Sample Cautionary Instruction: Gang Membership (New Jersey)

During the course of the trial, there has been some evidence introduced that the Defendants were a member of a gang. The 18th Street Gang that I heard described. Normally this type of evidence is not permitted under our rules. Our rules particularly exclude this type of material, when it's merely offered to show that a Defendant had a disposition or the tendency to do wrong and therefore must be guilty of the crime charged in the indictment.
   
Before you can give any weight to this type of evidence, you must be satisfied first that the Defendant is a member of a gang. If you're not so satisfied, then don't consider it for any purpose. However, our rules  do permit evidence when the evidence is used for a certain, specific, narrow purpose. In this case the evidence was introduced to explain motive or intention. Whether the evidence does, in fact, demonstrate motive, intention, that's for you to decide. You may decide the evidence does not demonstrate motive and intent, and therefore doesn't help you at all. In that case, disregard it.

On the other hand, you may decide that the evidence does demonstrate motive or intent. If so, then use it for that specific purpose. However, you may not use the evidence to decide that the Defendant has a tendency to commit crimes, or that he's a bad person merely because he's a member of the 18th Street Gang.
 
That is, you may not decide that just because he is a member of a gang, he therefore must be guilty of the present crime. I admitted the evidence to help you decide the specific questions of motive and intent. You may not consider it for any other purpose, and may not find the Defendant guilty now simply because of the evidence shown that he was a member of a gang.

Source: Given in State v. Vasquez, 2010 N.J. Super. Unpub. LEXIS 393, 10-11 (App.Div., No. A-5413-07T4 Feb. 26, 2010) [NOTICE: This opinion is UNPUBLISHED.]

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26.5.3.4 - Instruction Limiting Use Of Gang Evidence
Chapter 85: Criminal Street Gangs
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F 6.50 - Gangs
SERIES 1400 - CRIMINAL STREET GANGS

Duty To Instruct On Elements Of Lesser Included Offense (Mississippi)

In Robinson v. State, (Miss. Ct. App., No. 2008-KA-00437-COA, Feb. 23, 2010) the reviewing court noted on its ownR motion that the judge provided the jury with an instruction to consider the lesser-included misdemeanor offense of trespass, but the jury instruction lacked any explanation regarding the elements of the misdemeanor crime of trespass. Significantly, the only difference in Mississippi’s elements of trespass and burglary of a building is the defendant's intent to steal. However, one crime is a felony, and the other is a misdemeanor. “Without instruction as to the elements of trespass, the jury lacked the ability to properly consider the lesser-included instruction regarding trespass. [Citation.]”

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Chapter 265: Lesser Included Offenses: General Principles
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Judge’s Submission Of Alternative Offenses
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LIO II - Duty to Instruct

Duplicity/Juror Unanimity: Alternate Means And Sufficiency Of The Evidence (Kansas)

Typically courts do not require juror unanimity as to alternative means of violating a single statute. For example, in Kansas “[t]here must be jury unanimity as to guilt for the single crime charged, but not as to the particular means by which the crime was committed." See State v. Stevens, 285 Kan. 307, 314, 172 P.3d 570 (2007).

However, courts are not in agreement as to the effect of a general verdict when one of the alternative means is not supported by substantial evidence. For example, one Kansas decision, State v. Timley, 255 Kan. 286, 875 P.2d 242 (1994) concluded that a general verdict as to alternative means requires the reviewing court to “determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt. [Citations omitted.]'" Timley, 255 Kan. at 289.

However, other Kansas cases adopted the view taken by the United States Supreme Court in Griffin v. United States, 502 U.S. 46, 59-60, 116 L. Ed. 2d 371, 112 S. Ct. 466 (1991):

“Jurors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law--whether, for example, the action in question is protected by the Constitution, is time barred, or fails to come within the statutory definition of the crime. When, therefore, jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error. Quite the opposite is true, however, when they have been left the option of relying upon a factually inadequate theory, since jurors are well equipped to analyze the evidence [citation omitted]. . . .”

