Invited Error Not Applicable Unless The Erroneous Instruction Was Requested By The Defendant (8th Circuit)

In United States v. Wisecarver, 598 F.3d 982, 985-990 (8th Cir. S.D., No. 09-1954, March 22, 2010) the prosecution argued that an appellate instructional claim should not be considered under the “invited error” doctrine because defense counsel failed to object to the allegedly erroneous instruction at trial.  However, the Eight Circuit rejected the prosecution’s invited error argument because “Wisecarver did not propose the jury instruction. . . .”  598 F.3rd at 988. [The reviewing court did, however, conclude that the failure to object required plain error review.]

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265.3.7 - Lesser Included Offense: Objection As Invited Error
295.3.3 - Overcoming Invited Error
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PG VI(A) - Cognizability On Appeal Of Instructional Error: Failure To Object
PG VI(A)(2) - Invited Error: General Principles
PG VI(A)(3) - Invited Error: Joining D.A.’s Request For Instruction
PG VI(A)(5) - Invited Error: Inapplicable Where Requested Instruction Has Been Changed
PG VI(A)(7) - Invited Error As To Lesser Included Offenses
PG VI(A)(9) - Invited Error/Estoppel: Applicability To Prosecution
PG VI(C) - Duty To Request Instructions

Sample Instruction: Use Of Charts As Pedagogical Devices (5th Circuit)

Certain charts and summaries have been shown to you solely to help explain the facts disclosed by the books, records and other documents which are in evidence in the case. These charts and summaries are not proof of any facts. You should determine the facts from the evidence.

Source: Given and approved in United States v. Palazzo, (5th Cir. La., No. 09-30039, Mar. 23, 2010) [NOTICE: This opinion is UNPUBLISHED.]

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25.3 - Charts, Summaries, Etc.
276.3.6 - Jury's Request For Visual Aid Chart, Etc. Used During Argument Or Testimony But Not Admitted Into Evidence
276.3.7 - Jury Use Of Materials Not Received In Evidence But Which May Be Helpful In Managing The Evidence
The Shellow Instructions
Demonstrative And Illustrative Exhibits
Trial Procedure – Summaries
Forecite California™
F 104.1 Inst 4 (a & b) - Cautionary Instruction Regarding Charts, Graphs, Summaries, Etc.

Constructive Amendment: Standard Of Review (5th Circuit)

A constructive amendment occurs when the trial court "through its instructions and facts it permits in evidence, allows proof of an essential element of the crime on an alternative basis provided by the statute but not charged in the indictment." United States v. Phillips, 477 F.3d 215, 222 (5th Cir. 2007) (quotation omitted). In evaluating whether a constructive amendment has occurred, reviewing courts in the 5th Circuit consider "whether the jury instruction, taken as a whole, is a correct statement of the law and whether it clearly instructs jurors as to the principles of the law applicable to the factual issues confronting them. "United States v. Guidry, 406 F.3d 314, 321 (5th Cir. 2005) (quotation omitted).  The appellate court must "scrutinize any difference between an indictment and a jury instruction" and "will reverse only if that difference allows the defendant to be convicted of a separate crime from the one for which he was indicted." United States v. Nunez, 180 F.3d 227, 231 (5th Cir. 1999). Otherwise, a defendant must "show how the variance in the language between the jury charge and the indictment so severely prejudiced his defense that it requires reversal under harmless error review." Id.

United States v. Scher, 601 F.3d 408, 411-412 (5th Cir. Tex., No. 08-20269, March 23, 2010) applied those standards in holding that a single reference to an alternative theory in the instructions was not a constructive amendment.

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3.2.1 - Province Of The Court To Interpret Statute And Apply It To The Facts
300.2.4 - Due Process/Notice: Variance Between Information And Proof At Trial
300.2.5 - Due Process/Notice: Variance Between Indictment/Information And Proof At Trial -- Standard Of Prejudice

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PG VII(C)(11) - Instruction On Uncharged Theory Violates Due Process And Right to Effective Assistance of Counsel: Preliminary Hearing Is Touchstone Of Due Process
PG VII(C)(11.1) - Due Process Notice: Variance Between Information And Proof At Trial

Constructive Possession: Presence Alone Not Sufficient (6th Circuit)

