Failure To Instruct On Lesser Included Offense In Non-Capital Case Is Not Constitutional Error (5th Circuit)

The Fifth Circuit Court of Appeals has repeatedly made it clear that a state trial court judge's failure to instruct on a lesser-included offense is not a federal constitutional matter. Creel v. Johnson, 162 F.3d 385, 390 (5th Cir. 1998); Valles v. Lynaugh, 835 F.2d 126, 127 (5th Cir. 1988); Alexander v. McCotter, 775 F.2d 595, 601 (5th Cir. 1985); Easter v. Estelle, 609 F.2d 756, 758 (5th Cir. 1980).

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300.7 Failure To Instruct On Lesser Included Offenses In Noncapital Case

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PG VII(C)(13) Failure To Instruct On Lesser Included Offenses In Noncapital Case

Right To Defense Theory Instruction (Connecticut)

"[A] fundamental element of due process of law is the right of a defendant charged with a crime to establish a defense. . . . “ State v. Ebron, 292 Conn. 656, 685, 975 A.2d 17 (CN 2009).

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Chapter 250: Defenses And Defense Theories: General Issues

250.6 Right To Defense Theory Instructions: Miscellaneous Issues

296.2.2.3 Standard Of Prejudice On Appeal: Failure To Instruct On A Defense Or DefenseTheory

300.6 Inadequate Instruction On Defense Or Defense Theory

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PG X(C)(3)  Failure to Instruct on Defense

PG X(C)(3.2)  Failure To Instruct On DefenseTheory: Standard Of Prejudice

Propriety Of Lesser Included Offense Instruction (Texas)

An instruction on a lesser-included offense is proper when: (1) the lesser-included offense is included within the proof necessary to establish the offense charged; and (2) there is some evidence in the record that would permit a jury to rationally find that if the defendant is guilty, he is guilty only of the lesser offense. Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim. App. 2005); Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993).

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Chapter 265 :Lesser Included Offenses: General Principles

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PG V(A)(7) Judge’s Duty To Instruct On Lesser Included Offense

LIO II - Duty to Instruct

Unlawful Sexual Intercourse: Examining Physician Exception (Wisconsin)

In State v. Lesik, 2010 WI App 12 (Wis. Ct. App. 2009) Lesik argued that his theory of defense – that any touching or penetration was for a proper medical purpose – was not adequately conveyed by the standard jury instruction. Both the jury instruction and the statute required proof of a sexual intent for sexual contact, but not for sexual intercourse. Lesik contended the absence of an intent element for sexual intercourse would criminalize medically appropriate conduct, including the slight, accidental vaginal intrusions he testified occurred while cleaning and medicating the alleged victim.

Therefore, the defense submitted the following instruction to the jury: The defendant is charged  with Sexual Intercourse with a Child. This allegation is premised on [the alleged victim’s] assertion that the tip of Mr. Lesik's finger penetrated her vagina. It is the defendant's theory in this case that he shared the responsibilities for treating [the alleged victim’s] incontinence problem. As such, any touching of her vagina or other private areas was strictly within the context of identifying or treating this condition. If as members of the jury you find that the defendant's conduct constituted "sexual intercourse" you must also consider whether this conduct was in the context of treating [the alleged victim’s] condition. If you so find, you must find the defendant not guilty.

The circuit court agreed a supplemental instruction was necessary for Lesik to present his defense, observing: "The way the form instruction and indeed the statute is written there is no defense, and there is no definitional division that would protect a physician properly examining a child's genital or anal opening, nor a parent properly caring for, or treating a child [for health problems]." The court therefore added the following sentence to the standard jury instruction: “‘Sexual intercourse’ does not include such an intrusion for a proper non-sexual purpose, such as a medical examination or appropriate child care or treatment.”

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Chapter 252: Defense Theories Based On Lack Of Criminal Intent

Judge’s Broad Discretion To Instruct (Wisconsin)

A trial court has broad discretion in deciding to give a particular jury instruction. State v. Hemphill, 2006 WI App 185, P8, 296 Wis. 2d 198, 722 N.W.2d 393. However, the instruction given must "fully and fairly inform the jury of the rules of law applicable to the case and … assist the jury in making a reasonable analysis of the evidence." [Citation omitted.]  State v. Coleman, 206 Wis. 2d 199, 212, 556 N.W.2d 701 (1996); see also State v. Lesik, 2010 WI App 12 (Wis. Ct. App. 2009).

