Alaska Court Explains Defects In Instruction On Maintaining A Building Or Structure For Drug Distribution (Alaska)

In ruling on the defendant’s habeas petition Maness v. State [excerpt after the jump] reiterated the defects in the instruction on the elements of the charge.  However, habeas relief was denied because Maness failed to satisfy the prejudice prong of his ineffective counsel claim.

Leaving The Scene Of The Crime Is Not Flight (Virginia)

Simply leaving the scene of the crime, without more, does not demonstrate a consciousness of guilt. Thus, it is improper to include such “overly broad” language in any instruction on flight.

For example, Turman v. Commonwealth, 276 Va. 558, 667 S.E.2d 767 (2008) concluded that the Model Jury Instruction on flight was defective and therefore the trial court committed reversible error in granting the instruction. We held in Turman that the phrase "if a person leaves the place where a crime was committed" is "overly broad" and results in an incorrect statement of the law. (276 Va. at 563, 566, 667 S.E.2d at 771.)

Voluntariness Instruction (Texas)

A jury instruction on voluntariness may be part of the defense strategy when the prosecution relies on the defendant’s admission or confession.  (See e.g., Oursbourn v. State, 259 S.W.3d 159, 175 (Tex. Crim. App. 2008) ("a party may offer evidence before the jury suggesting that the confession was not in fact voluntary . . . if such evidence is offered before the jury, the trial judge shall give the jury a voluntariness instruction"); Vasquez v. State, 225 S.W.3d 541, 545 (Tex. Crim. App. 2007) ("the defense is still required to introduce evidence at trial from which a reasonable jury could conclude that the statement was not voluntary"); art. 38.22, § 6 ("evidence pertaining to such matter may be submitted to the jury and it shall be instructed . . . .").

For briefing and sample instructions on voluntariness see the following subscription-based resources:

Forecite National™
Chapter 28 - Out Of Court Statements By Defendant
The Shellow Collection
Defendant's Statements
Forecite California™
F 2.70 - Admissions/Confession
F 358 - Evidence of Defendant's Statements

Sample Instruction: Jurors May Accept Part And Reject Part Of A Witnesses Testimony (New York)

If you find that any witness has intentionally testified falsely as to any material fact, you may disregard that witness's entire testimony. Or, you may disregard so much of it as you find was untruthful, and accept so much of it as you find to have been truthfully and accurately given.

Source: People v. Bellamy, 2010 NY Slip Op 50038U, 12-13 (N.Y. Sup. Ct., 2194/94, Jan. 14, 2010).

Judge’s Duty Regarding Defense Instructions (New Jersey)

State v. Fowlkes [excerpt after the jump] provides a good example of why it is important to think beyond the standard pattern or model instructions.  By delivering only the “model jury charge” on “unlawful force” the judge omitted legal  principles relevant to the defendant’s theory of self defense.

Use Of “Drug Profile” Evidence: Role Of Jury Instructions (Michigan)

In Michigan drug profile evidence is admissible to aid the jury in intelligently understanding the evidence in controlled substance cases and "to explain the significance of items seized and the circumstances obtaining [sic] during the investigation of criminal activity." People v Murray, 234 Mich App 46, 53; 593 NW2d 690 (1999). The prosecution may not use drug profile evidence to argue that the defendant must be guilty because he fits the profile, but may "rely[] on the facts of the case to prove guilt when understood in the context of the profile . . . ." Id. at 59.

Murray listed four factors to apply when considering whether to admit drug profile evidence including the requirement of an appropriate limiting instruction.

First, the attorneys and the trial court must maintain the distinction between permissibly using drug profile evidence as background or modus operandi evidence, and impermissibly using it as substantive evidence of guilt. Id. at 56-57. Second, the prosecutor must offer non-profile evidence to prove the defendant's guilt. Id. at 57.The prosecutor must introduce and argue some additional evidence from the case that the jury can use to draw an inference of criminality; multiple pieces of a profile do not add up to guilt without something more. In other words, the pieces of the drug profile by themselves should not be used to establish the link between innocuous evidence and guilt. (Ibid.) Third, the trial court must make clear to the jury what is and is not an appropriate use of the drug profile evidence by, for example, instructing the jury that drug profile evidence is properly used only as background or modus operandi evidence and should not be used as substantive evidence of guilt. Id. Fourth, the expert witness should not be permitted to express an opinion that, on the basis of the profile, the defendant is guilty. Id. [emphasis added]

Sample Instruction: Jurors Should Not Take Notes While The Judge Reads The Instructions

I don't want you writing anything down at this point. We're going to give you the substantive instructions that the Court's about ready to give you. I want your undivided attention because if you're writing you're not going to be able to comprehend exactly what the Court's saying.

