All Words are Made Up: Thoughts on Using Dictionaries for Statutory Interpretation

I am a huge fan of the Marvel Cinematic Universe, and one of my favorite lines comes from Thor in Avengers:  Infinity War.  Thor and the Guardians of the Galaxy are trying to stop the mad Titan Thanos from destroying half of all life, and Thor suggests they go to a place where he can get a special “Thanos-killing” weapon made:

Thor : Where we have to go is Nidavellir.

Drax : That’s a made-up word.

Thor : All words are made up.

Though this statement is obviously true, the law clerk in me was—as my teenage daughter would say—shook, thinking of how many times I had turned to a dictionary as an authority when analyzing an issue involving statutory interpretation.  Not once had I questioned the wisdom of this practice until Thor so succinctly noted that “all words are made up.”

My state’s governing law very clearly allows appellate courts to consult the dictionary to determine a word’s “plain meaning.”  See, e.g., State ex rel. Burns v. Whittington, 219 S.W.3d 224, 225 (Mo. 2007) (en banc) (“In the absence of statutory definitions, the plain and ordinary meaning of a term may be derived from a dictionary[.]”).  And I assume most jurisdictions are the same.  The United States Supreme Court, itself, has increasingly relied on dictionary definitions to resolve issues of statutory interpretation.[i]  And there are multiple law review articles analyzing which dictionaries are relied on the most and by whom.[ii]

Yet the same appellate courts would likely find error (prejudicial effect to be determined) if a juror consulted a dictionary during deliberations.[iii]  This begs the question:  why do appellate courts so easily rely on dictionaries but find it erroneous for jurors to do the same? 

Before getting into that question, it’s worth exploring the nature of dictionaries and how they function. 

I. How dictionaries work

Dictionaries are the epitome of a “work in progress”; they are constantly evolving because language is constantly evolving.[iv]  And they are continuously edited by a team of lexicographers, who track numerous terms, read copious amounts of writing and transcribed speeches, and use corpora (“big, searchable collections of texts”) to discern actual word usage.[v]  Using this research, they generate “concise, informative definitions (along with supplementary information, such as pronunciations or notes about whether a word is offensive, for example).”[vi] 

The vast majority of modern dictionaries use a descriptive approach, which reflects common usage of words,[vii] but earlier dictionaries—including some of Noah Webster’s early work[viii]—took a prescriptive approach, providing rules as to what proper usage should be.[ix]  Under the descriptive approach, generally, before a word is added to the dictionary, it must meet four criteria:  (1) “relatively widespread use”; (2) “a widely agreed-upon meaning”; (3) “staying power—meaning it’s likely to be used for a long time”; and (4) “useful for a general audience.”[x]

II. Why juries may not use them

It is not unusual for jurors to want “to investigate the dictionary meaning of commonly used words.”[xi]  But, generally speaking, “[t]he use of a dictionary or other similar nonlegal materials by the jury during their deliberations constitutes jury misconduct [because i]t introduces outside information into the process and falls outside the tolerable bounds of jury deliberations.”[xii] Allowing a jury to use a dictionary “to obtain further understanding of the court’s instructions poses a risk that the jury will misunderstand the meaning of terms [that] have a technical or unique usage in the law.”[xiii]

Yet, at the same time, “[t]he definition of words in our standard dictionaries is taken as a matter of common knowledge, which the jury is supposed to possess.”[xiv] And, “[w]hen words are not specially defined by the Legislature, they are to be understood as ordinary usage allows, and jurors may freely read the statutory language to have any meaning [that] is acceptable in common speech.”[xv] “If this were not so, every word in every instruction would have to be defined for the jury.”[xvi] 

Though it certainly makes sense to not allow a jury to use a dictionary if the court has already provided the legal definition of a term or if the term has a specialized or unique meaning within the context of the case, it seems considerably less concerning to allow the jury to consult a dictionary for ordinary terms, especially when the appellate courts do so routinely.[xvii]

And that brings me to my next point—why do appellate courts feel so free to rely on the dictionary?[xviii]

