Jury instructions.

I am offering a possible solution to the recurrent problem of defective jury instructions.

In the past few months, the Supreme Court has decided that the former instruction on manslaughter was not only defective but fundamentally erroneous. Convictions that were on hold pending this decision are now being reversed for new trials.

As you know, jury instructions are approved for use by the Supreme Court with the proviso that the enactment is not the final word on the instruction's legality. As puzzling as this procedure might seem to a lay person--why would the high court enact something the legal accuracy of which is uncertain?--there might be a way to lessen the chances that the jury instruction will later be found to be defective.

Reliance on the well-intentioned and dedicated Bar committees, whose members devote their free time to the cause of justice, to propose and refine jury instructions does not seem to be working out so well. The manslaughter instruction problem is but one of several recent such glitches. In addition to embarrassing the committee, these conviction reversals result in often very expensive retrials. Second degree murder or manslaughter cases, or cases involving attempted murder, often involve dozens of witnesses and extensive travel costs. The costs of retrials are also not simply monetary in nature. The victims (in attempted...