Omission Of An Element Of The Charge: Neder Criticized; Not Followed By New Hampshire Supreme Court (New Hampshire)

In Neder v. United States, 527 U.S. 1, 9, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) the U.S. Supreme Court held that "an instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence." Similarly, Washington v. Recuenco 548 U.S. 212, 222, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006) relied on Neder to hold that "[f]ailure to submit a sentencing factor to the jury, like failure to submit an element to the jury, is not structural error."

State v. Kousounadis [excerpt after the jump] criticizes the Neder rule and holds under the state constitution that omission of an element of the charge is reversible per se.

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.

Standard Of Review: Erroneous Jury Instruction Claim On Habeas Corpus

There is an extremely high standard of review for jury instruction error in federal habeas petitions from state court judgments. Thus, even if a jury instruction issue is rejected on federal habeas the issue may still be raised in other state court trials. (See e.g., Smith v. Ryan [excerpt after the jump].)

Impeachment: Limiting Instruction

Limiting instructions may be particularly appropriate when evidence has been admitted solely for impeachment purposes. (See e.g. United States v. Simels and Hill v. Stolc [excerpts after the jump].)

Lesser Included Offenses: Applicability Of Beck v. Alabama To Non-Capital Cases

There is a seemingly illogical constitutional dichotomy concerning the failure to instruct on lesser included offenses. In Beck v. Alabama (a capital case) the U.S. Supreme Court recognized that giving the jurors an all-or-nothing choice may undermine the fairness and reliability of the trial. However, even though the Beck rationale should apply in both death penalty and non-death penalty cases, it has consistently been limited to death cases. (See e.g. Sabillo v. Sec'y, Dept' of Corr. (UNPUBLISHED) [excerpt after the jump].) (But see also Conde v. Henry (9th Cir. 1999) 198 F3d 734 [Failure to give a requested instruction on a lesser offense implicates the federal constitution if the refusal prevents the defendant from presenting his or her theory of the case].

Multiple Conspiracy Instruction Required Only If Defendant Was Involved In A Separate And Independent Conspiracy

Instructional issues abound when the evidence suggests the existence of multiple conspiracies. United States v. Wilkins (UNPUBLISHED) [excerpt after the jump] illustrates how the Fourth Circuit has tried to limit these issues by very specifically defining what constitutes multiple conspiracies.

For briefing and sample instructions on multiple conspiracy issues see Forecite National™ Vol. 7, Section 83.38.

Uncharged Offenses -- Limiting Instruction (FRE 404(b)) -- Defendant May Request At "The Appropriate Time"

Except in extremely unusual circumstances it is the defendant's responsibility to request any limiting instructions the defense desires. In the absence of such a request it will be assumed that the defense failed to request the instruction for strategic reasons. (See United States v. Lindsey [excerpt after the jump].)

Sample Instruction: Expert Opinion That Child-Witness's Allegations of Abuse Were "Substantiated"

"You will recall this morning that Mr. Carrothers from the Department of Job and Family Services testified and he testified concerning findings that they made in their agency, substantiated, unsubstantiated or indicating allegations of abuse. I'm instructing you that the findings they make at the agency are completely separate from the findings that you'll be asked to make in this case. Those are administrative matters.

And I will be giving you instructions-as I've said before I will be giving you instructions as to exactly what matters you have to find, you have to address. So I want you to be aware of that and I'm giving you that to assist you in keeping your mind open and understanding the full scope of what you'll be asked to do."

(Source: Jordan v. Warden, Leb. Corr. Inst., (S.D. Ohio, NO. 2:08-cv-0632, Dec. 2, 2009) [the above instruction “...ameliorated any hint that "substantiating" the allegations was evidence that they were true.”].)

Presumption That Jurors Follow Instructions (6th Circuit)

United States v. Martinez, slip opn. p. 24 (6th Cir. Ohio, Nos. 06-3882/06-4206, 2009)
We must presume that the jury followed the instructions unless we have evidence to the contrary. See Washington v. Hofbauer, 228 F.3d 689, 706 (6th Cir. 2000).

APPELLATE PRACTICE NOTE: Appellate courts often use this virtually universal rule when affirming the jurors’ verdict. However, this rule may also be used to argue in favor of reversal when the judge has given the jurors an erroneous instruction since it must be presumed that the jurors followed the erroneous instruction. For example, in Bollenbach v. U.S. (1946) 326 US 607, 613 [66 SCt 402; 90 LEd2d 350], the court rejected the government's suggestion "that the lay jury will know enough to disregard the judge's bad law if in fact he misguides them."

This presumption also militates against reliance on the argument of counsel to cure an instructional error since it should be presumed that the jurors followed the erroneous instruction rather than the correct argument of counsel. See Forecite National™ Vol. 14, Section 297.5.

Sample Instruction: Proximate Cause (Federal Health Care Fraud)

Proximate or direct cause exists where the acts of the Defendant in committing healthcare fraud in a natural and continuous sequence directly produces the deaths and without which they would not have occurred. The [defendant] is not responsible for the deaths of [the victim(s)] if [the defendant’s] alleged was a remote cause of their deaths, i.e., if "the result could not have been reasonably foreseen or anticipated as being the likely cause of the deaths. Proximate cause does not exist when another's act, which could not have been reasonably foreseen and is fully independent of [the defendant’s ], intervenes and completely breaks the effect of [defendant's] conduct. 

(Source: United States v. Martinez, slip opn. p. 20 (6th Cir. Ohio, Nos. 06-3882/06-4206, 2009).)