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1.3.8 The Trial Judge Retains Broad Discretion To Modify Or Supplement PatternInstructions

3.2.2 Judge Has Ultimate Responsibility And DutyTo Instruct On Legal Principles Applicable To The Case

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PG XI(A)(2) The Trial Judge Has Broad Inherent Discretion Over Jury Instructions

PG XI(A)(3.1) A Court's Inherent Discretionary Powers And Duties Supersede Any RecommendationBy The Rules Of Court

Bruton Exception To Rule That Jurors Are Presumed To Follow The Instructions (California)

California courts presume the jury faithfully follows the court's limiting instructions. People v. Ervine, 47 Cal. 4th 745 (Cal. 2009); People v. Mendoza (2007) 42 Cal.4th 686, 699 [68 Cal. Rptr. 3d 274, 171 P.3d 2].  However, limiting instructions have been deemed insufficient to protect a defendant from a nontestifying codefendant's confession implicating the defendant at a joint trial. Bruton v. United States (1968) 391 U.S. 123 [20 L. Ed. 2d 476, 88 S. Ct. 1620]; see also People v. Lewis (2008) 43 Cal.4th 415, 454 [75 Cal. Rptr. 3d 588, 181 P.3d 947].

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Chapter 26: Limited Purpose Evidence

26.10.2   Inculpatory Statement Of One Codefendant In Multi-Defendant Trial (Bruton)

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PGX (E)(19)(1) Inability Of Limiting Instructions To Cure Error

F 2.70n9  Confession Of Co-Defendant: Inability Of Instruction To Limit Or Cure Prejudice

F 358 Inst 7 Inculpatory Statement Of One Defendant In Multi-Defendant Trial

Sample Instruction: Single Course Of Conduct (Ohio)

In order to find that two or more offenses constitute a single course of conduct, you must discern some connection, common scheme, or some pattern or psychological thread that ties the offenses together. Thus, for instance, the factual link might be one of time, location, murder weapon, or cause of death. It might involve the killing of victims who are close in age or who are related. It might involve a similar motivation on the killer's part for his crimes, a common getaway car, or perhaps a similar pattern of secondary crimes involving each victim.

Source: Given and approved in State v. Perez, 2009 Ohio 6179, P191-P194 (Ohio, 12/2/2009, No. 2005-2364).

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273.7.2 Continuing Course Of Conduct Exception To Jury Unanimity Requirement

Chapter 274  Propriety Of Instruction On MultipleCounts Or Offenses Based On A Single Act Or Course Of Conduct (Multiplicity)

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F 3500.1 Note 6 Juror Unanimity: Continuous Course-of-Conduct Crimes

F 3500.2 Inst 3 Special Unanimity Instruction For Continuous Course Of Conduct Offenses

Right To Defense Theory Instruction (Wisconsin)

A criminal defendant is entitled to a jury instruction on a theory of defense if: (1) the defense relates to a legal theory of defense, as opposed to an interpretation of evidence; (2) the request is timely made; (3) the defense is not adequately covered by other instructions; and (4) the defense is supported by sufficient evidence.  

State v. Coleman, 206 Wis. 2d 199, 212, 556 N.W.2d 701 (1996).

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Chapter 250: Defenses And Defense Theories: General Issues

250.6 Right To Defense Theory Instructions: Miscellaneous Issues

296.2.2.3 Standard Of Prejudice On Appeal: Failure To Instruct On A Defense Or DefenseTheory

300.6 Inadequate Instruction On Defense Or Defense Theory

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PG X(C)(3)  Failure to Instruct on Defense

PG X(C)(3.2)  Failure To Instruct On DefenseTheory: Standard Of Prejudice

Specific Juror Unanimity: Not Applicable To Different Theories (Kentucky)

In Kentucky,  a defendant in a criminal trial is entitled to a unanimous verdict. Hayes v. Commonwealth, 625 S.W.2d 583, 584 (Ky. 1981). However, an instruction allowing the jury to convict a defendant of the same offense under two different theories does not deprive the defendant of a unanimous verdict if either theory is supported by substantial evidence. Miller v. Commonwealth, 77 S.W.3d 566, 574 (Ky. 2002); Johnson v. Commonwealth, 12 S.W.3d 258, 265-66, 46 16 Ky. L. Summary 25 (Ky. 1999).   For example, in Stewart v. Commonwealth, [Notice: This opinion is UNPUBLISHED.] (Ky. Ct. App. 3/26/ 2010, No. 2008-CA-001213-MR) the instructions described two alternative theories by which a conviction could be sustained.  The jury could have believed the defendant acted alone or in concert with his wife and other relatives. Substantial evidence was presented on each of these theories. Thus, it was immaterial which theory the jurors chose to believe as the resulting conviction would be the same.

