Inability Of Limiting Instruction To Cure Prejudice: Prior Convictions (6th Circuit)

United States v. Jenkins [excerpt after the jump] questioned the ability of a limiting instruction to negate the prejudicial impact of evidence that the defendant committed a prior conviction.  The danger is that the jury will treat the prior conviction as propensity evidence.

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297.3.1 - Situations Where Cautionary Or Limiting Instructions May Not Cure Prejudice
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PG X(E)(19)(1) - Inability Of Limiting Instructions To Cure Error
F 2.50 n2  Ineffectiveness Of Limiting Instruction As To Other Crimes Evidence

DUI/DWI: Instruction On Defendant’s Refusal To Take A Breath Test As Improper Comment On The Evidence (Texas)

Lindley v. State (UNPUBLISHED)[excerpt after the jump] held that the trial judge erroneously instructed the jurors regarding the defendant’s refusal to take a breath test. (See also Bartlett v. State, 270 S.W.3d 147, 152 (Tex. Crim. App. 2008).)

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34.7 - Refusal To Submit To Blood Alcohol Test
89.5.11 - Drunk Driving: Challenge To Admissibility Of The Fact That Defendant Refused To Take The Sobriety Test
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F 2.06 n4 - Consciousness of Guilt From Defendant’s Refusal to Submit to Blood Test
F 16.835 n2 - Refusal To Take The Sobriety Test:  Violation Of 5th Amendment

Self-Defense: Aggressor Instruction Was Prejudicial Error (North Carolina)

State v. Jenkins [excerpt after the jump] held that an aggressor instruction was improperly included in the self-defense instructions because there was insufficient evidence that the defendant was the aggressor.

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253.4 - Self Defense, Defense Of Others, Defense Of Property -- Complete
253.4.15 - Self Defense By Aggressor
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Defense Theory: Provocation
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F 3471 - Right to Self-Defense: Mutual Combat Or Initial Aggressor
F 3471 - Inst 2 Mutual Combat Or Initial Aggressor: Burden Of Prosecution

Curative Instruction Held Insufficient Where Witness Improperly Implied That Defendant Had Confessed (California)

A jury’s belief that the defendant may have confessed eviscerates the presumption of innocence; (See  Arizona v. Fulminante (1991) 499 U.S. 279, 312; see also People v. Navarrete [excerpt after the jump].  Hence, when a prosecution witness has improperly implied that the defendant confessed a curative instruction cannot eliminate the prejudice. 

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Chapter 28 - Out Of Court Statements By Defendant
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Defendant's Statements; Hearsay And Extra Judicial Statements
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F 2.70 - Admissions/Confession
F 358 - Evidence of Defendant's Statements

Sample Instruction: Burden To Prove Every Element Of The Charge Remains With Prosecution Even If The Defendant Presents Evidence

Throughout this proceeding, the defendant is presumed to be innocent. The people must 'prove, beyond a reasonable doubt, every element of the crime, including that the defendant is the person who committed that crime. Whether or not the defendant introduced evidence, the burden of proof remains on the People.

Source: Adapted from instruction approved in Algarin v. Breslin, 2010 U.S. Dist. LEXIS 9533, 14-15 (E.D.N.Y., 06-CV-3175 (SLT), Jan. 29, 2010); see also U.S. v. Rivera, 971 F.2d 876, 884 (2d Cir. 1992)  [no prejudice where trial judge gave instruction that government always has the burden of proof which "never shifts," despite prosecutor's implication that defense counsel, during cross-examination of a police officer, should have elicited certain testimony supporting defendant's claim].

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5.2.11 - Identifying The Party Who Has The Burden Of Proof
270.2 - Presumption Of Innocence - Prosecution Burden To Prove Guilt
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F 103.1 Inst 5 - Burden Of Proof Never Shifts To Defendant

Reasonable Doubt Is Properly Defined In Terms Of Certainty

In Sutton v. Bell [excerpt after the jump] the federal district court considered the propriety of a reasonable doubt instruction which instructed the jurors that that the State must prove each element of the crime beyond a reasonable doubt and that if their minds were, after a careful and impartial consideration of all the evidence, “unable to rest easily as to the certainty of guilt,” then they must find Sutton not guilty.