“[I]f the evidence is insufficient to support an alternative legal theory of liability, it would generally be preferable for the court to give an instruction removing that theory from the jury's consideration. The refusal to do so, however, does not provide an independent basis for reversing an otherwise valid conviction.” [Citations and quotation marks omitted.] State v. Grissom, 251 Kan. 851, 892, 840 P.2d 1142 (1992); see also State v. Dixon, 279 Kan. 563, 604-06, 112 P.3d 883 (2005).

State v. Wright, 224 P.3d 1159, 1163-1167 (Kan., No. 97,013, 2010) resolved the conflict in favor of the Timley approach. “The Timley super-sufficiency condition evolved for a good reason. It evolved because we recognized that we were allowing uncertainty as to how the State persuaded each juror. We were comfortable with this uncertainty--at that particular level of generality in the jury's factfinding--only because we insisted on assurance that each juror's vote was supported by a means for which there was sufficient evidence. Without that assurance, we are back to where we were before Timley. We have no guarantee that the jury was unanimous at the level of factual generality that matters most of all: guilt v. innocence. [Beier, Lurching Toward the Light: Alternative Means and Multiple Acts Law in Kansas, 44 Washburn L. J. 275, 299.]

“We are now persuaded that the Timley alternative means rule is the only choice to ensure a criminal defendant's statutory entitlement to jury unanimity. Any contrary language in Dixon is specifically disapproved.” (224 P.2d at 1166-67.)

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Chapter 273: Jury Unanimity As To The Act Or Offense Committed (Duplicity)
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F 4.71.5 - Juror Unanimity
F 17.01 - Juror Unanimity
F 3500.1 - Unanimity: Duty To Instruct

Judge’s Duty To Instruct On All Material Issues (Michigan)

A trial court is required to clearly present a case and instruct the jury on the applicable law. People v Katt, 248 Mich App 282, 310; 639 NW2d 815 (2001), aff'd 468 Mich 272 (2003). Accordingly, "[j]ury instructions must include all the elements of the charged offense and not exclude material issues, defenses, and theories if the evidence supports them." People v Canales, 243 Mich App 571, 574; 624 NW2d 439 (2000).

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Chapter 3: Duty Of Court Regarding Instructions
3.2 - Duty Of Court To Act On It's Own Motion (Sua Sponte Duties)
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PG V(A) - Sua Sponte Duties

Affirmance Of Trial Judge's Fear-Based "Send-A-Message" Jury Instructions (Mississippi)

In response to a finding of waiver in the majority opinion, the dissenting opinion of Justice Carlton argued that the trial judge’s preliminary instructions undermined the defendant’s right to a fair trial:  “The dissent will not recite the comments in their entirety; rather, I only note the impact of the further comments on the burden of proof and the applicable law in the case. In doing so, the record reflects that the trial judge's comments advised the jury that a decision had to be made; otherwise, ‘you're not going home safely when you leave this courthouse.’ Further, the judge opined that the jury could never be free from fear if they failed  to "ante up their responsibility.”  As the dissent observed, the Mississippi Supreme Court has warned against fear arguments by prosecutors as paths to conviction. Brown v. State, 986 So. 2d 270, 275 (PP11-12) (Miss. 2008) [warning prosecutors not to use "send-a-message" arguments and holding that in some circumstances, such arguments alone constitute reversible error].   Accordingly, Justice Carlton concluded as follows: “[T]he trial judge's comments affected Lindsey's constitutional right to a fair trial, I would reverse Lindsey's conviction  and sentence and remand this case for a new trial.”

Judge’s Allowed “Considerable Latitude” As To Jury Instruction Language (Minnesota)

Trial judges are allowed "considerable latitude" in the selection of language for jury instructions. State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002).