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Chapter 273: Jury Unanimity As To The Act Or Offense Committed (Duplicity)

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F 17.01 Juror Unanimity

Failure To Give Curative Instruction Rendered Doyle Error Reversible (Ohio)

The state’s use of a defendant's post-arrest, post-Miranda silence as a means of impeaching the defendant's testimony at trial violates the defendant's right to due process under the Fourteenth Amendment. Doyle v. Ohio (1976), 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91. See, also, Wainwright v. Greenfield (1986), 474 U.S. 284, 292, 106 S.Ct. 634, 88 L.Ed.2d 623 ("[I]t is fundamentally unfair to promise an arrested person that his silence will not be used against him and thereafter to breach that promise by using the silence to impeach his trial testimony."). Courts look upon any comment by a prosecutor on the post-arrest silence of a defendant with extreme disfavor because they raise an inference of guilt from the defendant's decision to remain silent. State v. Thompson (1987), 33 Ohio St.3d 1, 4, 514 N.E.2d 407;  State v. Rogers (1987), 32 Ohio St.3d 70, 512 N.E.2d 581.

In evaluating the prejudicial impact of a Doyle error the question is wether “the reference to a defendant's post-arrest silence or exercise of his Miranda rights is brief, isolated, and followed by a curative instruction by the trial court. . . .”  State v. Chaney, 2010 Ohio 1312, P16-P41 (Ohio Ct. App., Mahoning County 3/25/2010, No. 08 MA 171).  For example, Chaney reversed the defendant’s conviction because, inter alia, “the court gave no curative instructions regarding the impermissible references to Chaney's post-arrest silence during cross-examination, closing arguments, or during its instructions of law prior to deliberations.”

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3.2.3 Duty To Give Cautionary Or Limiting Instructions

25.14 Adoptive Admissions: (Pre-Trial Silence/Doyle)

272.4.10.2 Prosecutor Misconduct: Comment on Defendant's Exercise Of Right To Remain Silent Prior To Trial (Doyle)

272.5 Summation/Closing Argument: Prosecutor Misconduct -- Curative Instructions

The Shellow Instructions

Pre-Arrest Silence (Doyle)

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PG X(E)(19)(1) Inability Of Limiting Instructions To Cure Error

F 2.019a  Admonition To Counteract Prosecutor Misconduct

F 357 Note 3 Comment On Defendant's Post-Arrest, Pre-Miranda Silence As Doyle Error Even If Defendant Later Waives The Privilege

F 357 Note 4 Comment On Defendant's Post-Arrest Demeanor As Doyle Error

Denial Of Defense Theory Instruction Was Reversible Error (Indiana)

In Scott v. State, 924 N.E.2d 169, 175-76 (Ind. Ct. App. 2010, 3/25/2010 No. 79A05-0812-CR-746)  the defendant (Scott) was charged with pointing a loaded firearm at a law enforcement officer.  On appeal, Scott maintained that the judge erroneously refused his instruction informing the jury that it could find him guilty of a misdemeanor, instead of a felony, if the firearm he pointed at the officer was unloaded.  The refusal of this instruction was reversible error because “ the question of whether the gun was unloaded was at issue. . . .” Id. at 176-77.

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3.2.5 Sua Sponte Duty To Instruct On Defense Theory Supported By Substantial Evidence

Chapter 250: Defenses And Defense Theories: General Issues

250.6 Right To Defense Theory Instructions: Miscellaneous Issues

296.2.2.3 Standard Of Prejudice On Appeal: Failure To Instruct On A Defense Or DefenseTheory

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PG V(B)(1.4) Duty To Instruct On Defense Theory: The Law Of The Case Doctrine

PG VII(C)(14) Denial Of Instruction And Argument On Defense Theory As Violation Of Rights To Trial By Jury, Due Process, Counsel, Compulsory Process, And Confrontation

PG X(C)(3.2) Failure To Instruct On Defense Theory: Standard Of Prejudice

Failure To Instruct On Circumstantial Evidence Was Reversible Error (Georgia)

In Martinez v. State, 303 Ga. App. 71 (Ga. Ct. App. 2010, 3/24/2010, No. A09A1608) the defense contended that the judge erred in failing to give the following jury instruction on circumstantial evidence:   “To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused."

The reviewing court held that the judge committed reversible error because the evidence against the defendant was entirely circumstantial and the evidence of guilt was not “overwhelming.”

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25.12 Circumstantial Evidence

25.12.1 Circumstantial Evidence: Duty To Instruct

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Evidence Generally: Direct And Circumstantial Evidence

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F 2.01 Circumstantial Evidence

F 224 Circumstantial Evidence: Sufficiency Of Evidence

Drunk Driving: Involuntary Intoxication (Alaska)

In Solomon v. State, 227 P.3d 461, 463-469 (Alaska Ct. App. 2010, 3/26/2010, No. A-10364, No. 2256) the defendant unwittingly became intoxicated when he ingested approximately one quart of NyQuil(R) cold medicine without reading the label on the NyQuil bottles (which stated that NyQuil contained 10 percent alcohol), and without any knowledge that NyQuil contained alcohol or that NyQuil might otherwise be an intoxicant.