On federal habeas corpus the district court concluded that the language properly explained the State's burden of proof and does not create a reasonable likelihood that the jury applied the challenged instruction in a way that would lower the State's burden of proof.

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270.5 - Reasonable Doubt Standard: Specific Words And Phrases
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Reasonable Doubt
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F 2.90 - Reasonable Doubt 

“Blurt Outs” – Effectiveness Of Curative Instructions (Maryland)

Washington v. State [excerpt after the jump] examined whether an instruction can cure the prejudice from a "blurt out" of an improper matter by a witness.

In so doing, the Court discussed the “well established analytical framework” for determining such questions.

Sample Instruction: Deadly Weapon

In deciding whether the alleged instrument was a weapon capable of causing death, you may consider the direct proof of the character of the weapon, any exhibition of it to the jury, evidence of the nature of any wound or absence of wound or other evidence of the capability of the instrument. A firearm when used as such is a deadly weapon as a matter of law.

Source: Futch v. State, slip opn. p. 7 (Ga., S09A1544, Jan. 25, 2010).

Failure To Give Independent Act Instruction Was Reversible Error (Florida)

In Florida when two or more co-felons commit a crime pursuant to a common plan all participants in the common plan are liable for any crimes which resulted from the forces they set in motion.  (In some jurisdiction, such as California, this theory of liability is called the natural and probable consequences doctrine.)  However, this doctrine should not apply to crimes which resulted from the acts which were independent from the original plan. (See e.g, Harvey v. State [excerpt after the jump].)

Whether Wire Fraud (18 U.S.C. 1343) Requires Intent To Cause Pecuniary Loss (9th Circuit)

In United States v. Treadwell [excerpt after the jump] the Ninth Circuit examined opinions from several circuits in addressing the question of whether the “intent to defraud” element of 18 U.S.C. 1343 includes an intent to cause pecuniary loss. Treadwell concluded that the statute only requires that the defendant by material misrepresentations “intended the victim to accept a substantial risk that otherwise would not have been taken.”

Sample Instruction: Defendant’s Failure To Testify (Alaska)

The law does not compel any defendant in a criminal case to take the witness stand and testify, and no presumption of guilt may be raised, and no inference of any kind may be drawn from the failure of a defendant to testify.

Source: Given in Gemmill v. State, (Alaska Ct. App., No-A-10209, No. 5561, Jan. 27, 2010)

Sample Instruction: Intent – Two Reasonable Interpretations

The specific intent with which an act was done may be shown by the circumstances surrounding the commission of the act. However, you may not find the Defendant guilty of the crimes charged in either Count I or II unless the proved circumstances are not only, number one, consistent with the theory that the defendant had the required specific intent, and two, that these circumstances cannot be reconciled with any other rational conclusion. Also, if the evidence as to any specific intent permit two reasonable interpretations, one of which points to the existence of the specific intent and the other to its absence, you must then adopt that interpretation which points to its absence. If, on the other hand, one interpretation of the evidence as to the specific intent appears to you to be reasonable and the other interpretation to be unreasonable, then you must accept the reasonable and reject the unreasonable.

Source: Hellon v. Felker, (E.D. Cal., No. CIV S-0701816 LKK CHS, Jan. 26, 2010) [jury was “properly instructed” with this instruction].

Instruction On Factors Relating To Wholesale Buyer-Seller Drug Transaction (7th Circuit)

In United States v. Johnson [excerpt after the jump] the Seventh Circuit considered what factors distinguish a conspiracy from a nonconspiratorial wholesale buyer-seller relationship. The court concluded that of the six factors the jurors were instructed to consider only one “actually distinguishes” conspiracy from nonconspiracies.

Robbery: Immediate “Threats” Should Not Be Defined In Terms Of Future Harm (Washington)

In State v. Carlis [UNPUBLISHED] [excerpt after the jump] the charge of robbery required a jury finding that the defendant threatened to use immediate force.  However, the judge instructed the jurors that the term threat “means to communicate directly or indirectly the intent to cause bodily injury in the future to the person threatened. . . .”  The state conceded that this instruction should not have been given.

