Is An Omission Or Incomplete Instruction Less Prejudicial Than An Instruction That Misstates The Law ?

Golphin v. Thaler, (W.D. Tex., EP-08-CV-236-KC, Dec. 2, 2009) concluded that “An omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law." However, this oft repeated assertion should not be taken at face value because an instruction which omits an important matter may itself become a “misstatement of the law.” For example, there are few instructional errors which are more serious than the omission of a material, contested element of the charge. See Apprendi v. New Jersey, (530 U.S. 466). This is so because the instruction – by omitting an element of the charge – effectively misstates the law and allows the jurors to convict the defendant without holding the prosecution to its constitutional burden of proving every element of the charged offense. (Ibid.) In fact the New Hampshire Supreme Court recently went beyond Neder and held that the removal of an element from the jurors’ consideration is reversible error under the State constitution. See this Forecite Blog™ post. This example alone is sufficient to discredit Golphin’s purported distinction between omissions and misstatements.