Based on this evidence, Solomon requested that the jurors be instructed that he should be acquitted of the DUI charge unless the State proved that he "knowingly" ingested an intoxicant – that is, unless he had actual knowledge that NyQuil was an intoxicant.  The defense also asked the trial judge to instruct the jury on the defense of "involuntary intoxication."

The reviewing court extensively reviewed the law of unwitting intoxication and concluded as follows:

“We are persuaded by these decisions, and by the approach advocated in the Model Penal Code, that Alaska law should recognize a defense of unwitting intoxication. However, this defense is available only to defendants who make a reasonable, non-negligent mistake concerning the intoxicating nature of the beverage or substance that they ingested. The defense is not available if the defendant knew or ought to have known that the beverage or substance was an intoxicant.”  Id. at 467.

Applying this rule to the facts the reviewing court concluded that Solomon was not entitled to argue a theory of unwitting intoxication to the jury, and the trial judge did not commit error when she refused Solomon's requests for jury instructions on this defense because no reasonable jury could conclude that Solomon's failure to read the label was reasonable and non-negligent.

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Chapter 89: Drunk Driving

256.5 Intoxication, Involuntary

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Driving Under The Influence (DUI): Generally

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F 4.22 Voluntary and Involuntary Intoxication

F 4.23 Involuntary Intoxication

F 12.60 Drunk Driving

Series 2100(A) Vehicle Offenses: DUI

Federal Defendant’s Right To Conviction On Lesser Included Offense If Jurors Are Unable To Agree On Greater Offense (9th Circuit)

The Federal Rules of Criminal Procedure [FRCP] allow a defendant to request a lesser-included offense instruction when appropriate. See Fed. R. Crim. P. 31(c). However, the order in which the jurors consider the greater and lesser offenses can significantly impact the defendant’s right to conviction on the lesser charge.  

For example, if the jurors are given an “acquittal first” instruction a jury which is deadlocked on the greater offense will never even consider the lesser offense.  As a result the jurors may be unfairly skewed in favor of conviction on the greater charges:  “If the jury is heavily for conviction on the greater offense, dissenters favoring the lesser may throw in the sponge rather than cause a mistrial that would leave the defendant with no conviction at all, although the jury might have reached sincere and unanimous agreement with respect to the lesser charge." United State v. Tsanas, 572 F.2d 340, 346 (2nd Cir. 1978)); see also United States v. Jackson, 726 F.2d 1466, 1469 (9th Cir. 1984). Accordingly, the Ninth Circuit allows the defendant to request an “unable to agree” instruction which allows the jurors to return a verdict on the lesser offense if they are unable to agree on the greater offense.  United States v. Jackson, supra.  If the judge erroneously reuses the defense request for an “unable to agree” instruction the government will be barred from retrying the defendant on the greater offense.  United States v. Carothers, 697 F. Supp. 2d 1160, 1161-1168 (C.D. Cal. 2010, 3/22/2010, Case No.: CR 08-01299-CJC.

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Chapter 265: Lesser Included Offenses: General Principles

275.4 Lesser Included Offenses: Deliberation And Verdict: The Acquittal First Rule

The Shellow Instructions

Lesser Included Offense/Other Offense: Judge’s Submission Of Alternative Offenses

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PG V(A)(7) Judge’s Duty To Instruct On Lesser Included Offense

PG IX(J)(3) Instruction On Lesser Included In Response To Jury Deadlock

LIO II - Duty to Instruct

F 8.75 Partial Verdict

Judge Erroneously Ruled On Requested Instructions Seconds Before Closing Argument (6th Circuit)

Federal Rule of Criminal Procedure [FRCP] 30(b) states: "The court must inform the parties before closing arguments how it intends to rule on the requested instructions. The rule is grounded in 'basic concepts of fairness,' allowing 'counsel to conform their arguments to the law as it will thereafter be presented by the judge to the jury.' [Citation.]" United States v. Rommy, 506 F.3d 108, 125 (2d Cir. 2007); see also United States v. Algee, 599 F.3d 506, 514-517 (6th Cir. Ohio 2010, 3/24/2010 No. 08-3196).

In Algee, the district court provided defense counsel a copy of the jury instructions just seconds before closing arguments began, without having had any discussion about the contents of the instructions. This clearly violated Rule 30(b) which is intended to allow counsel a “meaningful opportunity” to tailor their closing arguments to the court's pronouncement of the law governing the case.  Besides failing to provide defense counsel with a “meaningful opportunity” the judge also “placed defense counsel in the untenable position of either paying attention to the government's closing argument or familiarizing herself with the law of the case, as she could not reasonably be expected to do both.”  Ibid.

However, the Algee court concluded that the error “did not result in prejudice to Algee sufficient to warrant retrial."

