Legal English Difficulties and Ways to Overcome

This article is devoted to the study of legal English and its main characteristics. Legal language is the language used by legal professionals in their professional activity. That fact that historically legal English developed separately from the plain English made it difficult for understanding by laypeople. People find the traditional legal writing in such documents as jury instructions, security disclosures, credit card agreements, apartment leases, cell phone contract, promissory note etc. Even native English speakers often complain that they cannot fully understand the documents written to give them information. The understanding of legal English has been a problem for centuries. It was the cause why the plain English movement arose in the 1970s. The purpose of the movement was to simplify the legal writing, make it simple and clear for average people. This problem arises not only for those people whose native language is English. Nonnative speakers also struggle with the complexity of English legal writing. Ukrainian legal professionals that engaged in the area of international, business or corporate law, have to draft documents in English. Sometimes that could be a real problem because unlike English and American legal schools, the majority of ours don't provide the separate course of English legal writing. The purpose of this article is to give practical advice to Ukrainian lawyers and interpreters, how, taking into account the peculiarities of legal English discourse, to draft documents in clear, simple and understandable way. Results of research. A lot of English and American scientists, lawyers as well as linguists, devoted their studies to the plain English movement. Analysis of their works shows that four major factors had influenced on the development of legal English: historical, sociological, political and jurisprudential. Owing to them legal English is full of words of foreign origin, archaisms, argots and terms of art. These factors also caused the frequent usage of formal words, common usage of common words with uncommon meaning, deliberate ambiguity in legal writing. The studies of legal writing by lawyers have focused basically on vocabulary. Linguists in their researchers have identified some other features: overly complex sentences, passives, nominalizations, multiple negations, archaisms and jargon, inappropriate document design. Described ways of simplifying legal English are quite easy to use. Taking into account tips mentioned in the article, legal professionals will be able to draft documents that will be clear and understandable for general public.

Modelling Perjury: Between Trust and Blame

I investigate: (1) to what extent do folk ascriptions of lying differ between casual and courtroom contexts? (2) to what extent does motive (reason) to lie influence ascriptions of trust, mental states, and lying judgments? (3) to what extent are lying judgments consistent with previous ascriptions of communicated content? Following the Supreme Court’s Bronston judgment, I expect: (1) averaged lying judgments to be similar in casual and courtroom contexts; (2) motive to lie to influence levels of trust, mental states ascriptions, and patterns of lying judgments; (3) retrospective judgments of lying, after being presented with the state of the world, to be inconsistent with previous judgments of communicated content: participants hold the protagonist responsible for content she did not communicate. I performed a survey experiment on the Qualtrics platform. Participants were recruited through Amazon Mechanical Turk (N = 630). I employed standard Likert scales and forced-choice questions. I found that: (1) average lying judgments are similar in casual and courtroom contexts; (2) motive to lie decreases trust ascription and increases lying judgment; (3) judgments of lying are inconsistent with previous judgments of communicated content: participants hold the protagonist responsible for content they did not communicate (effect size of the difference d = .69). Perjury ascriptions are inconsistent. The Supreme Court’s worries expressed in the Bronston judgment are well founded. This article helps reforming jury instructions in perjury cases.

The Scope of the Willful Ignorance Doctrine (II)

This chapter argues that willful ignorance involves breaching a duty to reasonably inform oneself, and the equal culpability thesis holds when one breaches it in a sufficiently serious way before doing the actus reus. This chapter thus offers a limited defense of the equal culpability thesis. The chapter argues that the willful ignorance doctrine requires reform. To remain faithful to the courts’ “traditional rationale” for this doctrine, knowledge should not be imputed in just any case of willful ignorance (as many courts allow), but only when one’s willful ignorance rendered one’s conduct as culpable as the analogous knowing wrong. Identifying a defensible version of the equal culpability thesis thus places constraints on the proper application of the willful ignorance doctrine. The chapter then discusses how to formulate workable willful ignorance jury instructions that also lower the risk of injustice.

Belief States in Criminal Law

Belief-state ascription—determining what someone “knew,” “believed,” was “aware of,” etc.—is central to many areas of law. In criminal law, the distinction between knowledge and recklessness, and the use of broad jury instructions concerning other belief states, presupposes a common and stable understanding of what those belief-state terms mean. But a wealth of empirical work at the intersection of philosophy and psychology—falling under the banner of “Experimental Epistemology”—reveals how laypeople’s understandings of mens rea concepts differ systematically from what scholars, courts, and perhaps legislators, have assumed.As implemented, mens rea concepts are much more context-dependent and normatively evaluative than the conventional wisdom suggests, even assuming that jurors are following jury instructions to the letter. As a result, there is less difference between knowledge and recklessness than is typically assumed; jurors consistently “over”-ascribe knowledge to criminal defendants; and concepts like “belief,” “awareness,” and “conscious disregard” mean different things in different contexts, resulting in mens rea findings systematically responsive to aspects of the case traditionally considered irrelevant to the meaning of those terms.This Article provides the first systematic account of the factors driving jurors’ ascriptions of the specific belief states criminal law invokes. After surveying mens rea jury instructions, introducing the Experimental Epistemology literature to the legal literature on mens rea, and examining the implications of that literature for criminal law, this Article considers ways to begin bridging the surprisingly large gap between mens rea theory and practice.

On the limitations of a unitary model of the proof process

In defense of their “explanatory” theory of the proof process, Professors Ronald Allen and Michael Pardo maintain that a successful theory of this kind should correspond to the way that jurors actually reason, to the structure of American trials, and to typical jury instructions. They also demand that such a theory should be normatively defensible. This response suggests that using a single theory to cover such disparate ground obscures more than it clarifies, given the important gaps between psychological, doctrinal, and normative aspects of the fact-finding process.

The Intractability of Inaccurate Eyewitness Identification

Inaccurate eyewitness testimony is a leading cause of wrongful convictions. As early as 1967, the U.S. Supreme Court recognized this danger, but the tests it promulgated to distinguish reliable from unreliable eyewitness testimony were based largely on surmise. More recently, substantial research has demonstrated that, while significant improvements can be made in the manner in which lineups, photo arrays, and other identification procedures are conducted, inherent limitations of human perception, memory, and psychology raise, in many cases, intractable barriers to accurate eyewitness testimony. Where barriers to accurate eyewitness testimony exist, one response is to sensitize jurors to the limitations of eyewitness identifications, but studies to date have not shown that special jury instructions can accomplish that purpose. Moreover, research on expert testimony has produced mixed results, with some studies showing that it helps jurors discriminate between good and bad eyewitness evidence, and other studies showing that it merely creates overall skepticism.