An “Unless” Clause In A Permissive Inference Instruction May Convert It To A Mandatory Instruction (Washington)

In State v. Deal, 128 Wn.2d 693, 697 (Wa. 1996) the judge gave the jurors the following inference instruction:

"A person who enters or remains unlawfully in a building may be inferred to have acted with intent to commit a crime against a person or property therein unless such entering or remaining shall be explained by evidence satisfactory to the jury to have been made without such criminal intent. This inference is not binding upon you and it is for you to determine what weight, if any, such inference is to be given."

Notwithstanding the last sentence which told the jurors that the inference was “not binding” Washington’s Supreme Court held  that a jury instruction that included the “unless” clause created a mandatory presumption because it required “the defendant to prove by some quantum of evidence that the inference should not be drawn.” Id. at 701. This improperly shifted the burden of proof to the defendant because a reasonable juror could be forced to conclude that the intent element existed unless the defendant presented satisfactory evidence explaining his presence at the premises in question. Id. The effect of this instruction, then, was to relieve the State of its burden of proving criminal intent beyond a reasonable doubt. Id.

Similarly, in State v. Cantu, 156 Wn.2d 819, 826-27, 132 P.3d 725 (2006), the Court reaffirmed its holding in Deal that an inference becomes an impermissible mandatory presumption when it requires the defendant to submit evidence to rebut the inference of his criminal intent.  (Compare State v. Drum, (Wash., No. 81498-8, Jan. 21, 2010).)

Sample Argument In Response To Refusal Of Instruction On The Basis That It Is A Matter For Argument (Texas)

When the judge denies a requested instruction on the basis that it is a matter for argument this should open the door for counsel to use the “argument gambit” discussed in this post. The argument from In re Commitment of Moore [excerpt after the jump] illustrates how argument can be used to explain the substance of a refused instruction. However, the argument in In re Commitment of Moore could have been more effective if counsel had explained that this argument was being made at the behest of (or with the permission of) the judge and thus the jury should abide by the argument as if it had actually been included in the instructions. See “Argument Gambit” post.

Sample Instruction: Quality Of The Evidence Is The Primary Consideration (Ohio)

It is the quality of the evidence that must be given primary consideration and that may or may not be commensurate with the quantity of the evidence.

Source: Given in State v. Robinson, 2010 Ohio 150, P25 (Ohio Ct. App., Cuyahoga County, No. 92565,  Jan. 21, 2010).

Flight Instruction: Should The Trial Judge Exercise Caution? (Mississippi)

In some jurisdictions judges are required to instruct on flight without any consideration of mitigating matters such as the defendant’s explanation for the flight or the probative value of the flight.  (E.g., California [flight instruction is statutorily required in every case where there is evidence of flight].)  In other jurisdictions flight instructions are disapproved as improperly argumentative.  (E.g., Ninth Circuit Model Instructions 4.20 [“the Committee generally recommends against giving specific inference instructions in such areas as flight, or concealment of identity. . . .”].)

While the desirability of a flight instruction will vary from case to case and depending on any cautionary language in the instruction, Mississippi’s approach provides a middle ground which may provide a basis for successfully objecting to a flight instruction in some cases.  As explained in Williams v. State [excerpt after the jump] the Mississippi Supreme Court has set forth a two-pronged test:

(1) Only unexplained flight merits a flight instruction; and 

(2) Flight instructions are to be given only in cases where that circumstance has considerable probative value.

However, this test may be loosely applied. For example, Williams approved the instruction by concluding that the defendant’s explanation of his flight was “unreasonable.”

Trial Judge Should Have Supplemented The Pattern Instructions By Defining The Terms “Bodily Harm” And “Great Bodily Harm” (Kansas)

State v. Delacruz [excerpt after the jump] provides a good example of the trial judge’s duty to modify or supplement the standard pattern instructions.  DeLacruz was charged with two kinds of battery: one required the infliction of “bodily harm” and the other “great bodily harm.”  However, the Kansas pattern instructions (PIK) failed to distinguish between or define the two kinds of harm.  Apparently taking its cue from PIK the trial court did not define the terms and informed the jurors that “there are no definitions that this Court can give you to define ‘great bodily harm’ or ‘bodily harm.’”