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5.1 - Making Jury Instructions Understandable
5.2 - Jury Instruction Language: Miscellaneous Principles
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PG II - Jury Instruction Language
PG II(I) - Making Jury Instructions Understandable
PG II(H) - Strategy For Dealing with Jury Instruction Language

Limiting Instruction Must Be Requested Even If Counsel Objected To The Evidence (Mississippi)

Smith v. State, 656 So. 2d 95 (Miss. 1995) held that the trial court has a sua sponte duty to give a limiting instruction after defense counsel objects to character evidence being admitted. However, Smith was overruled by Brown v. State, 890 So. 2d 901 (Miss. 2004). In Brown, the Mississippi supreme court stated: “The burden should properly be upon the trial counsel to request a limiting instruction.”  Brown at 913 (P36); see also Lindsey v. State, 29 So. 3d 121, P67 (Miss. Ct. App., No. 2008-KA-01717-COA,  2010).

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4.3.2 - Cautionary And Limiting Instructions: Requests And Objections
26.1 - Limited Purpose Evidence: General Rules
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F 303 - Limited Purpose Evidence In General
PG VI(C)(1.1) - A Cautionary Or Limiting Instruction Should Not Be Given Over A Tactical Objection By The Party Benefits From The Instruction

Kansas Court Holds That Absence Of Defendant During Judge’s Response To A Jury Inquiry Was Reversible Error (Kansas)

State v. Bonnett, 225 P.3d 780 (Kan. Ct. App., No. 98,719, 2010) [NOTICE: This opinion is UNPUBLISHED] concluded that because the defendant was neither present nor voluntarily absent when the judge responded to a jury inquiry, the defendant’s constitutional and statutory right to be present at every critical stage in the trial was violated. Specifically, he points out that our Supreme Court has held the Confrontation Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment require the defendant's presence at every critical stage of a trial, including a conference between a trial judge and a jury. See State v. McGinnes, 266 Kan. 121, 127, 967 P.2d 763 (1998).

McGinnes outlined several factors to be considered in determining whether an ex parte communication with jurors may be declared harmless beyond a reasonable doubt: (1) the overall strength of the prosecution's case, (2) whether an objection was lodged, (3) whether the ex parte communication concerned a critical aspect of the trial or involved innocuous and insignificant matter and the manner in which the ex parte communication was conveyed, and (4) the ability of the post-trial remedy to mitigate the constitutional error. McGinnes, 266 Kan. at 132.

The Bonnett court concluded that reversal should be ordered because (1) the jury’s request for readback of testimony and purported deadlock; (2) the failure of the record to establish that the defendant knew about the proceeding, and (3) the failure of defense counsel to request a mistrial based on the judge’s ex parte communication with the jury as a basis for a mistrial.  “It is significant that the jury indicated it was deadlocked after it had already asked for and received a readback of key testimony. We simply will not speculate as to how defense counsel or the defendant might have responded had the defendant and his counsel been present and received proper notification of the jury's communication. At a minimum, considering the nature of the jury's deliberations up to that point, Bonnett might have sought a mistrial.
. . .

Under the circumstance of this case, we conclude that the trial court's communication with the deadlocked jury without the defendant's presence or participation violated the defendant's constitutional right to be present at all critical stages of the trial. Further, we cannot say this error was harmless beyond a reasonable doubt. Therefore, we reverse the defendant's conviction and remand to the district court for a new trial.”  State v. Bonnett, 225 P.3d 780, 18-19.

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2.6 - Presence Of Defendant Re: Instructions
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18.2 - Absence Of Defendant
Chapter 283: Communication With Jury
284.1 - Procedural Issues
300.15 - Constitutional Claims: Presence Of Defendant At Trial
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PG V(N) - Presence of Defendant
PG IX(D) - Response to Jury Inquiry
PG IX(G)(1) - Presence Of Defendant At Readback

Instruction On Defendant’s Competency To Testify Held Properly Rejected (Mississippi)

In Field v. State, 28 So. 3d 697, 702 (Miss. Ct. App., No. 2008-KA-00793-COA, 2010) the defense requested the following instruction:

The Court instructs the jury that the Defendant is a competent witness in his own behalf and his testimony should not be disregarded simply because he is the Defendant. The Defendant is clothed with the same mantel of credibility as all other witnesses that have testified before you and in considering your verdict, you are to give his testimony the same weight and credibility you would any  other witness in the light of the evidence.