Video Demonstration: Cautionary Instructions Appropriate (6th Circuit)

Video demonstrations may confuse jurors as to what is and what is not evidence. Therefore, cautionary instructions may be appropriate. (See e.g., United States v. Martinez [excerpt after the jump].)

For briefing and sample instructions regarding video recordings see Forecite National™ Vol. 4, Section 25.9.6.

Sample Instruction: Withdrawal From Conspiracy

To prove withdrawal a defendant must demonstrate "that he has taken affirmative steps to defeat the objectives of the conspiracy" and "either that he has made a reasonable effort to communicate these acts to his co-conspirators or disclosed the scheme to law enforcement authorities."

(Source: United States v. Young, 39 F.3d 1561, 1571 (11th Cir. 1994))

Evidence Requested For Defense Theory Instruction: Defendant's Burden Is "Extremely Low"

Generally the playing field should be slanted in favor of giving a party’s “theory of the case” instruction. See Forecite National™ Vol. 1, Section 3.3.1.

In the case of a defense theory instruction this relaxed standard is especially applicable. As articulated by the 11th Circuit in United States v. Ulloa, slip opn. p. 10 (11th Cir. Fla., No. 08-14114. Dec. 2, 2009) [NOTICE: This opinion is UNPUBLISHED.]:

"The burden of presenting evidence sufficient to support a jury instruction on a theory of  defense is extremely low." United States v. Arias, 431 F.3d 1327, 1340 (11th Cir. 2005) (internal quotation marks omitted).

Argument To Jury As Substitute For Judge's Instruction

Judges commonly respond to instruction requests by stating that the content of the instruction is a “matter for argument.” This opens the door for counsel to use the argument strategy discussed in this Forecite Blog™ post.

The potential viability of such a strategy is illustrated by the case excerpted below in which both the judge and the prosecution urged defense counsel to use argument rather than a jury instruction to explain the law to the jury.

Sample Instruction: False Personation Of An Officer (18 USC 912)

The Defendant is charged in the Indictment with a violation of 18 U.S.C. § 912.

The law makes it a crime to pretend to be an officer or employee acting under the authority of the United States or any department, agency, or officer thereof.

To find the Defendant guilty of this crime you must be convinced that the government has proved each of the following beyond a reasonable doubt:

First: the Defendant falsely assumed and pretended to be an officer or employee acting under the authority of the United States;

Second: the Defendant knew that such assumption or pretension was false;

Third: the Defendant committed any act in the assumed role.

(Source: United States v. Neidlinger, slip opn. p. 12 (10th Cir. Wyo., No. 09-8017, Dec. 2, 2009) [holding that the above instruction correctly defined the elements of 18 USC 912].)

Closing Argument Strategy When The Judge Has Refused An Instructional Request Which Is A Correct Statement Of The Law

It is not uncommon for judges to refuse specific instructional requests – which are admittedly correct statements of the law -- because the judge believes the matter is either included in the general instructions and/or is a "matter for argument to the jury." In such a situation the following instruction/argument strategy -- which has been successfully used by California trial attorneys -- may be effective.

I. Educate the Judge and Jurors Before and During Trial

In anticipation that the judge may refuse an important instruction request it may be effective to educate the judge and jurors regarding the legal principle prior to and during trial. For example, education may take place  during voir dire. A juror’s qualification to serve depends on his or her ability to follow the judge’s instructions.

Missing Witness Instruction: Witness Equally Available - What Constitutes "Control" Of The Witness

The question of how the jury should consider the failure of either party to call a witness who would logically be expected to testify is a thorny one. (See Forecite National™, Vol. 4, Chapter 36.) A missing witness instruction or an inference made by the jury without instruction may be prejudicial to the defense by shifting or diluting the prosecution’s burden of proof. (See Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTION 39 [Inference From Fact That Witness Not Called] commentary (1988); see also WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 345 [Missing Witness] (University of Wisconsin Law School, 1999) comment).)

In United States v. Santos [excerpt after the jump] a potential prosecution witness was not called but the judge granted the prosecution’s request for an “equally available” instruction. However, by telling the jury not to draw an adverse inference when the witness is “equally available” the instruction implied that an adverse inference could be drawn as to witnesses who were not “equally available.” Thus such an instruction may implicate the defendant’s constitutional rights by shifting or diluting the prosecution’s burden of proof. Santos does not address this potential problem with the “equally available” instruction.

Standard Of Review: Consideration Of "Charge As A Whole" (5th Circuit, 10th Circuit)

The "change-as-a-whole" principle is employed by reviewing courts in most jurisdictions. It is often recited in a "boiler plate" manner when the reviewing court wants to downplay the prejudicial impact of an alleged instructional error. (See e.g., United States v. Santos and United States v. Neidlinger [excerpts after the jump].)

Trial Judge Has "Substantial Latitude" In Describing The Law To The Jurors

The "wide latitude" given trial judges by reviewing courts affirms that the ultimate power over the jury instructions resides with the judge, not the pattern instructions. (See e.g., United States v. Santos [excerpt after the jump].)

Sample Instruction: Serious Bodily Injury (18 USC 1365)

The district court instructed the jury that 18 U.S.C. § 1365 defines "serious bodily injury" as bodily injury involving (a) a substantial risk of death; (b) extreme physical pain; (c) protracted and obvious disfigurement; or (d) protracted loss or impairment of the function of a bodily member, organ, or mental faculty.

(Source: United States v. Santos, slp. opn. pp. 5-6 (5th Cir. La.,No. 08-31225, Dec. 2, 2009))

Unpublished Opinion Caveat

The rules regarding the use and citation to unpublished opinions vary depending on the jurisdiction. The rules of the applicable jurisdiction should be consulted before citing to an unpublished opinion or relying on it as precedent.