"Possession may be either actual or constructive and it need not be exclusive but may be joint." United States v. Craven, 478 F.2d 1329, 1333 (6th Cir. 1973). "Actual possession requires that the defendant have immediate possession or control" over the firearm or ammunition. United States v. Grubbs, 506 F.3d 434, 439 (6th Cir. 2007) (citation and internal quotation marks omitted). "[C]onstructive possession exists when a person does not have actual possession but instead knowingly has the power and the intention at a given time to exercise dominion and control over an object, either directly or through others." United States v. Gardner, 488 F.3d 700, 713 (6th Cir. 2007) (citation and internal quotation marks omitted). "Presence alone near a gun . . . does not show the requisite knowledge, power, or intention to exercise control over the gun to prove constructive possession." United States v. Arnold, 486 F.3d 177, 183 (6th Cir. 2007) (en banc) (citation and internal quotation marks omitted). "Other incriminating evidence must supplement a defendant's proximity to a firearm in order to tip the scale in favor of constructive possession." United States v. Campbell, 549 F.3d 364, 374 (6th Cir. 2008). "Consequently, evidence of some other factor – including connection with a gun, proof of motive, . . . or a statement indicating involvement in an enterprise – coupled with proximity may suffice." Id. (citation and internal quotation marks omitted).

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56.2.12 - Possession: Mere Presence Or Knowledge Not Sufficient
The Shellow Instructions
Mere Presence Of Controlled Substance Is Not Possession
Mere Proximity Or Accessibility To Controlled Substance Is Not Possession
Forecite California™
F 1.24g - Mere Presence Not Sufficient For Possession
F 1.24h - Mere Presence Not Sufficient For Possession
F 3306 Inst 3 - Mere Presence Not Sufficient For Possession
F 3306 Inst 4 - Mere Presence In Vehicle Not Sufficient For Possession

Sixth Circuit Discusses Need To Precisely Tailor Instructions To The Facts (6th Circuit)

In United States v. Douglas, 371 Fed. Appx. 562, 567 (6th Cir. Ohio, No. 08-4247, March 25, 2010) [[UNPUBLISHED] but citable per 6 Cir. R. 28(g)] the defendant, who was charged with possession of a firearm, argued that the judge improperly instructed the jury on both actual and constructive possession.  The Sixth Circuit rejected the claim that there was insufficient evidence to support the constructive possession theory.  However, the opinion did note that “the jury instructions on possession were imperfect in that they could have been more precisely tailored to the facts. . . .”

Furthermore, the Douglas court cautioned against the use of “boilerplate instructions” which are “insufficiently tailored to the facts and theories of the specific case being tried.”  Ibid., citing from United States v. Wolak, 923 F.2d 1193, 1198 (6th Cir. 1991) [admonishing the district court for giving instructions on joint and constructive possession where only actual possession was at issue in the case]; see also Sixth Circuit Criminal Pattern Jury Instructions Use Note to § 2.10A ("Actual Possession") ["This instruction should be given if the government's only theory of possession is actual possession."].

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3.2.10 - Duty To Relate The Law To The Facts
Forecite California™
PG XI(B) - Propriety Of Modified Or Tailored CALCRIM Instructions
F 820.2 Inst 1 - Tailoring To Facts: Name Of Alleged Victim
FORECITE CG 3.7 - [Failure To Tailor Elements To The Facts And Charge]

Sample Instruction: No Unfavorable Inference From Refusal Of Witness To Speak With Counsel

You have heard testimony that attorney ________ asked to speak to them prior to their testimony. I instruct you that ________ had a right to attempt to interview these witnesses before they took the stand. However, I also instruct you that these witnesses had a right to decline to speak to him. And no unfavorable inference should be drawn against them because of that declination.

Source: Adapted from instruction given and approved in United States v. Sabhnani, 599 F.3d 215, 245-46 (2d Cir. N.Y., No. 08-3720-cr(L), 08-3731-cr(CON), March 25, 2010).

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16.13.2 - Cautionary Instruction Regarding Duty Of Counsel To Interview Witnesses In Advance Of Trial
The Shellow Instructions
Refusal To Speak To Defense Counsel As Witness Bias

Importation Of Controlled Substance: Failure Of Instructions To Specify Substance Improperly Permits Conviction On Erroneous Theory (2nd Circuit)

See United States v. Hassan, 578 F.3d 108, 129-34 (2d Cir. 2008) [instructions that failed to explain to jury that defendant needed to have intent to import a particular controlled substance and that other substances referenced in the evidence were not controlled substances left open possibility for jury to convict on importation of other substances that were not illegal].