The reviewing court upheld the judge’s refusal of this instruction because there was no sound reason for a trial court to instruct a jury that  any witness, including the defendant, is a competent witness.

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18.6 - Demeanor And In-Court Behavior Of Nondisruptive Defendant
257.6 - Incompetence To Stand Trial
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Jury Must Consider Defendant’s Mental Condition At The Time Of The Offense  And Not Current Condition

Invited Error (Kansas)

A party may not champion the use of an instruction and then object to it on appeal. State v. Kirtdoll, 281 Kan. 1138, 1150, 136 P.3d 417 (2006).

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295.3.3 - Overcoming Invited Error
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PG VI(A)(2) - Invited Error: General Principles
PG VI(A)(5) - Invited Error: Inapplicable Where Requested Instruction Has Been Changed
PG VI(C)(1) - Duty To Request Instructions: General Rules

Judge’s Duty To Correct Faulty Instruction Requests (Maryland)

In Abbott v. State, 190 Md. App. 595, 630-648 (Md. Ct. Spec. App., No. 1900, 2010), the defendant was charged with making an e-mail communication that constituted a “threat.”  The defendant contended that free speech principles protected the communication and thus it was not a “true threat.”  However, the defense-requested instructions on this issue were deficient because they “were either incomplete quotations of constitutional provisions that had no application to this case; deficient because they did not include any guidance to the jury as to how to apply the provisions in the context of the evidence; or they were legally incorrect. Moreover, to the extent that the provisions had any bearing on the case, the court, in its discretion, was not required to inform the jury of the source of appellant's rights.”

Nonetheless, the deficiency of the instructions did not relieve the judge of the duty to correctly instruct the jurors on the definition of a true threat: “We find no support for the suggestion that the court need not give an instruction merely because it is poorly or inadequately worded.” Abbott v. State, 190 Md. App. at 640.  Instead of simply refusing to instruct on the issue the judge was obligated to instruct on the definition of a true threat: “We conclude that the court erred because it did not define the term "threat" or instruct the jury about how it was to determine whether the e-mail communication constituted a threat. In this regard, the court should have instructed the jury as to the requirement of a true threat, which is distinguished from constitutionally protected speech. Accordingly, we shall vacate appellant's conviction and remand for a new trial.”

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1.3.9 - Approval Of Standard Instructions By State Supreme Court Does Not Relieve Judge Of Duty To Instruct Correctly
3.2 - Duty Of Court To Act On It's Own Motion (Sua Sponte Duties)
3.3.3.1 - Duty To Correct When Requested Instruction Is Incomplete Or Incorrect
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PG V(C) - Correction Of Defects

Necessity As Defense To Possession Of A Firearm By Ex Felon (Mississippi)

In Mississippi "self-defense is not a viable defense to possession of a firearm by a convicted felon. Possession of a firearm by a convicted felon is a criminal act void of a third party to defend against." Williams v. State, 953 So. 2d 260, 263 (P8) (Miss. Ct. App. 2006). However, "necessity is a valid defense to possession of a firearm by a convicted felon." Id. at (P9). "In order to be entitled to a defense of necessity, the defendant must prove the following: (1) the act charged was done to prevent a significant evil[;] (2) there was no adequate alternative[;] and (3) the harm caused was not disproportionate to the harm avoided." Id. at 263-64 (P9); see also Mayers v. State, (Miss. Ct. App., No. 2008-KA-01722-COA, Feb. 23, 2010).

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107.3 - Ex-felon In Possession Of Firearm: Defenses And Defense Theories
254.2.14 - Ex-felon In Possession Of Firearm: Necessity As Defense
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F 12.43 n10 - Ex-felon With Firearm:  Necessity As Defense

Sample Instruction: Defendant Not Required To Offer Any Evidence (Illinois)

As I have previously instructed you, the defendant in this or any criminal case is presumed innocent of the charges against him. Before a defendant in this case or in any American case can be convicted the State must prove beyond a reasonable doubt that he is guilty of the crime or crimes that he is charged with. The defendant is not required to offer any evidence at all on his own behalf. You may not infer anything negative or hold it against him if the defendant elects not to testify. He has a right to testify on his own behalf. He also has a right to not testify on his own behalf.