Source: Given in People v. King, slip opn. p. 11 (Mich. Ct. App., No. 282533 Jan. 12, 2010)  [NOTICE: This opinion is UNPUBLISHED.]

Sample Instruction: Any Juror Not Understanding An Instruction Should Raise Their Hand (Michigan)

If at any time you don't understand what the Court is saying, please do not be embarrassed. Just raise your hand and the Court will give you the instruction again. 

Source: Given in People v. King, slip opn. p. 11 (Mich. Ct. App., No. 282533 Jan. 12, 2010)  [NOTICE: This opinion is UNPUBLISHED.]

Sample Instruction: Disregard Opinion Expressed “Or Even Hinted At” By The Judge (Massachusetts)

You should not consider anything that I have said or done during the course of the trial in ruling on motions or objections or in comments to the attorneys or in questions to witnesses or in setting forth the law in these instructions as any indication of my opinion as to how you should decide the defendant's guilt or innocence. If you believe that I have expressed or even hinted at any opinion about the facts in this case, please disregard it. I have no opinion about the facts or what your verdict ought to be. That again is solely and exclusively your duty and your responsibility. In short, you must confine your deliberations to the evidence and nothing but the evidence.

Source: Given in Commonwealth v. Abernathy, 2010 Mass. App. Unpub. LEXIS 30, 6-7 (Mass. App. Ct., 08-P-1910 Jan. 11, 2010) [NOTICE: This opinion is UNPUBLISHED.]

Sample Instruction: Victim Witness Not Entitled To Greater Credibility (Massachusetts)

The fact that a complaining witness has come into court and testified before you does not entitle that witness to any greater credibility.  The mere fact that somebody has come into court to testify does not mean that their testimony is entitled to be believed by you.

Source: Adapted from instruction given in Commonwealth v. Beaudry, 445 Mass. 577, 586-587839 N.E.2d 298 (2005).

Seventh Circuit Rejects Prosecution’s Definition Of Causation (7th Circuit)

In United States v. Hatfield [excerpt after the jump] causation was a key issue since the prosecution alleged that (per 18 U.S.C. 841(a)(1), (b)(1), 846) four victims died and one suffered serious bodily injury “as a result” of ingesting a controlled substance distributed by the defendant.  Over defense objection the court gave a prosecution requested instruction which defined “a result of” in terms of whether the factor which was not a “primary cause” but which “played a part” in the death/serious bodily injury.

The Seventh Circuit reversed holding that the prosecution’s definition was not sufficiently clear and suggesting that no definition of causation was necessary.  The opinion’s implication that crucial instructional terms – such as reasonable doubt – simply cannot be adequately defined is worrisome since whenever a term is not defined the jurors will have to guess at its meaning.  (See this Forecite Blog™ post.)  Moreover, the court’s premise that attempting to define instructional terms is a fool’s errand conflicts with the Seventh Circuit’s Pattern Instructions which include definition of instructional terms such as "direct" and "circumstantial" evidence (Instruction 1.05), “knowingly” (Instruction 4.06), and “attempt” (Instruction 4.07).

Sample Instruction: Guilty Plea Of Accomplice Must Not Be Considered “In Any Way” (6th Circuit)

The fact that some other witnesses have pleaded guilty to a crime is no evidence that the defendants are guilty. You cannot consider this against the defendants in any way.  Neither defendant objected to the timing or manner of the district court's instructions at trial.

Source: United States v. Benson, slip opn. p. 4 (6th Cir. Mich., Nos. 08-1131/1358, 2010).