The appellate court advised that “it would have been helpful for the district court to modify the PIK instruction in this instance. . . .” (See also State v. Gallegos, 286 Kan. 869, 878, 190 P.3d 226 (2008) [PIK instructions should be the “starting point in preparation” but “[i]f the particular facts in a given case require modification of the applicable pattern instruction or the addition of some instruction not included in PIK, the trial court should not hesitate to make such modification or addition.”].) However, the Court did not need to decide whether the failure to define the terms was error because the judge’s affirmative statement that the two terms could not be defined was reversible error.

Iowa Appellate Court Reverses Conviction Due To Defendant’s Absence When The Judge Responded To The Jurors Question About The Instructions (Iowa)

Everett v. State [excerpt after the jump] reached two important conclusions.

First, the Court recognized that when the jurors pose a question “showing confusion [about] the meaning of crucial terms in [an] instruction . . . directing the jury to reread the jury instruction provide[s] no remedy to the jury’s confusion. . . .”  (See also State v. Griffin, 323 N.W.2d 198, 201 (Iowa 1982).)

Second, Everett concluded that the defendant’s absence during the discussion of the jurors’ question raised a presumption of prejudice which, under the circumstances, the state had not rebutted.

Indiana Abandons The So-Called “Mere Possession” Rule And Authorizes A New Instruction Regarding Unexplained Possession Of Recently Stolen Property (Indiana)

In Fortson v. State [excerpt after the jump] the Indiana Supreme Court thoroughly analyzed the notion that the unexplained possession of recently stolen property standing alone is sufficient to convict the defendant of theft.  The Court concluded that the “better view” allows unexplained possession of recently stolen property to be considered along with all the other evidence. In so doing, the Court approved the following instruction which it adapted from the one endorsed by the Montana Supreme Court:

You are permitted but not required to infer from the defendant's possession of the property of another that the defendant is guilty of theft only if in your judgment such an inference is warranted by the evidence as a whole. It is your exclusive province to determine whether the facts and circumstances shown by the evidence warrant the inference to be drawn by you.    

The possession of the property by the defendant does not shift the burden of proof which is always on the State to prove beyond a reasonable doubt every essential element of the offense with which defendant is charged.

The defendant's possession of property belonging to another may be satisfactorily explained in the evidence independently of any testimony of the defendant personally. If [the] defendant does take the witness stand to explain his [or her] possession of the property, the weight to be attached to his [or her] explanation is exclusively for you to determine. Even if defendant's possession of the property is unexplained, you cannot find [the defendant] guilty, if after consideration of all the evidence in the case, you have a reasonable doubt as to his [or her] guilt.
 
If under the evidence, defendant's possession of the property of another is consistent with his [or her] innocence, then the jury should acquit the defendant unless [the state proves his or her guilt] beyond a reasonable doubt by other evidence in the case.

Source: State v. Kramp, 651 P.2d 614, 622 (Mont. 1982).

Right To Instruction On Non-Included Lesser Offense: Kentucky Limits Rule To “Mutually Exclusive” Offense (Kentucky)

In Sanborn v. Commonwealth, 754 S.W.2d 534, 550 (Ky. 1988) the Kentucky Supreme Court held that the trial judge must instruct on uncharged not included lesser crimes whenever the evidence suggests the existence of such crimes. However, Hudson v. Commonwealth, 202 S.W.3d 17 (Ky. 2006) departed from Sanborn by limiting the duty to instruct to alternative theories of the crime which are mutually exclusive with the charged offense. (See also e.g., Bratcher v. Commonwealth [excerpt after the jump].)

Equally Reasonable Interpretations Of The Evidence – Both Direct And Circumstantial – Should Be Resolved In Favor Of The Defense (Idaho)

Some states have eliminated the purported distinction between direct and circumstantial evidence.  (See e.g., State v. Shackelford, [excerpt after the jump].)  Those states have eliminated special jury instructions on circumstantial evidence under the rationale that the standard reasonable doubt instruction is sufficient.  However, assuming that there is no difference between direct and circumstantial evidence then it may also be argued that the principles embodied in the special circumstance evidence instructions (e.g., equally reasonable interpretations of the evidence is insufficient to prove guilt) should apply to both direct and circumstantial evidence.