III. Authority for appellate court usage of dictionary definitions

The short answer is that appellate courts feel free to do so because the United States Supreme Court has sanctioned reliance on dictionaries since at least 1919 under the theory of judicial notice.[xix] Both the Federal Rules of Evidence and many state rules allow judicial notice of “facts” from “sources whose accuracy cannot reasonably be questioned.”[xx]  And courts applying these rules have expressly concluded that dictionary definitions are such facts.[xxi]

What I find interesting about this approach is that it is rare for any two dictionaries to define a word in precisely the same way.[xxii] And, even when viewing the same dictionary, judges sometimes reach opposite conclusions as to meaning.[xxiii]  Additionally, it is a long-standing mantra of appellate practice that the court is bound by the facts in the record and will not consider outside facts (much like a jury is bound by the evidence and law presented to it during trial).  So, if dictionary definitions are facts, absent some general law in the jurisdiction that all words not defined are to be given their meaning as identified in a specific dictionary, it would seem that any definitions an appellate court wishes to rely upon should be in the record before they may be considered.[xxiv]  Otherwise, using these kinds of outside-the-record facts runs the risk that the court may interpret a word differently than the fact-finder did.  In light of the various challenges using dictionaries present, some authors have advocated that appellate courts use dictionaries with caution and only ever as a starting point rather than an ending point for statutory construction.[xxv]

But should courts use them at all?

IV. The democratic and constitutional implications of using dictionaries

When appellate courts use dictionary definitions, they typically do so to discern legislative intent behind statutory language.  Jurors wishing to use dictionary definitions have a similar, albeit slightly distinct, goal—to understand the law and how to apply it to the facts before them.  But all of it may be an exercise in futility.

“Legislators do not consult dictionaries or incorporate by reference dictionary definitions in drafting statutes.”[xxvi] “Dictionary definitions are not themselves statutes in which the precise words chosen and those omitted have binding legal effect.”[xxvii] And, given the evolving nature of language, does it comport with due process to apply a definition to conduct a person engaged in without some guidance as to how that definition will be discerned?

When a legislature or Congress enacts a statutory definition, it becomes a matter of law, rather than fact. And if their respective constituencies do not approve, the voters can express that disapproval at the ballot box. But no such power exists over lexicographers. Nor should it, because “[t]he lexicographer is a[n] historian, not a lawgiver.”[xxviii] And “[m]odern lexicographers . . . do not expect their definition to give the absolute meaning of the word.”[xxix] 

Yet our appellate courts give those definitions the force of law and often sneer at an arguably more democratic approach to defining terms through crowdsourcing on websites such as Wikipedia or Urban Dictionary.[xxx]

So, what role—if any—should dictionary definitions play in the justice system?

Given that most dictionaries, including crowd-sourced ones, are descriptive in nature, the definitions they contain are simply evidence of language usage, snapshots in time, and they should be treated as such.  Thus, dictionary definitions should come into play only where there’s a factual question about how a word or phrase was used at a given time.[xxxi] Jurors should be encouraged to discuss the meaning of words and phrases that are not defined by court instructions and reach a common understanding.  And appellate courts should limit themselves to the discussion of definitions appearing in the record.  By using dictionary definitions to determine the legal import of words, appellate courts are transforming descriptive dictionaries into prescriptive ones—indicating what words should mean, rather than reflecting how they are actually used.

[i] James J. Brudney & Lawrence Baum, Oasis or Mirage: The Supreme Court’s Thirst for Dictionaries in the Rehnquist and Roberts Eras, 55 Wm. & Mary L. Rev. 483, 495 (2013) (“dictionary usage in the twenty-five years of the Rehnquist and early Roberts eras (October 1986 to June 2011) more than doubled the Court’s total usage in the previous 186 years”).

[ii] See, e.g., Samuel A. Thumma; and Jeffrey L. Kirchmeier, The Lexicon Has Become A Fortress: The United States Supreme Court’s Use of Dictionaries, 47 Buff. L. Rev. 227, 262–63 (1999); Nora Coon, 162 Years of Dictionary Use in the Oregon Appellate Courts, 55 Willamette L. Rev. 213 (2019); Brudney & Baum, supra note i.