Sample Instruction: Accomplice Testimony Should Be Viewed With “More Caution” Than Other Testimony (6th Circuit)

You have heard that several witnesses were involved in the same crime alleged that the defendants are charged with committing. You should consider such a witness's testimony with more caution than the testimony of other witnesses, not convicting the defendants based on the unsupported testimony of such a witness standing alone unless you believe his testimony beyond a reasonable doubt.

Source: United States v. Benson, slip opn. p. 4 (6th Cir. Mich., Nos. 08-1131/1358, 2010).

Common Law Right To Self Defense Applies To Prisoner Charged With Assault Of Guard (West Virginia)

U.S. v. Gore [excerpt after jump] concluded that the common-law right to self defense may apply to a prisoner but only when the prisoner (1) reasonably fears that immediate serious bodily injury or death would be inflicted on him if he did not defend himself; and (2) had no reasonable opportunity to avoid the threatened injury.

Sample Instruction: Doyle Error [Comment On Defendant’s Exercise Of The Fifth Amendment Right To Remain Silent] (10th Circuit)

Ladies and gentlemen of the jury, before we resume with testimony, let me instruct you as follows. The Fifth Amendment of the United States Constitution endows each and every one of us with the right to remain silent in the face of  questioning or interrogation by a law enforcement officer at a time in which we are arrested or in custody.

It's a right that every one of us has under the Fifth Amendment of the United States Constitution. It violates that constitutional right and it would be inappropriate, it would be illegal, and it would be unconstitutional for you as a jury to give any evidentiary weight, any consideration, to anything that you've heard about someone invoking this very important constitutional right.
 
So don't give it any evidentiary weight; don't consider it, discuss it, think about it; don't draw any inferences from it. Don't think about it even in terms of inference or implication. Because it would be unconstitutional and illegal for you to do that.

It would mean that that very important right that we all enjoy as United States citizens would be utterly meaningless if the fact that we invoked that right could then be used against us in a negative way.

Source: United States v. Hamilton, (10th Cir. Kan., No. 07-3273, Nov. 5, 2009) [this instruction was “thorough” and sufficient to cure the error].

You Can’t Tell The Jurors What Reasonable Doubt Is, But You Can Tell Them What It Isn’t. Huh? (Kentucky)

The illogic of not defining reasonable doubt for the jurors was taken to a new level by a Kentucky appellate court in Conley v. Commonwealth [Notice: This opinion is UNPUBLISHED.] [excerpt after the jump].

In Kentucky the term reasonable doubt may not be defined by the judge or counsel at any point during the trial proceedings, including voir dire. (Cuzick v. Commonwealth (Ky. 2009) 276 S.W.3rd 260, 267; see also Johnson v. Commonwealth (Ky. 2005) 184 S.W.3rd 544, 549-50.)

In Johnson the prosecutor cleverly circumvented the “no-definition” rule by informing the jurors during voir dire  that reasonable doubt was not the same thing as "beyond a shadow of a doubt," and that the prosecution did not have to prove anything beyond a shadow of a doubt.  The majority opinion of the Kentucky Supreme Court held that such a statement – “which, at most, attempted to show what reasonable doubt was not, did not amount to a violation of the rule against defining reasonable doubt.” [Internal quotation marks omitted.] (Johnson, 184 S.W.3rd at 349.)  The problem's with the majority's position was aptly summed up by the dissent:

"With today's decision, we have regressed to where we were in 1978. Trial courts cannot instruct juries as to the meaning or definition of "reasonable doubt," but prosecutors and defense counsel can urge juries to adopt their own client-serving definitions (for surely this Court is not holding that a prosecutor can tell the jury its version of the meaning of reasonable doubt but defense counsel cannot). If jurors are to be instructed on the meaning or definition of reasonable doubt, the instruction should come from the neutrality of the bench, not the advocacy of counsel."

Johnson v. Commonwealth, 184 S.W.3d 544, 554 (Ky. 2005), dissenting opinion.