Sample Instruction: Testimony Of Witness Who Entered Into Plea Agreement (District of Columbia)

A witness who has entered into a plea agreement is under the same obligation to tell the truth as is any other witness because the plea agreement does not protect him against a prosecution for perjury or false statement should he lie under oath. However, you may consider whether a witness who has entered into such an agreement has an interest different from any other witness. A witness who realizes that he may be able to obtain his own freedom or receive a lighter sentence by giving testimony may have a motive to lie. The testimony of a witness who has entered into a plea agreement should be received with caution and scrutinized with care. You should give the testimony such weight as in your judgment it is fairly entitled to receive.

Source: given in Woods v. United States, (D.C., No. 08-CF-760, Jan. 21, 2010).

Sample Instruction: Both Underlying Facts And Inferences From Those Facts Must Be Proved Beyond A Reasonable Doubt

Any facts upon which an inference of guilt can be drawn must be proven beyond a reasonable doubt. After you have determined what facts, if any, have been proven beyond a reasonable doubt[,] then you must decide what inferences, if any, can be drawn from those facts. Before you may draw an inference of guilt, however, that inference must be the only one that can fairly and reasonably be drawn from the facts, it must be consistent with the proven facts, it must flow naturally, reasonably, logically from them. Again, it must appear that the inference of guilt is the only one that can fairly and reasonably be drawn from the facts, and that the evidence excludes beyond a reasonable doubt every reasonable hypothesis of innocence.
    
If there is a reasonable hypothesis from the proven facts consistent with the defendant's innocence, then you must find the defendant not guilty.
    
If the only reasonable inference you find is that the defendant is guilty of a charged crime, and that inference is established beyond a reasonable doubt, then you must find the defendant guilty of that crime.

Source: Approved in Brewster v. New York, (E.D.N.Y., No. 08-CV-4480 (JFB), Jan. 21, 2010).

Failure To Give Limiting Instruction As To Uncharged Misconduct “Almost Surely Guaranteed A Verdict Of Guilt” (Connecticut)

While the uncharged acts will still be unfavorable to the defense even when a limiting instructions is given, the absence of an instruction may in some cases virtually guarantee a guilty verdict.  (See e.g., Gibson v. Comm'r of Corr. [excerpt after the jump].)

Vicarious Liability For Acts Of Accomplice Or Co-Conspirator Should Be Based On Reasonable Foreseeability According To The Facts That Were Known To The Defendant (9th Circuit)

In U.S. v. Green [excerpt after the jump] the instructions permitted the jurors to vicariously convict the defendant (Green) based on what was reasonably foreseeable not only to Green but also to her “co-schemers.”  The Ninth Circuit held that this was error because foreseeability “must be evaluated according to the facts that were known to the defendant.”  This principle should apply to any theory of vicarious liability (e.g., co-conspirator and accomplice liability) which is predicated on the commission of acts which were allegedly foreseeable consequences of the defendant’s acts.

U.S. Supreme Court Holds That The 6th Amendment Right To A Public Trial Applies To Jury Selection

In Presley v. Georgia [excerpt after the jump] the United States Supreme Court held that (1) the 6th Amendment public trial provision applies to jury selection and (2) the judge must sua sponte consider all reasonable alternatives to courtroom closure.  The presence of the public during jury selection may necessitate additional cautionary instructions during jury selection.

Florida Supreme Court Adopts New And Amended Jury Instructions (Florida)

On January 7, 2010 the Florida Supreme Court adopted new instruction 3.3(g), Bifurcated Trial Instruction -- Phase Two, as well as amendments to the following instructions: 3.6(f), Justifiable Use of Deadly Force; 3.6(g), Justifiable Use of Non-deadly Force; 3.6(h), Justifiable Use of Force by Law Enforcement Officer; and 11.14(e), Failure to Register as a Sexual Offender. (See IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES - REPORT NO. 2009-01 [excerpt after the jump].)

Jurors’ Common Knowledge And Experience Cannot Substitute For A Failure Of Proof (District of Columbia)

Although jurors are often instructed to draw evidentiary inferences from their “common knowledge” or “experience” such inferences should not be permitted to fill an evidentiary void.  (See e.g., Foreman v. United States [excerpt after the jump].)

