Alaska Law - Jury Instructions
So this comes from the official Alaska Pattern Civil Jury Instructions:
"Plaintiff claims that (he/she) was damaged because defendant misrepresented certain information. In order to win on this claim, the plaintiff must establish it is more likely true than not true that:
[seven separate elements]
If you decide that it is more likely true than not true that each of these things happened, then your verdict must be for the plaintiff. Otherwise, as to this claim, you must find for the defendant."
Okay, so what does the word "each" mean? Does that mean literally that each of the seven elements have to be "more likely true than not"? If this is correct, each of the elements could be true with probability 2/3, prompting a finding for the plaintiff even though the set of seven elements is collectively true only with probability 128/2187, or less than 6%. So what is my strategy if i'm the plaintiff? Obviously i try to find some way to split my claim into as many separate elements as possible. Conversely, as a defendant, i want to consolidate as many of the elements as i can so as to raise the overall probability threshold it takes to find against me..
Of course, this interpretation is absurd, right? It seems the only reasonable way to set things up is to require at least 50% chance that the entire set of elements is true, right? But if the state wanted that to be the case, wouldn't it have used the word "all" in place of the word "each"? Conversely, if the state actually wanted to create the absurd situation mentioned above, the single most efficient way to do so would be to use the word "each" as it did..
Consider further the relative difficulty on the part of the jury in employing the more "reasonable" method. Juries are typically instructed, depending on the circumstances, that the standard of proof must be "preponderance of the evidence" (greater than 50%) or "beyond a reasonable doubt" (virtual certainty). Each of these is easy for the lay person to grasp, but what instructions do we give the jury for each element if we adopt the more "reasonable" method? Do we instruct the jury that each of the elements must be true with probability greater than (.5)^(1/7)? Or do we tell the jury to determine the separate probabilities for each element, multiply them together, and then determine if the product is greater than 1/2? Even if we do, we ignore the fact that the elements might not constitute independent events and thus their probabilities cannot be multiplied..
With no further instructions to work from, it looks like a jury is left either to take the literal interpretation by going through each of the elements and making a decision for each at the 50% threshold, or to adopt the more "reasonable" interpretation by considering the elements holistically and asking itself whether the set is at least 50% likely to be true. The former pushes the overall probability threshold below 1%, but the latter absolves juries of the responsibility to consider each element separately. Neither one of these is appealing, but i don't see an easy fix..
i guess the bottom line is that this problem is not as straightforward as it first appeared. Clearing up all the ambiguity and absurdity in these jury instructions will take more than just changing the word "each" to "all". Of course a literal interpretation is absurd, but if we adopt a more "reasonable" interpretation we are faced with greater difficulty than just neglecting the literal meaning. We also must consider that it places an expectation on juries to know how a number of probabilities of not-necessarily independent events combine into an overall probability, a task that in reality is more likely going to be accomplished by a jury simply making one overall decision without considering the elements separately as we assume it should given the state's emphasis on the severability of the elements..


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