Revisiting helping jurors understand the burden of proof.
The importance of helping jurors understand the burden of proof is underlined by a recent New York ruling reported by Law.com throwing out a verdict because the jurors consulted a dictionary to try to figure out what the word "preponderance" meant. The trial judge had instructed the jury the plaintiff had to prove her case by a "preponderance of the evidence."
The article focuses on what the jurors did wrong and how the trial court fixed it. I wonder why the jurors felt a need to consult the dictionary in the first place?
I use the phrase "greater weight of the evidence" rather than "preponderance of the evidence" in the instructions I submit to the course because "preponderance" is not a term most folks use in conversation. If used in an instruction without being defined, I can appreciate why a juror might feel a need to look the term up to make sense of it.
The attorneys and the court need to start explaining the burden of proof in voir dire and, as noted earlier, even witness testimony needs to be used bolster the jurors' appreciation of how the evidence meets--or does not meet--the burden. Even the phrase "greater weight of the evidence" can be misunderstood as referring to quantity not quality or credibility.