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88.1.1 - Drugs, Controlled Substances: Defense Theory That Identity Of Controlled Substance Was Not Proven
88.4.3.6 - Possession Of Drugs, Controlled Substances: No Conviction When Unclear Which Substance Was Possessed
The Shellow Instructions
Drugs, Controlled Substances: Substance Testing/Identification Instructions

Sample Instruction: Aider And Abettor/Accomplice Liability – Mere Presence Or Acquiescence (2nd Circuit)

The mere presence of a defendant where a crime is being committed, even coupled with knowledge by the defendant that a crime is being committed, or the mere acquiescence by a defendant in the criminal conduct of others, even with guilty knowledge, is not sufficient to establish aiding and abetting.
Source: Given and approved in United States v. Sabhnani, 599 F.3d 215, 239 (2d Cir. N.Y., No. 08-3720-cr(L), 08-3731-cr(CON), March 25, 2010).

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64.2 - Accomplice Liability: Mere Presence Insufficient
The Shellow Instructions
Accomplice: Presence And Knowledge Not Sufficient
Forecite California™
F 3.01f  - No Legal Duty To Report Crime
F 3.01h - “Standing By” During The Offense Is Not Aiding and Abetting
F 3.01i - Mere Presence Which Assists Commission Of The Crime Is Not Aiding And Abetting
F 3.01l - Jury Required To Find More Than Mere Presence
F 401.6 Inst 10 - No Legal Duty To Report Crime
F 401.6 Inst 12 (a-d) - Presence And Knowledge Insufficient For Aiding And Abetting Liability
F 401 Note 8 - Mere Presence: Argument Strategy

Sample Instruction: Aider And Abettor/Accomplice Liability – Must Act To Make The Crime Succeed (2nd Circuit)

You must ask yourself three questions to determine whether the defendant aided or abetted the commission of a crime:


Did the defendant participate in the crime charged as something she or he wished to bring about?


Did the defendant associate herself or himself with the criminal venture knowingly and willfully?


Did the defendant seek by her or his actions to make the criminal venture succeed?


If the government proved beyond a reasonable doubt that the defendant did these things, then the defendant is an aider and abettor and therefore guilty of the offense. But "if on the other hand your answers to any one of these series of questions is no then the defendant is not an aider and abettor and you must find him or her not guilty as to aiding and abetting.

Source: Given and approved in United States v. Sabhnani, 599 F.3d 215, 239 (2d Cir. N.Y., No. 08-3720-cr(L), 08-3731-cr(CON), March 25, 2010).

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64.1.2 - Accomplice Liability: Requirement Of Intent To Facilitate The Crime
64.4 - Accomplice Liability: Knowledge, Intent And Act Must Precede The Crime
The Shellow Instructions
Accomplice Liability: Acts Must Be Committed Before Or During The Offense
Accomplice Liability: Accomplice Must Have A Stake In The Venture
Forecite California™
F 3.01j - Aiding And Abetting: Clarification Of Actus Reus and Mens Rea
F 3.01q - Aiding And Abetting Requires Substantial Participation
F 3.01t - Giving Assistance Without Sharing The Perpetrator’s Purpose And Intent Establishes Liability Only As An Accessory, Not As An Accomplice
F 401.5 Inst 7 - Aider And Abettor Must Separately Form Intent Or Mental State Elements Of Charged Offense

Standard Of Prejudice: When The Judge Gives Both Correct And Incorrect Instructions (2nd Circuit)

It is not uncommon for a reviewing court to hold an instructional error harmless based on a review of the instructions as a whole. See e.g., Brown v. Greene, 577 F.3d 107, 111-12 (2d Cir. 2009) [collecting cases upholding jury charges containing language that might have created some confusion about the burden of proof, because the charges as a whole made clear that the cases were governed by the "beyond a reasonable doubt" standard]; United States v. Locascio, 6 F.3d 924, 941 (2d Cir. 1993) [ambiguous summary of element did not warrant reversal where earlier discussion of element was clear]. For example, United States v. Elfgeeh, 515 F.3d 100, 134-35 (2d Cir. 2008) found it "highly unlikely" that the jury relied on an erroneous sentence that was immediately preceded and followed by correct statements of the charge. See also United States v. Sabhnani, 599 F.3d 215, 239 (2d Cir. N.Y., No. 08-3720-cr(L), 08-3731-cr(CON), March 25, 2010).