It is also noteworthy that the majority's so-called non-definition technique i.e., telling the jury what reasonable doubt is not is actually used by many states in affirmatively defining reasonable doubt.  Montana: MCJI 1-104 (2009) ["Beyond a reasonable doubt does not mean beyond any doubt or beyond a shadow of a doubt."]; Idaho: ICJI 103 ["Reasonable doubt is . . . not mere possible doubt. . ."]; New York: [Reasonable doubt is "not an imaginary doubt. . . the law does not require the People to prove a defendant guilty beyond all possible doubt.."]; Federal Judicial Center, Pattern Criminal Jury Instructions,  § 21, at pp. 17-18 ["...in criminal cases the law does not require proof that overcomes every possible doubt."]; Florida: Inst. 3.7 ["A reasonable doubt is not a mere possible doubt, a speculative, imaginary or forced doubt."] Thus, Johnson’s conclusion that the prosecutor’s argument did not “define” reasonable doubt is unpersuasive.

   

In Conley the prosecutor used the gambit authorized by the Johnson majority to inform the jurors on voir dire – over defense objection – that reasonable doubt did not mean “beyond all doubt” or “beyond a shadow of a doubt.”  In an UNPUBLISHED opinion the Conley court rejected the defense request to overrule Johnson because as an intermediate appellate court, it was not “at liberty” to do so.

The “take-away” from Johnson and Conley [UNPUBLISHED] is that – as suggested by the dissenting opinion quoted above –  the majority view in Johnson opens the door for the defense to make non-definitional comparisons between reasonable doubt and other lesser standards of proof.  For example, the defense should be permitted to tell the jury that reasonable doubt is “not the same thing” as clear and convincing evidence and the prosecution must prove guilt to a higher level of certainty.  This could be an effective technique since clear and convincing evidence itself is a very high standard.

   

For briefing and sample instructions on burden comparisons see the following subscription-based resources:

Forecite National™
Chapter 270 - Burdens And Standards Of Proof 
Forecite California™
F 2.90 - Reasonable Doubt

Willful Violation Of Securities Laws: Knowledge That Act Is “Wrongful” vs. “Unlawful” (9th Circuit)

United States v. Reyes [excerpt after the jump] discussed different definitions of the term “willfully” depending on the charged offense.

Instruction On Witness With Interest In The Outcome Of The Case Undermines The Presumption Of Innocence (2nd Circuit)

It is not uncommon for witness credibility instructions to include the witness’s interest in the outcome of the case as a factor bearing on credibility. United States v. Rodriguez [excerpt after the jump] explained the Second Circuit’s view that such an instruction should not be given when the defendant has testified because it "undermines the presumption of innocence."

Consciousness Of Guilt: Limited To Co-Defendants (11th Circuit)

In multiple defendant cases the instructions need to be tailored to each defendant.  (See e.g., United States v. Smith [UNPUBLISHED] [excerpt after the jump].)

Need For Instructions On Jurors’ Use Of Written Instructions (9th Circuit)

Typically written instructions are provided to the jurors without any instruction or direction as to how they will be used. However, in the absence of any such instructions there is no assurance that the jurors properly utilized the written instructions.  For example, in Vasquez v. Walker [UNPUBLISHED] [excerpt after the jump] the foreperson apparently asserted control over the written instructions and precluded the other jurors from reading them.  Obviously, this defeated the purpose of providing the written instructions to the jurors in the first place.

Deliberate Ignorance Instruction: Required Evidentiary Showing (5th Circuit)

In U.S. v. Miller [excerpt after the jump], the Fifth Circuit discussion the two essential elements of deliberate ignorance as well as the kind of evidence necessary to warrant a deliberate ignorance instruction.

Deliberate Ignorance: Instruction That Being Negligent, Careless Or Foolish Is Not Sufficient (5th Circuit)

See United States v. Brown, (5th Cir. Tex. No. 07-20471, Nov. 23, 2009) [deliberate ignorance instruction properly told jurors that “demonstrating that the defendant was negligent, careless or foolish" was insufficient.]

Sample Instruction: Unredacted Recording Or Transcript Of Defendant’s Interrogation Which Includes Alleged Statement Of Facts By The Interrogators

In considering the statements made by ____________ [name of defendant] during the videotape interrogation, you're instructed that any alleged statement of facts made by the officers during the interrogation are not to be considered by you as evidence. Only ____________’s [name of defendant] responses are evidence that may be used against him and/or any other defendant.