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3.3.4 Duty To Advise Counsel Before Argument As To Which Instructions Will Be Given

3.3.5 Rule 30 Not Applicable to Instructions During Trial

4.1 The Basic Rule: Instruction Issues Should Be Raised At Trial

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PG I(D)  Importance Of Considering Instructions Before Trial

PG V(H) The Court Must Advise Counsel as to Instruction Before Argument

Propriety Of Specific Unanimity Instruction (6th Circuit)

“[A] jury instruction addressing specific or augmented unanimity is necessary if '1) a count is extremely complex, 2) there is a variance between the indictment and the proof at trial, or 3) there is a tangible risk of jury confusion.' [Citation.]" United States v. Krimsky, 230 F.3d 855, 860 (6th Cir. 2000); see also United States v. Algee, 599 F.3d 506, 514-515 (6th Cir. Ohio 2010, 3/24/2010 No. 08-3196.  Additionally, "a single count that presents more than one potential basis for conviction does not automatically require a unanimity instruction. . . . Rather, we have consistently recognized that the need arises when it is shown that there is a genuine risk that the jury is confused or that a conviction may occur as the result of different jurors concluding that a defendant committed different acts." Ibid. (internal citations and quotations omitted).

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Chapter 273: Jury Unanimity As To The Act Or Offense Committed (Duplicity)

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F 17.01 Juror Unanimity

“Judge’s Last Word Is Apt To Be The Decisive Word” (8th Circuit)

In Bollenbach v. United States, 326 U.S. 607, 612, 66 S. Ct. 402, 90 L. Ed. 350 (1946) (quoting Starr v. United States, 153 U.S. 614, 626, 14 S. Ct. 919, 38 L. Ed. 841 (1894) the United States Supreme Court made the following observation: "Particularly in a criminal trial, the judge's last word is apt to be the decisive word. If it is a specific ruling on a vital issue and misleading, the error is not cured by a prior unexceptionable and unilluminating abstract charge." Thus, there is reason to view erroneous supplemental instructions as especially prejudicial.

For example, in United States v. Wisecarver, 598 F.3d 982, 985-990 (8th Cir. S.D. 2010, 3/22/2010 No. 09-1954) the judge responded to a juror question during deliberations with an erroneous supplemental instruction that conflicted with the original instructions which were correct. The reviewing court concluded that the error was prejudicial after observing that “the fact that the district court initially properly instructed the jury is insufficient to cure the error, especially because this supplemental instruction was in response to a specific question posed by the jury.” Id. at 989. 

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Chapter 285: Supplemental Instructions

285.2 General Rules For Framing Supplemental Instructions

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PG IX Supplemental Instructions

Constructive Possession: Presence Alone Not Sufficient (6th Circuit)

"[C]onstructive possession exists when a person does not have actual possession but instead knowingly has the power and the intention at a given time to exercise dominion and control over an object, either directly or through others." United States v. Gardner, 488 F.3d 700, 713 (6th Cir. 2007) (citation and internal quotation marks omitted). "Presence alone near a gun . . . does not show the requisite knowledge, power, or intention to exercise control over the gun to prove constructive possession." United States v. Arnold, 486 F.3d 177, 183 (6th Cir. 2007) (en banc) (citation and internal quotation marks omitted). "Other incriminating evidence must supplement a defendant's proximity to a firearm in order to tip the scale in favor of constructive possession." United States v. Campbell, 549 F.3d 364, 374 (6th Cir. 2008). "Consequently, evidence of some other factor – including connection with a gun, proof of motive, . . . or a statement indicating involvement in an enterprise – coupled with proximity may suffice." Id. (citation and internal quotation marks omitted).

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6.2.18 Constructive Possession: Use Of Phrase “Indirect Possession” To Avoid JurorConfusion

Chapter 56: Possession

The Shellow Instructions

Possession

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F 1.24 Possession

F 3306 Possession Based Offenses—Defense Theories

Judge’s Duty To Tailor Standard “Boilerplate” Instruction To The Facts (6th Circuit)

The Sixth Circuit cautioned against the use of "boilerplate instructions" insufficiently tailored "to the facts and theories of the specific case  being tried." United States v. Wolak, 923 F.2d 1193, 1198 (6th Cir. 1991) [admonishing the district court for giving instructions on joint and constructive possession where only actual possession was at issue in the case]; see also Sixth Circuit Criminal Pattern Jury Instructions Use Note to § 2.10A ("Actual Possession") ["This instruction should be given if the government's only theory of possession is actual possession."]; see also United States v. Douglas, 371 Fed. Appx. 562, 565-567 (6th Cir. Ohio 2010, 3/25/2010 No. 08-4247).   Thus, it is “well established that an instruction should not be given if it lacks evidentiary support or is based upon mere suspicion or speculation." United States v. James, 819 F.2d 674, 675 (6th Cir. 1987) [reversing the defendant's conviction for possession of a firearm by a convicted felon where the government conceded that the defendant had actual possession of the firearm only, but the district court gave constructive possession instruction as well] [citations and internal quotation marks omitted].