On the other hand, this reasoning should lead to reversal when the correct instruction is preceded and followed by incorrect instructions.

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3.3.3.1 - Duty To Correct When Requested Instruction Is Incomplete Or Incorrect
297.2.10 - Prejudice On Appeal: Correct Preliminary Instruction Does Not Cure Error
297.2.11 - Prejudice On Appeal: Correct Oral Instruction Does Not Cure Erroneous Or Incomplete Written Instruction
297.2.12 - Prejudice On Appeal: Correct Supplemental Instruction Does Not Cure Error In Original Instructions
297.2.13 - Prejudice On Appeal: Erroneous Instruction Cannot Be Cured By A Correct One
Forecite California™
PG X(E)(9) - Correct Oral Instruction Does Not Cure Erroneous Or Incomplete Written Instruction
PG X(E)(10) - Correct Supplemental Instruction Does Not Cure Error
PG X(E)(12)(a) - Verdict After Jury Hears Erroneous Instruction

When Does Aiding And Abetting/Accomplice Liability Apply To A Failure To Act? (2nd Circuit)

“It is a long-established principle that criminal law generally regulates action, rather than omission, and that for criminal liability to be based upon a failure to act it must first be found that there is a duty to act -- a legal duty and not simply a moral duty. [Citation.] This general principle, that omissions may serve as the basis of criminal liability only if there is an affirmative duty to act, is equally applicable when the crime charged is aiding and abetting. See United States v. Sabhnani, 599 F.3d 215, 237 (2d Cir. N.Y., No. 08-3720-cr(L), 08-3731-cr(CON), March 25, 2010); see also United States v. Labat, 905 F.2d 18, 23 (2d Cir. 1990) ["To convict a defendant on a theory of aiding and abetting, the government must prove that the underlying crime was committed by a person other than the defendant and that the defendant acted, or failed to act in a way that the law required him to act, with the specific purpose of bringing about the underlying crime."].  Such a legal duty to act can arise from a statute specifically creating the duty -- the duty to file one's tax returns, for instance, see 26 U.S.C. § 7203 -- or by extrapolation from a different statute, the common law, or contract. 1 LaFave, Substantive Criminal Law § 6.2.

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Chapter 44: Criminal Omission
Chapter 64: Accomplice Liability (Aiding And Abetting, Accessory Before The Fact, Etc.)
The Shellow Instructions
Accomplices
Forecite California™
F 3.01 - Aiding and Abetting
F 3.02 - Aider and Abettor Liability
F 240 Inst 2 - Causation: Applies To Act Or Omission
Series 400 - Aiding and Abetting, Inchoate, and Accessorial Crimes

Written Instructions Trump Oral Instructions (California)

In People v. Mills, 48 Cal. 4th 158, 200-201 (Cal., No. S059653, March 1, 2010) the judge misread several instructions when orally instructing the jurors.  The California Supreme Court extended the presumption that the jurors understand and follow the instructions to presume that the jurors read and followed the written instructions and not the judge’s oral recitation:

The risk of a discrepancy between the orally delivered and the written instructions exists in every trial, and verdicts are not undermined by the mere fact the trial court misspoke. “We of course presume ‘that jurors understand and follow the court’s instructions.’ [Citation.] This presumption includes the  written instructions. [Citation.] To the extent a discrepancy exists between the written and oral versions of jury instructions, the written instructions provided to the jury will control.” (People v. Wilson, supra, 44 Cal.4th at p. 803.) Because the jury was given the correctly worded instructions in written form and instructed with CALJIC No. 17.45 that “[y]ou are to be governed only by the instruction in its final wording,” [footnote omitted] and because on appeal we give precedence to the written instructions, we find no reversible error. (See also People v. Mungia (2008) 44 Cal.4th 1101, 1132–1133 [81 Cal.Rptr.3d 614, 189 P.3d 880]; People v. Box (2000) 23 Cal.4th 1153, 1212 [99 Cal.Rptr.2d 69, 5 P.3d 130].) [Footnote omitted.]