[iii] See Prejudicial effect of jury’s procurement or use of book during deliberations in criminal cases, 35 A.L.R.4th 626, §§5(a), (b) (1985) (noting cases where a jury’s procurement or use of a dictionary—though generally error—was either prejudicial or not, depending upon circumstances).

[iv] How New Words Get Added To Dictionary.com—And How The Dictionary Works (May 12, 2023), available at:  https://www.dictionary.com/e/getting-words-into-dictionaries/ (last accessed Aug. 6, 2023).

[v] Id.

[vi] Id. 

[vii] A Word on ‘Descriptive’ and ‘Prescriptive’ Defining, available at: https://www.merriam-webster.com/grammar/descriptive-vs-prescriptive-defining-lexicography (last accessed Aug. 6, 2023). Whether “offensive” words should be included in dictionaries is its own subject of debate. See How New Words Get Added to Dictionary.com, supra note iv.

[viii] See Peter Martin, The Dictionary Wars, pg. 43 (Princeton University Press 2019).  One judge described Webster’s Dictionary as “stupendous work, filled with inconceivable words and maxims and aphorisms,” before declaring, “No book should be consulted by a jury in arriving at a verdict, and especially one that defines and treats on everything expressed by the English language. No maker of dictionaries should ever be allowed to define legal terms to a jury, unless such definitions go through the medium of the trial judge, the only one authorized by law to give definitions and explanations to a jury.”  Corpus Christi St. & Interurban Ry. Co. v. Kjellberg, 185 S.W. 430, 432 (Tex. Civ. App.–San Antonio 1916), overruled by Travelers Ins. Co. v. Arnold, 378 S.W.2d 78 (Tex. Civ. App.–Dallas 1964).

[ix] A Word on ‘Descriptive’ and ‘Prescriptive’ Defining, supra note vii.

[x] How New Words Get Added to Dictionary.com, supra note iv.

[xi] In re Cory’s Est., 169 N.W.2d 837, 845 (Iowa 1969).  In a somewhat humorous event, one jury googled the phrase “common sense” because it was so heavily emphasized by counsel for both sides and the court.  Gunera-Pastrana v. State, 137 Nev. 295, 299–300 (2021).

[xii] State v. Tinius, 527 N.W.2d 414, 417 (Iowa App. 1994) (internal citation omitted).

[xiii] People v. Karis, 46 Cal. 3d 612, 642 (1988).  In a Washington case, the court noted a specific concern that arose with respect to the jury relying on Black’s Legal Dictionary—that the definitions provided therein frequently “contain[] legal premises not applicable to the facts of th[e] case, . . . which could . . . confuse[] or misle[a]d the jury.”  Adkins v. Aluminum Co. of Am., 110 Wash. 2d 128, 138 (1988), clarified on denial of reconsideration, 756 P.2d 142 (Wash. 1988).

[xiv] In re Cory’s Est., 169 N.W.2d at 846.  See also Dawson v. Hummer, 649 N.E.2d 653, 665 n.3 (Ind. App. 4th Dist. 1995) (“terms within regular dictionaries are generally believed to be within the common knowledge of a jury”).

[xv] Teer v. State, 923 S.W.2d 11, 19 (Tex. Crim. App. 1996).

[xvi] Alvarez v. People, 653 P.2d 1127, 1134 (Colo. 1982) (en banc) (Rovira, J., concurring in part, dissenting in part).

[xvii] See id. (noting the seeming hypocrisy of appellate courts relying on dictionaries for ordinary terms but finding error when a jury does the same).

[xviii] The Indiana Court of Appeals noted a distinction “between referring to a dictionary in a factfinding setting for the purpose of judicially noticing the meaning of a word, on one hand, and consulting such a source upon appellate review to discern the meaning of a term for purposes of, for example, statutory construction.”  Campbell v. Shelton, 727 N.E.2d 495, 501 (Ind. App. 2000).  But the court failed to elaborate on what that distinction might be.  It seems to be one without a difference, given that the purpose in both scenarios is the same:  to apply the law to the set of facts before the jury to determine whether the conduct at issue falls within the statute’s coverage.