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276.5 - Jury Reliance On Common Sense
276.5.4 - Instruction On Juror's Common Knowledge/Matters Of Common Knowledge And Science
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F 105.1 Inst 2 - Improper To Define Jurors Duties In Terms Of Deciding The Truth Based Only On Their Common Sense And Experience
F 105.1 Inst 3 - Cautionary Instruction Regarding Juror Use Of Common Sense And Experience To Trump Expert Opinion
F 105.1 Inst 4 (a; b) - Juror Reliance On Common Sense Or Experience May Compromise The Reasonable Doubt Standard

Death Penalty: Requiring Jurors To Reject Death Before Considering Life As Violation Of Beck v. Alabama

Justice Stevens’s concurring opinion in Smith v. Spisak [excerpt after the jump] concludes that the acquittal first concept should not be utilized at the sentencing phase of a death penalty trial because it precludes jurors from considering lesser included offenses in violation of Beck v. Alabama (1980) 447 U.S. 625, 637-38 [65 LEd2d 392; 100 SCt 2382].

Death Penalty Instructions Did Not Warrant Federal Habeas Relief Under Mills v. Maryland Where Instruction Did Not Expressly Require Unanimity As To Mitigating Circumstances

In Smith v. Spisak [excerpt after the jump] the sentencing instructions were silent as to whether the jurors must unanimously find a mitigating circumstance before considering it.  The court declined to grant relief under the deferential federal habeas corpus standard.  However, this limited holding should not prevent a challenge to such instructions at trial or on direct appeal.  In particular, trial counsel should consider requesting an instruction which specifically informs the jurors that they do not have to unanimously agree on mitigating circumstances. 

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303.4.7 - Death Penalty: Unanimity Not A Requirement For Consideration Of Mitigating Evidence
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L. Death Penalty - F 760-766

Judge Has Authority And Obligation To Instruct On Lesser Included Offense Even If The Defense Is Alibi (Oklahoma) (California)

In People v. Barton (1995) 12 Cal.4th 186 the California Supreme Court held that the judge must instruct on lesser included offenses even if the defense fails to request or objects to such an instruction.  In Owens v. State [excerpt after the jump] the Oklahoma Appellate Court used a similar rationale in holding that the judge was obligated to instruct on a lesser included offense even in the absence of a request and when the defendant relied on an alibi defense.

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265.3 - Impact of Counsel's Request, Objection Or Silence On Duty To Give Lesser Offense Instruction
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Lesser Included Offenses
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LIO II - Lesser Included Offenses - Duty to Instruct

Sample Instruction: Definition Of Intent (Connecticut)

Intent relates to the condition of mind of the person who commits the act, that is, their purpose in doing it. A person acts intentionally, with respect to a result or conduct, when their conscious objective is to cause that result or to engage in that conduct.

Source: State v. Kowalyshyn, slip opn. p. 8 (Conn. App. Ct., No. AC 29336, 2010).

Is Objection Required If The Judge Denies A Requested Instruction? (Mississippi)

Typically, it is assumed that a jury instruction issue is preserved by submission of a requested instruction which raises the issue. However, unless counsel objects to the denial of the requested instruction the prosecution may argue on appeal that the issue was waived as they did in Glenn v. State [excerpt after the jump]. Thus, even though the waiver argument was rejected in Glenn, it would be a good practice to register an objection just to be sure.

Sample Instruction: Prosecution Must Disprove Self-Defense

Self-defense is a legal defense to which the use of force would otherwise be criminal. This does not mean, however, the defendant must prove the defense of self-defense. The burden of proving guilt beyond a reasonable doubt remains on the state, which means that the state must disprove beyond a reasonable doubt the defense of self-defense.

Source: Adapted from instruction given in State v. Ovechka, slip opn. p. 11 (Conn. App. Ct., No. AC 26077, 2010).

Sample Instruction: Good Faith Negates Willfulness

A good faith misunderstanding of the law or a good faith belief that one is not violating the law negates willfulness.