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2.1 - Instruction Delivery: Written/Oral/Recorded
2.1.3 - Written Instructions As Improper Even If Oral Rendition Is Also Given
2.5.4 - Variance Between Reporter's Transcript And Written Instructions
297.2.11 - Prejudice On Appeal: Correct Oral Instruction Does Not Cure Erroneous Or Incomplete Written Instruction
Forecite California™
PG V(G) - Written Instructions to the Jury
F 200.1.2 Note 1 - Written Instructions To The Jury

Duty To Instruct On Lesser Included Offense: Two-Step Inquiry (Arizona)

"If requested to do so and the evidence supports it, the trial judge must . . . instruct the jurors on all offenses 'necessarily included' in the offense charged." State v. Wall, 212 Ariz. 1, 3, P 13, 126 P.3d 148, 150 (2006). Determining whether one offense is necessarily included within another involves a two-step inquiry. State v. Geeslin, 225 P.3d 1129, 1130-1131 (Ariz., No. CR-09-0205-PR, March 4, 2010). The first question is whether the uncharged offense is a "lesser-included" offense of the charged crime. Ibid. A lesser-included offense is "composed solely of some but not all of the elements of the greater crime so that it is impossible to have committed the crime charged without having committed the lesser one." State v. Celaya, 135 Ariz. 248, 251, 660 P.2d 849, 852 (1983). The second question is whether the evidence is "such that a jury could reasonably find that only the elements of a lesser offense have been proved." Wall, 212 Ariz. at 3 P 14, 126 P.3d at 150.

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3.2 - Duty Of Court To Act On It's Own Motion (Sua Sponte Duties)
265.3 - Impact Of Counsel’s Request, Objection Or Silence On Duty To Give Lesser Offense Instruction
Forecite California™
LIO II - Duty to Instruct

Judge Committed Presumptively Prejudicial Plain Error By Failing To Sua Sponte Instruct That The Defendant’s Prior Conviction Was Admitted Only For Impeachment Purposes (Alabama)

Waldrop v. State, (Ala. Crim. App., No. CR-07-0148, Mar. 5, 2010) concluded that the trial judge erroneously failed to limit the juror consideration of a prior conviction offered for impeachment purposes only:

Based on the Alabama Supreme Court's decisions in Ex parte Minor and Ex parte Snyder, we conclude that the trial court should have given the jury a limiting instruction regarding the proper use of evidence about Waldrop's prior conviction. We cannot assume that the jury would have understood, without instruction, that it could use evidence about Waldrop's prior conviction only for impeachment. Rather, we must conclude that, under these circumstances, as was the case in Ex parte Minor, the evidence about Waldrop's prior conviction was presumptively prejudicial and its impact was egregious and that the trial court's failure to instruct the jury regarding the proper use of evidence about Waldrop's prior conviction rose to the level of plain error. See also Riley v. State, (No. CR-06-1038, December 18, 2009). Accordingly, we reverse the trial court's judgment and remand this case for proceedings that are consistent with this opinion.

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26.9 - Prior Conviction For Impeachment Purposes
27.3.2 - Prior Conviction Of Defendant
The Shellow Instructions
Prior Convictions To Impeach Defendant's Credibility: Limiting Instruction
Forecite California™
F 2.09 n2 - Timing Of Limiting Instruction
F 2.23 n1 - Defendant’s Testimony:  Impeachment By Prior Conviction -- Ineffective Counsel For Failure To Request
F 2.23a - Defendant’s Testimony: Impeachment By Prior Conviction
F 316(¶ A) Inst 4 - Defendant’s Testimony: Impeachment By Prior Conviction

Limiting Instruction On Prior Conviction May Restrict Defense Strategy And/Or Emphasize Prejudicial Evidence (Alabama)

To hold that the trial court is required to inform the jury that prior-conviction evidence cannot be used as substantive evidence, would unnecessarily limit the trial court's discretion in forming jury instructions, would restrict defense counsel's trial strategy, cf. United States v. Barnes, 586 F.2d 1052, 1059 (5th Cir. 1978), and in certain circumstances may unnecessarily emphasize the prejudicial evidence. Therefore, while the instruction to the jury must state either that prior-conviction evidence can be used only for the purpose of assessing a witness's credibility or state that such evidence may not be used as substantive evidence of the defendant's guilt of the crime charged, it is not reversible error per se if the trial court does not instruct both as to the admissible purpose of the prior-conviction evidence and the purpose for which such evidence may not be considered, unless counsel requests such a two-pronged instruction and the instruction is supported by the evidence. Waldrop v. State, (Ala. Crim. App., No. CR-07-0148, Mar. 5, 2010).