Source: Nguyen v. Kane, 2009 U.S. Dist. LEXIS 105952, p. 109-110, fn. 28 (E.D. Cal. Nov. 12, 2009)

Limiting Instruction: Consciousness Of Guilt Evidence Not To Be Considered As To Criminal Propensity

A consciousness of guilt instruction may be based on conduct which itself is criminal. (E.g., intimidation of a witness.)  Robinson v. Graham [excerpt after the jump] holds that in such situations the consciousness of guilt instruction must include language limiting consideration of the alleged conduct on the issue of propensity to commit criminal conduct.

Misinstruction On Element Of Offense May Rise To Level Of Constitutional Defect

It is beyond dispute that the failure to submit an element of the charge to the jury is a federal constitutional error.  (See Neder v. U.S. (1999) 527 U.S. 1, 9-10.)  Saesee v. Horel [excerpt after the jump] considered to what extent misinstruction on an element may be constitutional error.

Sample RICO Instruction: Association Of Substantive RICO Offense With The Enterprise Element

A person cannot be associated with or employed by an enterprise if he does not know of the enterprise's general existence or the nature of its activities. Thus, in order to prove this element, the government must prove beyond a reasonable doubt that the defendant was connected to the enterprise in some meaningful way, and that the defendant knew of the enterprise's general existence of the enterprise and of the general nature of its activities.

Source: Modification of Tenth Circuit Pattern Criminal Instruction 2.76.4 approved in United States v. Harris, 2009 U.S. Dist. LEXIS 108844, p. 28 (D. Kan. Nov. 20, 2009).

Failure To Instruct On Defense Theory As Reversible Error

The standard of prejudice for failure to instruct on a defense theory is not always clear cut. Saesee v. Horel [excerpt after the jump] articulates a standard based on the legal soundness and factual applicability of the theory.

Withdrawal From RICO Conspiracy: Evidence Required

As with other conspiracies, instruction on withdrawal from a RICO conspiracy is required if the defendant committed acts inconsistent with the object of the conspiracy. (See e.g., United States v. Harris; see also this Forecite Blog™ post. [single act is sufficient for the withdrawal instruction].)

Cautionary Instructions Are Instrumental To Analysis Of Judge’s Discretion With Respect To Transcripts of Electronic Recordings

In evaluating a trial judge’s discretion with respect to the use of written transcripts of electronic recordings the giving of a detailed cautionary instruction is crucial. (See e.g., United States v. Harris, 2009 U.S. Dist. LEXIS 108844, p. 48-49 (D. Kan. Nov. 20, 2009) [excerpt after the jump].)

Sample RICO Instruction: Applicability To Illegitimate Enterprises

To prove that the racketeering acts pose a threat of continued racketeering activity, the government must establish that (1) the acts are part of a long-term association that exists for criminal purposes; or (2) the acts are a regular way of conducting the defendant's ongoing business; or (3) the acts are a regular way of conducting or participating in an ongoing enterprise. A threat of continued unlawful activity may be established when the evidence shows that the racketeering acts are part of a long-term association that existed for criminal purposes or when the racketeering acts are shown to be the regular way of conducting the affairs of the enterprise. In deciding whether there is a threat of continued racketeering activity, you are not limited to specific racketeering acts charged against a defendant; rather, in addition to considering such acts you also may consider the nature of the enterprise and other unlawful activities of the enterprise and its members viewed in their entirety, including both charged and uncharged unlawful activities.

Source: Approved in United States v. Harris, (D. Kan. Nov. 20, 2009) Tenth Circuit Pattern Criminal Instruction 2.76.5 tailored to the circumstances of the Harris case by removing the word "legitimate."

Instruction Elements: RICO Enterprise (Federal)

United States v. Harris [excerpt after the jump] emphasized that the existence of an “enterprise” is a separate element from the pattern of racketeering activity.

Sample Instruction: Burden Of Proof Never “Shifts” To The Defense

The burden is always upon the prosecution to prove guilt beyond a reasonable doubt. This burden never shifts to a defendant.