Source: Given in United States v. Govereh, 2010 U.S. Dist. LEXIS 551, 43-51 (N.D. Ga., No. 1:07-CR-131-JEC,  Jan. 5, 2010) Jan. 5, 2010).

Sample Instruction: Foreperson Has No More Weight Or Authority Than The Other Jurors (Connecticut)

Select a foreperson from among you. He or she has no more weight or authority than the other eleven jurors. He or she is just your spokesperson with the court.

Source: Approved in State v. West, 877 A.2d 787, 814 (Conn. 2005); see also West v. Ricks, 2010 U.S. Dist. LEXIS 1119, 37-38 (D. Conn., No. 3:06-cv-1112 (CFD), Jan. 7, 2010).

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Chapter 277 - Deliberations: Foreperson

Sample Instruction: Act Or Statement Of Co-Conspirator Outside The Presence Of The Defendant Should Be Examined With Special Care (10th Circuit)

Acts or statements, which may have been performed or made outside the presence of a defendant and even done or said without the defendant's knowledge, should be examined with particular care by the jury before considering them against a defendant who did not do the particular act or make the particular statement.

Source: Approved in United States v. Wardell, (10th Cir. Colo., No. 06-1108, Jan. 7, 2010)

Maryland High Court Calls For Review Of Pattern Instruction On Eyewitness Identification (Maryland)

In Bomas v. State [excerpt after the jump] the state’s highest court (the Court of Appeals) discussed the latest scientific studies regarding eyewitness identification and concluded:

". . . [J]urisdictions have trended toward the admissibility of expert testimony on eyewitness reliability and we recognize that scientific advances since Bloodsworth [Bloodsworth v. State, 307 Md. 164, 512 A.2d 1056 (1986)] may assist juries in evaluating eyewitness testimony.  We appreciate that scientific advances have revealed (and may continue to reveal) a novel or greater understanding of the mechanics of memory that may not be intuitive to a layperson. Thus, it is time to make clear that trial courts should recognize these scientific advances in exercising their discretion whether to admit such expert testimony in a particular case."

Nevertheless, the Court declined to establish a presumptive standard in favoring admissibility of expert eyewitness testimony:

Whether the prosecution's case rests solely on eyewitness identification or not, the probative value of expert testimony on eyewitness identification and how much such testimony can actually help the jury in the case before it must be carefully weighed by the court on a case-by-case basis.

In terms of jury instruction the High Court called for a re-evaluation and possible modification of Maryland’s Pattern eyewitness instruction.

In so doing the Court recognized that jury instructions are a “means to educate juries about the vagaries of eyewitness testimonies and safeguard against wrongful convictions based on misidentifications.”

The re-evaluation of the Maryland instruction (MPJI-CR 3:30) should be interesting since that instruction does not now accurately educate the jurors regarding non-intuitive factors such as the lack of correlation between witness certainty and the accuracy of the identification.

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Chapter 31 - Identification: Eyewitness (Mistaken Identity)
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Evidence: Eyewitness Identification
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F 2.92 - Eyewitness Factors

Breaking News: A Criminal Trial Does Not Determine The “Guilt Or Innocence” Of The Defendant (Idaho)

State v. Molen [excerpt after the jump] purported to describe the fundamental instructional duties of the trial judge in terms of the rules of law that are “material to a determination of the defendant’s guilt or innocence.” While the “guilt or innocence” formulation was obviously just a slip of the tongue, it aptly illustrates how even learned appellate justices may lapse into the intuitive – yet unconstitutional – view that criminal trials are about guilt and innocence.  This reinforces the need to educate lay jurors about the difference between a verdict of not guilty and a finding of innocence.

Anti-Faretta Instruction Disapproved

The whole point of Faretta v. California (1975) 422 US 806 [95 SCt 2525; 45 LEd2d 562] is that the defendant has the absolute right to personally present his case directly to the jury.  Any instruction which undermines this right is unconstitutional.  (See e.g., People v. Bergerud, (Colo., No. 08SC936, Jan. 11, 2010) [The right to testify would be empty indeed were it permissible for the defendant's lawyer to instruct the jury to ignore everything the defendant says. To allow such would be to strip the defense of the "personal character upon which the [Constitution] insists." Faretta, 422 U.S. at 820.].)