency and properness of a jury instruction, and interpret and infer the meaning of a jury instruction from a cooperative perspective.

Not every non-observance of the maxims in a jury instruction rises to the level of a due process violation; instead, the entire instruction is investigated when determining its accuracy. Whenever a maxim is not observed, the meaning or intention of a jury instruction is supposed to be understood under the frame of the Cooperative Principle. The court (usually the trial court) has broad discretion in formulating its instructions to the jury, so long as they accurately reflect the law. It is also true that the precise extent and character of any specific instruction may be reviewed by a higher court for an abuse of discretion.

About the authors

Le Cheng is Professor and Director of the Center for Legal Discourse and Translation at Zhejiang University. He is an adjunct professor at the China University of Political Science and Law. He is the Chief Editor of International Journal of Law, Language & Discourse, co-editor of Translated Series on Law and Language, Secretary General and Vice President of the Multicultural Association of Law and Language and the Scientific Committee of the International Academy of Linguistic Law. His interests and publications are in the areas of legal translation and interpreting, semiotics, language and law, LSP, corpus studies, jurisprudence, and discourse analysis.

Winnie Cheng is Associate Dean, Faculty of Humanities, Professor of English and Director of Research Centre for Professional Communication in English (RCPCE), Department of English, The Hong Kong Polytechnic University. She is a Founding Fellow of the Hong Kong Academy of the Humanities. Her research interests include corpus linguistics, conversation analysis, critical discourse analysis, discourse intonation, ESP, intercultural pragmatics and communication, professional and organisational communication, and writing across the curriculum.

Jian Li is Associate Professor of Forensic Linguistics and Phonetics, School of Foreign Languages, Zhejiang Gongshang University. Her interests and publications are in phonetics and phonology, legal discourse and translation, semiotics and discourse analysis.

Acknowledgments

We would like to thank the anonymous reviewers for their inspiring and helpful comments. The work described in this paper was substantially supported by a grant from the National Social Science Foundation of the PRC (Project No. 15BYY012) and a grant from the Research Grants Council of the Hong Kong Special Administrative Region (Project No. 1-ZV7D).

Notes

[1]. We used a search engine with ‘jury instruction’, ‘jury direction’ as the search words to preliminarily identify the cases, and then checked each reported case to compile data on jury instructions for the present study.

[2]. All these HK cases can be found in the Legal Reference System of the Hong Kong judiciary at http://legalref.judiciary.gov.hk/lrs/common/ju/judgment.jsp.

[3]. That the uninformative jury instructions may be considered to violate due process was documented in US cases at least as early as in 581 f2d 126 Roman R. Blenski v. Bronson Lafoll in 1978.

[4]. The first case in Hong Kong where the court held that a direction drawing an analogy between a jury and a board of directors was inappropriate and discussed the proper approach to directions on majority verdicts was HKSAR v. Tam King Hon (2006) 9 HKCFAR 206, decided on 6 April 2006. In an earlier judgment dated 7 January 2005, the Court of Appeal had expressed similar views: HKSAR v. Chan Ka Man [2005] 1 HKC 162. But it had been open to any applicant to take these points well before April 2006, and indeed before January 2005.

References

Ariel, M. (2010) Defining Pragmatics. Cambridge: Cambridge University Press. http://dx.doi.org/10.1017/CBO9780511777912

Brammer, M. (1992) Case notes: Eighth amendment no longer bars victim impact statement admission in capital sentencing proceedings. Cincinnati Law Review 61: 261–295.

Brown, D. (2000) Regulating decision effects of legally sufficient jury instructions. Southern California Law Review 73(5): 1105–1131. http://dx.doi.org/10.2139/ssrn.246498

Brown, P. and Levinson, S. C. (1987) Politeness: Some Universals in Language Usage. Cambridge: Cambridge University Press.

Charrow, R. P. and Charrow, V. R. (1979) Making legal language understandable: a psycholinguistic study of jury instructions. Columbia Law Review 79: 1306–1374. http://dx.doi.org/10.2307/1121842

Cheng, L. and Cheng, W. (2010) Language modeling for legal proof. In X. G. Jin, Y. G. Liu, T. R. Li and D. Ruan (eds) Proceedings of the 2010 IEEE International Conference on Intelligent Systems and Knowledge Engineering 533–537. Beijing: Institute of Electrical and Electronics Engineers, Inc. http://dx.doi.org/10.1109/iske.2010.5680745

Cotterill, J. (2010) Interpersonal issues in court: rebellion, resistance and other ways of behaving badly. In Miriam A. Locher and Sage L. Graham (eds) Interpersonal Pragmatics 353–380. Handbook of Pragmatics 6. Berlin: Walter de Gruyter.

Dascal, M. and Wroblewski, J. (1991) The rational law-maker and the pragmatics of legal interpretation. Journal of Pragmatics 15: 421–444. http://dx.doi.org/10.1016/0378-2166(91)90047-2

Davies, B. L. (2007) Grice’s Cooperative Principle: meaning and rationality. Journal of Pragmatics 39: 2308–2331. http://dx.doi.org/10.1016/j.pragma.2007.09.002

Duff, P., M. Findlay and Howarth, C. (1990) The Hong Kong Jury: A microcosm of society? International and Comparative Law Quarterly 39: 881-891. http://dx.doi.org/10.1093/iclqaj/39.4.881

Elwork, A., Sales, B. D. and Alfini, J. J. (1977) Juridic decisions: in ignorance of the law or in light of it? Law and Human Behavior 1: 163–190. http://dx.doi.org/10.1007/BF01053437

Elwork, A., Sales, B. D. and Alfini, J. J. (1982) Making Jury Instructions Understandable. Charlottesville, VA: Michie.