Source: United States v. Hoyle, 2009 U.S. Dist. LEXIS 109119, p. 28 ( E.D. Mich. Nov. 23, 2009)

Sample Cautionary Instruction: Buttons Worn By Members Of The Audience (California)

I want to make sure that you realize that nothing that the audience says or does--in fact, nothing that anybody does who's not a sworn witness--can be used as evidence in this case. So realize that a badge worn by an audience member is no more evidence than anything else that you might see on the street or anywhere else. I've already told you that you can only use the testimony and evidence that's admitted here in court, and that does not include any communication that you might get from the badges themselves; but there's a second issue that could conceivably arise by seeing the badges. [¶] You might feel sympathetic or even empathetic in reaction to seeing the badge. Remember that your responsibility when you deliberate in this case is to make your decisions without any effect from sympathy or passion or prejudice. Those decisions have to be impartial, objective decisions, so I want to make sure that you're sensitized to the fact that sympathy can't play any part in decisions that you ultimately have to make in this case.

Source: People v. Zielesch, 179 Cal. App. 4th 731, 743-744 (Cal. App. 3d Dist. 2009); see also People v. Houston (2005) 130 Cal.App.4th 279 [29 Cal. Rptr. 3d 818].

CAVEAT: In a death penalty case it may be appropriate to object to the anti-sympathy passage in the last sentence of this instruction. The United States Supreme Court in Johnson v. Texas, 509 U.S. 350, 371-372 (U.S. 1993) has suggested that anti-sympathy instructions do not violate the 8th Amendment:

"There might have been a juror who, on the basis solely of sympathy or mercy, would have opted against
the death penalty had there been a vehicle to do so under the Texas special issues scheme. But we have not construed the Lockett line of cases to mean that a jury must be able to dispense mercy on the basis of a sympathetic response to the defendant. Indeed, we have said that "it would be very difficult to reconcile a rule allowing the fate of a defendant to turn on the vagaries of particular jurors' emotional sensitivities with our longstanding recognition that, above all, capital sentencing must be reliable, accurate, and nonarbitrary." (Saffle v. Parks, 494 U.S. 484, 493 (1990); see also California v. Brown, 479 U.S. 538, 542-543 (1987) [permitting an instruction that the jury could not base its sentencing decision on sympathy].)"

However, until the issue is expressly resolved in the context of a direct appeal it would be wise to pressure the issue at trial.

Instruction On Inconsistent Defense Theories: Self Defense And Provocation Manslaughter Are Not Mutually Exclusive; Sufficiency Of Evidence For Instruction On Provocation (Alabama)

It is not unusual for the trial judge to require the defense theory instructions to be consistent.  Normally such an approach is erroneous because the defense should be permitted to rely on inconsistent defense theories. For example, Lane v. State [excerpt after the jump] reversed because the judge failed to instruct on both self defense and provocation.

Limited Purpose Evidence: Primary Consideration Is Whether Jurors Can “Compartmentalize” The Evidence (Alabama)

One of the problematic assumptions courts make about limiting instructions is that the jurors can “compartmentalize” the evidence.  (See United States v. Nejbauer, No. CR09-0670-PHX-NVW., D. Ariz. Nov. 2, 2009) [excerpt after the jump].)

Ministerial Communication vs. Supplemental Instruction

Does each and every communication by the judge to the jury constitute a “jury instruction”?  Reyes v. Smith [excerpt after the jump] purported to distinguish between supplemental jury instructions and “ministerial communications.” However, as a practical matter the distinction may not always be a clear one. Technically speaking any directive from the judge to the jury is an "instruction."

Sample Instruction: "Catch All" Mitigation (Death Penalty)

Any other matter, any other aspect of the Defendant's character or record, and any other circumstance of the offense brought before you during the trial of this cause which you, the Jury, deem to be mitigating on behalf of the Defendant may be considered.  Consider mitigating circumstances, which may also stem from any fact connected with the circumstances of the offense or the offender - - the defendant's background, his age, his experience, his character, his demeanor, his family or any other facet of his life - - that you believe or feel weighs against a sentence of death.

Source: Wiley v. Epps, (No. 2:00CV130-P-A, N.D. Miss. Nov. 5, 2009) [“[T]he United States Supreme Court has long-approved of "catch-all" instructions of the type given in this case to cure any deficiency in jury instructions. See Brown v. Payton, 544 U.S. 133, 125 S. Ct. 1432, 161 L. Ed. 2d 334 (2005); Boyde v. California, 494 U.S. 370, 110 S. Ct. 1190, 108 L. Ed. 2d 316 (1990). Petitioner is entitled to no relief on this issue].