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1.3 The Inherent Limitation Of Pattern Instructions

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PG V(A)(3)(a) Duty To Tailor Standard Form Instructions To Reflect The Facts And LegalTheories Presented At Trial

PG XI(B) Propriety Of Modified Or Tailored CALCRIM Instructions

Instruction On Refusal Of Prosecution Witnesses To Speak to Defense Counsel (2nd Circuit)

In United States v. Sabhnani, 599 F.3d 215, 237-241 (2d Cir. N.Y. 3/25/2010) several of the prosecution witnesses admitted that they had refused to speak to defense counsel prior to the trial.  Over defense objection the judge instructed the jurors as follows:

You have heard testimony from witnesses that attorney [Mahender's trial counsel] asked to speak to them prior to their testimony. I instruct you that [counsel] had a right to attempt to interview these witnesses before they took the stand. However, I also instruct you that these witnesses had a right to decline to speak to him. And no unfavorable inference should be drawn against them because of that declination.

On appeal the defense contended that absent this instruction, the jury could have reasoned that because these witnesses refused to speak to defense counsel, they must have been biased against the defense. Moreover, the defense also argued that the instruction may have cast trial counsel in a negative light for even asking witnesses the question whether they had refused to speak to the defense prior to trial.

The appellate court found no error in the instruction: “The instruction did nothing more than inform the jury of this right and instruct that a witness does not act wrongfully by exercising it. The defense was still free to suggest – and did, through cross-examination and in summation – that the refusal to meet with defense counsel could suggest a witness's greater sympathy for or affiliation with the other side of the case.” Sabhnani, 599 F.3d at 546.

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16.13.2 Cautionary Instruction Regarding Duty Of Counsel To Interview Witnesses InAdvance Of Trial

The Shellow Instructions

Witnesses Generally: Each Party Has The Right To Talk With Witnesses Called By The Other

Witnesses Generally: Duty Of Attorney To Interview Witnesses

Sample Instruction: Comparison Of Constructive Possession With Safety Deposit Box (3rd Circuit)

If a person has the ability to exercise substantial control over an object that the person does not have in his or her physical custody, then the person is in possession of that item. An example of this from every day experience would be a person's possession of items which are kept in a safety deposit box in the bank. Although the person does not have physical custody of these items, the person exercises substantial control over them, so he or she has what is known as constructive possession of them.

[Source: Adapted from United States v. Moore, (3d Cir. Pa. 3/25/2010, No. 09-2526). NOTICE: This opinion is UNPUBLISHED.]

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6.2.18 Constructive Possession: Use Of Phrase “Indirect Possession” To Avoid Juror Confusion

Chapter 56: Possession

The Shellow Instructions

Possession

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F 1.24 Possession

F 3306 Possession Based Offenses—Defense Theories

Aiding And Abetting Liability Based On Failure To Act (2nd Circuit)

It is a long-established principle that criminal law generally regulates action, rather than omission, and that "[f]or criminal liability to be based upon a failure to act it must first be found that there is a duty to act – a legal duty and not simply a moral duty." 1 Wayne R. LaFave, Substantive Criminal Law § 6.2 (2d ed. 2008). Such a legal duty to act can arise from a statute specifically creating the duty – the duty to file one's tax returns, for instance, see 26 U.S.C. § 7203 – or by extrapolation from a different statute, the common law, or contract. 1 LaFave, Substantive Criminal Law § 6.2. This general principle, that omissions may serve as the basis of criminal liability only if there is an affirmative duty to act, has to be held equally applicable when the crime charged is aiding and abetting. See United States v. Labat, 905 F.2d 18, 23 (2d Cir. 1990) ["To convict a defendant on a theory of aiding and abetting, the government must prove that the underlying crime was committed by a person other than the defendant and that the defendant acted, or failed to act in a way that the law required him to act, with the specific purpose of bringing about the underlying crime"].

However a common law duty to act may exist if it is sufficiently established in legal tradition and action.  (See United States v. Sabhnani, 599 F.3d 215, 237-241 (2d Cir. N.Y. 3/25/2010.) When such a theory is alleged the judge must instruct on the nature of this duty and the factors the jury should consider in determining whether the duty was discharged. See Jones v. United States, 308 F.2d 307, 310-11, 113 U.S. App. D.C. 352 (D.C. Cir. 1962) [reversing on plain error review where a jury was not instructed as to the nature of the common law duty that was the basis for omissions liability].

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44.6 Physical Impossibility As Defense To Charge Based On Omission Of Duty Or Failure To Act

Chapter 64: Accomplice Liability (Aiding And Abetting, Accessory Before The Fact, Etc.)

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Aiding And Abetting

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F 3.01 Aiding and Abetting

F 3.02 Aider and Abettor Liability

F 3.00 n4  Aiding And Abetting:  No Affirmative Duty To Act.