Frade, C. (2002) The legal Cooperative Principle: an essay on the cooperative nature of contractual transactions. International Journal for the Semiotics of Law 15: 337–343.

Gibbons, J. (2003) Forensic Linguistics: An Introduction to Language in the Justice System. Oxford: Blackwell.

Grice, H. P. (1975) Logic and Conversation. In P. Cole and J. L. Morgan (eds) Speech Acts 41–58. New York: Academic Press.

Grice, H. P. (1989) Studies in the Way of Words. Cambridge, MA: Harvard University Press.

Heffer, C. (2005) The Language of Jury Trial: A Corpus-Aided Analysis of Legal-Lay Discourse. New York: Macmillan. http://dx.doi.org/10.1057/9780230502888

Heffer, C. (2006) Beyond ‘reasonable doubt’: the criminal standard of proof instruction as communicative act. International Journal of Speech, Language and the Law 13(2): 159–188.

Kaplan, J. P. (1998) Pragmatic contributions to the interpretation of a will. Forensic Linguistics 5(2): 107–126. http://dx.doi.org/10.1558/sll.1998.5.2.107

Keenan, E. (1976) The universality of conversational postulates. Language in Society 5: 67–80. http://dx.doi.org/10.1017/S0047404500006850

Kimble, J. (2001) How to mangle court rules and jury instructions. The Scribes Journal of Legal Writing 8: 39–52.

Levi, J. N. (1993) Evaluating jury comprehension of Illinois capital sentencing instructions. American Speech 6(1): 20–49. http://dx.doi.org/10.2307/455834

Levinson, S. C. (1983) Pragmatics. Cambridge: Cambridge University Press.

Levy, J. H. (1993) Limiting victim impact evidence and argument after Payne v. Tennessee. Stanford Law Review 45: 1027–1060. http://dx.doi.org/10.2307/1229203

Linfoot-Ham, K. (2006) Conversational maxims in encounters with law enforcement officers. International Journal of Speech, Language and the Law 13(1): 23–54. http://dx.doi.org/10.1558/sll.2006.13.1.23

Mellinkoff, D. (1963) Language of the Law. Boston: Little, Brown and Company.

Mey, J. L. (1985) Whose Language: A Study in Linguistic Pragmatics. Amsterdam: John Benjamins. http://dx.doi.org/10.1075/pbcs.3

Myers, B. and Arbuthnot, J. (1999) The effects of victim impact evidence on the verdicts and sentencing judgments of mock jurors. Journal of Offender Rehabilitation 29: 95–112. http://dx.doi.org/10.1300/J076v29n03_05

Penman, R. (1987) Discourse in courts: cooperation, coercion and coherence. Discourse Processes 10: 201–218. http://dx.doi.org/10.1080/01638538709544672

Pfister, J. (2010) Is there a need for a maxim of politeness? Journal of Pragmatics 42: 1266–1282. http://dx.doi.org/10.1016/j.pragma.2009.09.001

Pickel, K. L. (1995) Inducing jurors to disregard inadmissible evidence: a legal explanation does not help. Law and Human Behavior 19: 407–424. http://dx.doi.org/10.1007/BF01499140

Poggi, F. (2011) Law and conversational implicatures. International Journal for the Semiotics of Law 24: 21–40. http://dx.doi.org/10.1007/s11196-010-9201-x

Schane, S. (2006) Language and the Law. London: Continuum.

Schwarzer, W. W. (1981) Communicating with juries: problems and remedies. California Law Review 69: 731–740. http://dx.doi.org/10.2307/3480238

Shuy, Roger W. (2007) Language in the American courtroom. Language and Linguistics Compass 1: 100–114. http://dx.doi.org/10.1111/j.1749-818X.2007.00002.x

Solan, L. M. (1999) Refocusing the burden of proof in criminal cases: some doubt about reasonable doubt. Texas Law Review 78: 105–147.

Starr, V. H. and McCormick, M. (2011) Jury Selection (4th edn). Amsterdam: Kluwer.

Steele, W. W. and Thornburg, E. G. (1988) Jury instructions: a persistent failure to communicate. North Carolina Law Review 67: 77–119.

Stygall, G. (1994) Trial Language: Different Discourse Processing and Discursive Formation. Amsterdam: John Benjamins. http://dx.doi.org/10.1075/pbns.26

Thomas, J. (1995) Meaning in Interaction. London: Longman.

Tiersma, P. (1999) Jury instructions in the new millennium. Court Review 36: 28–36.

Tiersma, P. (2001) The rocky road to legal reform: improving the language of jury instructions. Brooklyn Law Review 66: 1081–1085.

Tiersma, P. (2006) Communicating with Juries: How to Draft More Understandable Jury Instructions. Williamsburg, VA: National Center for State Courts [originally published in The Scribes Journal of Legal Writing 10: 1–54 (2005–2006)].

Walter, B. (1988) The Jury Summation as Speech Genre: An Ethnographic Study of What it Means to those Who Use it. Amsterdam: John Benjamins. http://dx.doi.org/10.1075/pbns.1

Refbacks

  • There are currently no refbacks.





Equinox Publishing Ltd - 415 The Workstation 15 Paternoster Row, Sheffield, S1 2BX United Kingdom
Telephone: +44 (0)114 221-0285 - Email: info@equinoxpub.com

Privacy Policy