Defense May Waive “So-Called” Beneficial Instructions

Sometimes courts justify seemingly argumentative instructions on matters such as consciousness of guilt using the rationale that the instruction benefitted the defense.  (See e.g., People v. Kelley, (CA 1992 1 Cal 4th 495, 531-32)) However, it is widely recognized that the defense may waive so-called beneficial limiting instructions.  (See e.g., Atkins v. Lafler, (No. 07-14223, E.D. Mich. Nov. 5, 2009) [excerpt after the jump].)  This same reasoning should allow the defense to object to other “beneficial” instructions such as those regarding  consciousness of guilt.

Instructing Jurors That Security Measures Are “Routine”

One of the best ways to diffuse the impact of courtroom security procedures is to inform the jurors that such procedures are “routine” or “normal.”  This implies that procedures are employed as a matter of course in all cases and thus, have nothing to do with the individual defendant who is on trial.  (See Brown v. Gaetz, 2009 U.S. Dist. LEXIS 104208, p. 14 (N.D. Ill. Nov. 5, 2009) [excerpt after the jump].)

Hypothetical Examples In Jury Instructions (New York)

The use of hypotheticals in jury instructions can be problematic because they may suggest to the jury that the judge has an opinion about the factual issues presented by the evidence.  Nevertheless, the use of a hypothetical is not always error.

Withdrawal From Conspiracy: “Any Act” Inconsistent With The Object Of The Conspiracy May Be Sufficient To Satisfy Defendant’s Prima Facie Burden (3rd Circuit)

In United States v. Detelich [excerpt after the jump] explains that for purposes of justifying a withdrawal instruction “any act” inconsistent with the object of the conspiracy will suffice.

Sample Instruction: Testimony Of Accomplice Who Pled Guilty (6th Circuit)

Ladies and gentlemen, you have heard the testimony of ________ <insert name of accomplice>. He is alleged to have been involved in the same crime that the defendant _________ <insert name of defendant> is charged with committing. You should consider this testimony with more caution than other witnesses. You also heard that  ________ <insert name of accomplice> has pled guilty to a crime. The fact that ________ <insert name of accomplice> has pled guilty is not evidence of _________’s <insert name of defendant> guilt and cannot be considered against him. The evidence of the Plea Agreement is admitted to allow you to consider the testimony and Mr.  ________’s <insert last name of accomplice> credibility. At the end of the case, I will give you more definite instruction about how that testimony fits in. I just wanted to give you that limited instruction at this point in time.

Source: Given at end of accomplice’s testimony in United States v. Mongham, slp opn. pp. 3-4 (6th Cir. Ohio No. 07-4161, Dec. 16, 2009).

Ninth Circuit Calls For Clarification Of VICAR* Instruction (9th Circuit)

As with this previous post United States v. Bryant [excerpt after the jump] provides another example of why the standard pattern instructions are not sacrosanct. There will always be a hiatus between judicial criticism or disapproval of a standard instruction and the instruction committee's correction of the defect.

Causation: California’s Civil Instruction Provides “Greater Clarity” Than The Criminal Instruction

It is not unusual for the civil and criminal pattern instructions to contain different iterations of the same legal principle. Brady v. Carey [excerpt after the jump] is an example of a situation where a court unabashedly announced its preference for the California civil causation instructions. Presumably California's criminal committee will revise the criminal instructions (CALCRIM) in light of Brady v. Carey. But until then California practitioners would be justified in requesting the CACI civil instruction when appropriate.

No “Extra Credit” For Clergy Witness

The type of instruction, employed in Hunt v. Galaza [excerpt after the jump], is more commonly used when the prosecution relies on law enforcement witnesses. However, the same rationale should apply to clergy witnesses. 

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

Forecite National™
27.6.1 - Testimony Of Police Officers: Credibility To Be Judged As Any Other Witness
The Shellow Collection
Law Enforcement Officers And Agents

Drug Charges: Agency Defense (New York)

Agency is a defense theory which effectively mitigates the charge as to one who acts solely as the agent of a drug buyer. (See e.g., Banks v. Conway [excerpt after the jump].)