[xix] Werk v. Parker, 249 U.S. 130, 132–33 (1919) (holding that it was “clear, beyond question—that the [appellate] court was justified in taking judicial notice of facts that appeared so abundantly from standard works accessible in every considerable library”).

[xx] E.g., Fed. R. Evid. 201(b)(2); Ky. R. Evid. 201(b)(2); Ind. R. Evid. 201(a)(1)(B); Or. Rev. Stat. § 40.065(2).

[xxi] See, e.g., Stokes v. Com., 275 S.W.3d 185, 188 (Ky. 2008); Campbell, 727 N.E.2d at 501; In re Compen. of Calder, 157 Or. App. 224, 227 (Or. App. 1998).  Though dictionaries are largely considered accurate, they are not above the occasional mistake.  A well-known error is the word “dord.”  Dord “was recorded in Webster’s Second in 1934 on page 1711, where it remained undetected for five years.” Herbert C. Morton, The Story of Webster’s Third, pg. 119 (Cambridge University Press 1994). But dord was a ghost-word. It was identified as meaning “density,” but, in fact, it was meant to be an abbreviation—“D or d”—for the term density.  Id. But the entry was misdirected to the “word” department, rather than the “abbreviation” department, and thus became a word entry for a brief period of time.  Id.

[xxii] This may be partially a copyright issue.  See, e.g., Richards v. Merriam-Webster, No. 1:13-cv-13092-IT, memo. & order granting S.J. (Sept. 26, 2014), available at:  https://casetext.com/case/richards-v-merriam-webster-inc-1 (last accessed Aug. 6, 2023).

[xxiii] See Thumma & Kirchmeier, supra note ii at 274–75 (identifying cases).

[xxiv] The Ninth Circuit suggested that, when “[q]uestions or disputes as to the meaning of terms . . . arise during jury deliberations[, they] should be settled by the court after consultation with counsel, in supplemental instructions. Such guidance will avoid the danger that jurors will use the dictionary to construct their own definitions of legal terms which do not accurately or fairly reflect applicable law.”  U.S. v. Birges, 723 F.2d 666, 670–71 (9th Cir. 1984).  This would also ensure that the appellate court applies the same interpretation of terms as the fact-finder.

[xxv] Thumma & Kirchmeier, supra note ii at 293-301.

[xxvi] Ellen P. Aprill, The Law of the Word: Dictionary Shopping in the Supreme Court, 30 Ariz. St. L.J. 275, 299 (1998).  Congress has, however, legislated interpretation of certain words used in the statutes in the Dictionary Act.  1 U.S.C. §§ 1-8.

[xxvii] Aprill, supra note xxvi at 300.

[xxviii] Id. (quoting Jonathon Green, Chasing the Sun: Dictionary Makers and the Dictionaries They Made 16 (1996)).

[xxix] Aprill, supra note xxvi at 285.

[xxx] Jason C. Miller & Hannah B. Murray, Wikipedia in Court: When and How Citing Wikipedia and Other Consensus Websites Is Appropriate, 84 St. John’s L. Rev. 633, 639 (2010). On these crowdsourced websites, anyone may contribute and/or vote on the accuracy of information provided.  Id. at 638, 654-55.  And there is transparency with respect to the number of votes in favor and in opposition to definitions and various source material for information contributed.  In State v. Rasabout, 356 P.3d 1258, 1281 (Utah 2015), Associate Chief Justice Lee suggested that, rather than rely on dictionary definitions, courts should consult the Corpus of Contemporary American Usage, “the largest freely available corpus of English, and the only large and balanced corpus of American English.”  But this suggestion puts appellate judges in the shoes of lexicographers, a profession they are unlikely to be trained in, which seems even worse than relying on dictionary definitions that are created by trained, professional lexicographers.

[xxxi] For example, there is frequently a factual question as to the meaning of words or phrases in criminal matters, where slang or code is often used. Issues as to word usage and meaning also frequently arise in contract disputes.