Calcrim 400 Aiding And Abetting, Inchoate, And Accessorial Crimes

Texas Court Holds That Voluntary Intoxication Instruction Should Not Have Been Included In Punishment Instructions

In Kresse v. State, (Tex. App. Fort Worth 4/22/2010, [Notice: This opinion is UNPUBLISHED], No. 2-09-271-CR) the defendant pled guilty to a charge of murder and requested that a jury decide what punishment should be imposed.  The testimony during trial was replete with evidence of the history of his intoxication, its effect on his actions, and his intoxication at the time of the murder, and that the State emphasized his inebriation in both its opening statement and its closing argument.

Over defense objection, the trial court sua sponte instructed the jury that "[v]oluntary intoxication does not constitute a defense to the commission of a crime," and it included a definition of intoxication in its punishment charge to the jury. Immediately following the voluntary intoxication instruction and the definition of "intoxication," the jury charge read: "It now becomes your duty under the law to determine the punishment which should be assessed against this defendant."

The state conceded that giving the voluntary intoxication instruction was error but argued that the instruction was superfluous because  its clear language applied to a defense rather than a mitigating factor in punishment.  Moreover, the state relied on that fact that neither party referred to the voluntary intoxication instruction in their arguments to the jury.

Nevertheless, the reviewing court reversed the 50 year sentence imposed by the jury because the erroneous instruction “drew attention to one area of evidence and enhanced the State's argument for punishment.” The court noted that “we are required to reverse if we determine the presence of ‘any harm, regardless of degree, which results from a preserved charging error. . . .’" Kresse v. State, supra [citing Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986) ("Cases involving preserved charging error will be affirmed only if no harm has occurred.").

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256.6 Intoxication, Voluntary

Forecite California™

F 4.22 Voluntary and Involuntary Intoxication

F 3426 Voluntary Intoxication

Eyewitness: Need For “Enhanced” Jury Instructions (New Jersey)

State v. Henderson (NJ 2001) 208 N.J. 208, 27 A3d 872 concluded that when eyewitness identification testimony is admitted at trial, enhanced instructions should be given to juries – both after trial and also at the time of the witness’s testimony, if appropriate – about the various factors that may affect the reliability of an identification in the particular case. 

The court did not propose specific instructions in its opinion, but invited the parties and amici to submit proposed instructions to the state's model jury instruction committee.

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Chapter 31: Identification: Eyewitness (Mistaken Identity)

31.1 Eyewitness Identification Strategy: Early Preparation And Development Of"Total-Case" Strategy

The Shellow Instructions

Evidence: Eyewitness Identification

Forecite California™

F 2.92 Eyewitness Factors

F 315.1.1 Eyewitness Identification: General

F 315 Note 21 Eyewitness: Need For “Enhanced” Jury Instructions

Factors Affecting Reliability Of Eyewitness Identification (New Jersey)

After an exhaustive evaluation of the latest scientific studies and literature State v. Henderson (NJ 2001) 208 N.J. 208, 27 A3d 872 concluded that the factors which affect the reliability of eyewitness identification include the following:

System Variables: whether the procedure was performed blind or double-blind, or with some other safeguard to ensure that the administrator had no knowledge of where the suspect appeared in the lineup; whether neutral pre-identification instructions were given to the witness; how well the lineup was constructed (presenting an adequate number of filler photos or individuals, choosing photos/participants that fit the witness's description, sequential administration of photos); whether the witness received any feedback about the suspect before, during or after the identification; contemporaneous recording of the witness's reactions when viewing the lineup ; whether the witness's confidence in the identification was reported immediately and before the possibility of any confirmatory feedback; avoiding confirmatory feedback after an identification; and avoiding multiple viewings of the same suspect in successive lineups; whether the witness had spoken with anyone outside of law enforcement about the identification, and what was discussed; and whether the witness initially chose someone other than the suspect in the lineup. [If a one-person showup is at issue, the court should determine whether it was performed more than two hours after the event, since research has shown that the accuracy of identifications drops off significantly after that time.]

Estimator Variables: whether the event involved a high level of stress; whether a visible weapon was used during a crime of short duration; how much time the witness had to observe the event; the distance and lighting conditions; relevant characteristics of the witness that would affect his or her ability to see or recall the event  (including age and intoxication); relevant characteristics of the perpetrator that might impede an accurate identification (e.g., hat, sunglasses, facial hair); memory decay; cross-racial identification; exposure to suggestion by private actors such as other witnesses; and the time between the event and the lineup; and the speed with which the witness makes an identification from a lineup.

The court evaluated the effect of each of those factors on the accuracy of identifications, citing literature and expert testimony from the hearing.  The court also evaluated evidence from studies measuring jurors' understanding of the science of memory and the psychology of eyewitness identification. The studies concluded that jurors often hold beliefs that run counter to the reality reflected in the research.