Inability Of Limiting Instruction To Cure Prejudice (4th Circuit)

United States v. Hawkins [excerpt after the jump] is another example of a limiting instruction which did not cure a trial error. This blog will continue to collect other examples in future posts. (See tag: Inability of Instructions to Cure Error.) 

Improper Use Of The Term “Victim” When The Defense Contests The Fact That A Crime Has Been Committed (Connecticut)

Most jurisdictions prohibit jury instructions which are argumentative. State v. Brown [excerpt after the jump] illustrates that even the use of a single word can make the instruction erroneously argumentative.

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

Forecite National™ 
6.2 - Examples Of Improper Jury Instruction Language Or Wording

Standard Pattern Instructions Are Not Sacrosanct (Florida)

Peterson v. State [excerpt after the jump] is a great illustration of the misnomer that standard pattern instructions are sacrosanct. Even though the Florida Supreme Court expressly approves the pattern instructions before they are enacted, the Peterson court admonished trial judges that the existence of standard jury instructions "does not relieve the trial court of its obligation to determine whether the standard instructions accurately and adequately state the law applicable to a given case."

Strategies When The Instructions Fail To Define Reasonable Doubt

The United States Supreme Court has taken a schizophrenic approach to jury instruction on reasonable doubt.  On the one hand the Court has mandated that the jurors always be instructed on the prosecution’s burden to prove guilt beyond a reasonable doubt. On the other hand, the Court does not require the jury instructions to define reasonable doubt:

"The beyond a reasonable doubt standard is a requirement of due process, but the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course." (Victor v. Nebraska, 511 U.S. 1, 5, 114 S. Ct. 1239, 127 L. Ed. 2d 583 (1994).) "[S]o long as the court instructs the jury on the necessity that the defendant's guilt be proved beyond a reasonable doubt, the Constitution does not require that any particular form of words be used in advising the jury of the government's burden of proof. Rather, taken as a whole, the instructions must correctly convey the concept of reasonable doubt to the jury." (Id.) (internal quotation and citations omitted).

The Walking Dictionary Myth

A nearly universal jury instruction rule provides that technical legal terms should be defined for the jurors while words of common usage within the ordinary understanding of the jurors need not be defined.  (See e.g., State v. Heinzer, 347 N.W.2d 535, 537 (Minn. App. 1984), review denied (Minn. July 26, 1984).)  While the rule sounds reasonable in theory, it is actually founded upon the legal fiction or myth that lay persons who serve on juries are “walking dictionaries.” 

State v. Ogris (UNPUBLISHED) and United States v. Lopez [excerpts after the jump] exemplify the fundamental problems with requiring jurors to supply their own definitions of “common-usage” terms.

(1) It is not always easy to determine whether or not a term is within the ordinary understanding of the juror.

(2) There may be more than one dictionary definition of a term.  For example, in California the term “wanton” does not need to be defined.  (See People v. Richie (1994) 28 Cal.App.4th 1347, 1361.)  Yet the dictionary includes multiple definitions of wanton which run the gamut from “careless” to “willful” to “malicious.”  A lay juror who is uneducated in the law might well not know which of these definitions to use.

(3) It is simply not true that the jurors will necessarily know the correct definition of the common-usage terms in the instructions.  As Lopez demonstrates, even courts “often turn to dictionary definitions for guidance. [Citation.]” (United States v. Lopez, (11th Cir. Fla., No. 08-13605, Dec. 22, 2009).  Moreover, there are no IQ or educational prerequisites for jury service.

(4) In most jurisdictions the jurors are precluded from consulting dictionaries so they are left to guess at the meaning of words they do not understand.  Furthermore, even if some jurors understand the term others may not understand and may be too embarrassed to ask, or may ask another juror who may provide an erroneous definition.

In sum, when a so-called common-usage term is important the walking dictionary myth should be challenged head on so that no juror is left to guess about the meaning of the term. Either the jurors should be instructed as to the appropriate dictionary meaning of the term and/or counsel should seek leave to provide the definition to the jurors in argument.  (See this Forecite Blog™ post.)

For additional commentary on the “Walking Dictionary Myth” see this article at JuryInstruction.com.