Source: Given in People v. Schaefer, 924 N.E.2d 1176, 1179 (Ill. App. Ct. 2d Dist., Nos. 2-08-0218 & 2-08-0219 cons, 2010).

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270.2 - Presumption Of Innocence - Prosecution Burden To Prove Guilt
270.2.3 - Duty To Presume Defendant Innocent: Defendant Not Required To Testify Or Produce Any Evidence

Erroneous Use Of And/Or In Jury Instructions (Florida)

Use of the phrase “and/ot” in criminal jury instructions may constitute “fundamental error” if the jurors are not required to find every element of the charge beyond a reasonable doubt as to each codefendant. (See Garzon v. State, 980 So. 2d 1038 (Fla. 2008).)

Bryant v. State, 30 So. 3d 591, 592-595 (Fla. Dist. Ct. App. 2d Dist., No. 2D07-3392, 2010) considered whether use of the “an/or” conjunction between the names of the victims was also fundamental error. After discussing factual situations where such an error could be prejudicial Bryant held that the error was not fundamental under the circumstances of that case.

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Chapter 5: Jury Instruction Language
Chapter 6: Strategies For Challenging Instruction Language That Unfairly Favors The Prosecution Or Misleads The Jury
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PG II - Jury Instruction Language

Aiding And Abetting: “Natural And Probable Consequences” Is A Negligence Standard Which Should Not Be Used For Crimes Requiring Specific Intent (District of Columbia)

The District of Columbia has rejected the use of the "natural and probable consequence" language in the aiding and abetting instruction for premeditated murder and other so-called "specific intent crimes." Wilson-Bey v. United States, 903 A.2d 818, 834, 837 (D.C. 2006).  Because the “natural and probable consequence” language in the standard aiding and abetting instruction was tantamount to a negligence standard, the Wilson-Bey court adopted the doctrine that "in order for a person to be held accountable for the specific intent of another under an aiding and abetting theory of principal liability, the aider or abettor must have knowingly aided the other person with the intent that the other person commit the charged crime." Ibid. (internal quotation marks and citation omitted). (Compare Little v. United States, 989 A.2d 1096, 1102-1104 (D.C., No. 06-CF-140, 2010) [erroneous instructions did not affect the defendant’s substantial rights].)

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Chapter 64: Accomplice Liability (Aiding And Abetting, Accessory Before The Fact, Etc.)
Chapter 65: Natural And Probable Consequences
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Aiding And Abetting
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F 3.01 - Aiding and Abetting
F 3.02 - Aider and Abettor Liability
Calcrim 400 - Aiding And Abetting, Inchoate, And Accessorial Crimes
F 402.5 - Natural and Probable Consequences—Elements

Instruction To Disregard Evidence Not Sufficient When Evidence Was False (Arkansas)

In Williams v. State, 2010 Ark. 89, 3-7 (Ark., No. CR09-355, 2010) a witness testified that Williams had previously been convicted of terroristic threatening for an incident involving her mother, the murder victim. Even though there was no proof that Williams had been convicted of terroristic threatening, or that the nolle prossed charges for terroristic threatening involved an incident with the victim, the State received the benefit of the prejudicial testimony because the judge refused to instruct the jury that there had been no conviction, instead instructing the jury to disregard the testimony that Williams had been convicted of terroristic threatening. That instruction did not cure the prejudice.

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4.3.2 - Cautionary And Limiting Instructions: Requests And Objections
26.1 - Limited Purpose Evidence: General Rules
26.5.3 - Uncharged Acts: Limiting Instructions
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PG VI(C)(1.1) - A Cautionary Or Limiting Instruction Should Not Be Given Over A Tactical Objection By The Party Benefits From The Instruction
PG X(E)(19)(1) - Inability Of Limiting Instructions To Cure Error