Thumb on the Scale: An Empirical Study of Judge Drafted Jury Instructions

Abstract

Jury instructions—the rules for jury deliberation approved by the judge and read to the jury during trial—are an important communication between judges, parties, and jurors. Parties and judges draft these instructions with trials in mind and judges possess substantial discretion over this critical process, deciding the law in a case. Given prosecutor power, strategic disadvantages of defense counsel and powerful role of federal magistrate judges, the courtroom provides a unique venue to how judges wield this powerful policy process. Despite substantial research on judicial decision-making, we know little about how a judge’s prior professional experience, like work as a prosecutor, public defender, or federal magistrate judge affects when a judge drafts their own version of jury instructions. To test this, I constructed an original dataset of 1,389 federal criminal trial cases from 23 districts for 2015–2018. Logistic regression analysis suggests experience as a public defender and federal magistrate judge matters in whether a judge files their own draft of the instructions. This finding presents evidence that a judge’s professional background affects their decision-making in this critical stage of a case. This research has broad implications for judicial appointments, judicial decision-making theory, legal policy, and future trial courts research.