For subscription based briefing and sample instructions on this and related issues see:

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Chapter 31: Identification: Eyewitness (Mistaken Identity)

31.1 Eyewitness Identification Strategy: Early Preparation And Development Of"Total-Case" Strategy

The Shellow Instructions

Evidence: Eyewitness Identification

Forecite California™

F 2.92 Eyewitness Factors

F 315.1.1 Eyewitness Identification: General

F 315 Note 20 Factors Affecting Reliability Of Eyewitness Identification

The Manson v. Brathwaite (1977) 432 US 98 Test Needs to Be Revised (New Jersey)

On the strength of the evidence before it, State v. Henderson (N.J. 2011) 208 N.J. 208, 27 A3d 872  determined that the factors supporting admissibility of an identification articulated in Manson v. Brathwaite (1977) 432 US 98 [53 LEd2d 140; 97 SCt 2243], are no longer valid in light of subsequent research findings. (Id. at 286.) Those factors, as stated in Manson, "include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation." (Id., 432 U.S. at 114.)   “But three of those factors – the opportunity to view the crime, the witness' degree of attention, and the level of certainty at the time of the identification – rely on self-reporting by eyewitnesses; and research has shown that those reports can be skewed by the suggestive procedures themselves and thus may not be reliable.  Self-reporting by eyewitnesses is an essential part of any investigation, but when reports are tainted by a suggestive process, they become poor measures in a balancing test designed to bar unreliable evidence.” (State v. Henderson, 208 N.J. at  286.)

For subscription based briefing and sample instructions on this and related issues see:

Forecite National™

Chapter 31: Identification: Eyewitness (Mistaken Identity)

31.1 Eyewitness Identification Strategy: Early Preparation And Development Of"Total-Case" Strategy

The Shellow Instructions

 Evidence: Eyewitness Identification

Forecite California™

F 2.92 Eyewitness Factors

F 315.1.1 Eyewitness Identification: General

F 315 Note 19  The Manson v. Brathwaite(1977) 432 US 98 Test Needs to Be Revised

New Jersey Supreme Court Issues Major Decision On Eyewitness Identifications

State v. Henderson (N.J. 2011) 208 N.J. 208, 218, 27 A3d 872 found “convincing proof” that the current test for evaluating the trustworthiness of eyewitness identifications unreliable. “Study after study revealed a troubling lack of reliability in eyewitness identifications. From social science research to the review of actual police lineups, from laboratory experiments to DNA exonerations, the record proves that the possibility of mistaken identification is real. Indeed, it is now widely known that eyewitness misidentification is the leading cause of wrongful convictions across the country.” (Ibid.)

Henderson challenged the eye witness identification on the ground that the officers unduly influenced the choice of Henderson's photo. The trial judge ruled against Henderson but the intermediate appellate court reversed the conviction based on the suggestive lineup procedure which violated the attorney general’s eye witness guidelines which required that the officer conducting the photo lineup not know which of the photos is the suspect.  The New Jersey Supreme Court granted certification and granted applications by the Innocence Project and the Association of Criminal Defense Lawyers of New Jersey to appear as amici curiae.  The amici argued, among other things, that the state's court-created procedures for determining the admissibility of eyewitness identification testimony, which were based on the test articulated by the United States Supreme Court in Manson v. Brathwaite (1977) 432 US 98 [53 LEd2d 140; 97 SCt 2243], were outdated and problematic in light of more recent scientific research.  In response, the state Supreme Court appointed a Special Master to evaluate the scientific and other evidence about eyewitness identification.  The Special Master held a ten-day hearing, at which seven experts testified and 200 scientific articles were admitted into evidence, and issued an extensive report.  The Innocence Project called witnesses in addition to those called by the parties.

In an opinion that is a compendium of the scientific research about eyewitness identification and the role of various factors that contribute to the misidentification of suspects the Supreme Court concluded that "the science abundantly demonstrates the many vagaries of memory encoding, storage, and retrieval; the malleability of memory; the contaminating effects of extrinsic information; the influence of police interview techniques and identification procedures; and the many other factors that bear on the reliability of eyewitness identifications." (State v. Henderson, 208 N.J. at 283 [internal quotations marks omitted].)

In sum, the opinion is a comprehensive and valuable resource for researching sources of error in eyewitness identifications. 

For subscription based briefing and sample instructions on this and related issues see:

Forecite National™

Chapter 31: Identification: Eyewitness (Mistaken Identity)

31.1 Eyewitness Identification Strategy: Early Preparation And Development Of"Total-Case" Strategy

The Shellow Instructions

Evidence: Eyewitness Identification

Forecite California™

F 2.92 Eyewitness Factors

F 315.1.1 Eyewitness Identification: General

F 315 Note 18 New Jersey Supreme Court Issues Major Decision On Eyewitness Identifications