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297.3.2 - Cautionary Or Limiting Instructions May Emphasize The Prejudicial Matter
Forecite California™
PG X(E)(19)(2) - Cautionary/Limiting Instructions May Emphasize The Prejudicial Matter
PG X(E)(19)(3) - Defendant Should Decide Whether Cautionary/Limiting Instruction Is Given
F 2.50 n2 - Ineffectiveness Of Limiting Instruction As To Other Crimes Evidence

Sample Limiting Instruction: Uncharged Offenses

Defendant is not on trial for any act or conduct not specifically charged in the indictment. If you believe that defendant is guilty of some offense not charged in the indictment, you must still find defendant not guilty if the evidence does not show beyond a reasonable doubt that he has committed the specific acts charged in the indictment.

Source: Portion of instruction approved in United States v. Smith, (D. Kan., No. 05-20104-01, Mar. 1, 2010).

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26.5.3 - Uncharged Acts: Limiting Instructions
The Shellow Instructions
Limited Purpose Evidence: Uncharged Offenses And Acts
Forecite California™
F 2.50 - Other Crimes, Uncharged Offenses

It Is Constitutionally Permissible To Convict An Accomplice Based On A Lesser Mens Rea Than Would Be Required To Convict The Perpetrator

In Sarausad v. Waddington, (Case No. C02-2547-JCC, W.D. Wash. Mar. 2, 2010) the petitioner challenged the entire theory underpinning Washington's conception of the mens rea requirement of accomplice liability--namely, that it is perfectly acceptable in this state for an accomplice to be convicted with a lesser level of mens rea than the principal. State v. Roberts, 142 Wn.2d 471, 14 P.3d 713, 732 (Wash. 2000). Many scholars and state courts have debated the merits of allowing an accomplice to be derivatively liable for the underlying crime without the same level of mens rea required of the principal. See Sanford Kadish, Complicity, Cause and Blame: A Study in the Interpretation of Doctrine, 73 CALIF. L. REV. 323 (1985); Joshua Dressler, Reforming Complicity Law: Trivial Assistance as a Lesser Offense?, 5 OHIO ST. J. CRIM. L. 427 n.4 (2008) [discussing the "natural and probable consequences doctrine" and collecting cases]; Sharma v. State, 118 Nev. 648, 56 P.3d 868, 871-72 (Nev. 2000) [rejecting the "natural and probable consequences doctrine," calling it "harshly criticized by most commentators as both incongruous and unjust because it imposes accomplice liability solely upon proof of foreseeability or negligence when typically a higher degree of mens rea is required of the principal"].

Nevertheless, the habeas petition was denied because "none of these pronouncements comes from the United State Supreme Court. . . ."

(NOTE: A certificate of appealability was granted.)

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Chapter 64: Accomplice Liability (Aiding And Abetting, Accessory Before The Fact, Etc.)
65.2.11 - Natural And Probable Consequences Improper For Specific Intent Offense
The Shellow Instructions
Accomplices
Aiding And Abetting
Forecite California™
F 3.01 - Aiding and Abetting
F 3.02 - Aider and Abettor Liability
SERIES 400 - Aiding and Abetting, Inchoate, and Accessorial Crimes

Temporary Innocent Possession As Defense To Possession Of Firearm By Ex-Felon (18 USC 922(g))

The Eleventh Circuit has cautioned that the defense is extremely limited, only applicable under "extraordinary circumstances." See United States v. Deleveaux, 205 F.3d 1292, 1297 (11th Cir. 2000) (agreeing with other circuits that such a defense may be available but only in extremely limited circumstances). In Deleveaux, the court ruled that a justification defense instruction would be warranted under extraordinary circumstances where: (1) the defendant was under unlawful and present, imminent, and impending threat of death or serious bodily injury; (2) the defendant did not negligently or recklessly place himself in a situation where he would be forced to engage in criminal conduct; (3) the defendant had no reasonable legal alternative to violating the law; and (4) there was a direct causal relationship between the criminal action and the avoidance of the threatened harm. Deleveaux, 205 F.3d at 1297.

Other circuits have declined to recognize the defense at all.  See United States v. Johnson, 459 F.3d 990, 997-98 (9th Cir. 2006) [holding that such a defense would undermine the statutory design of § 922(g)]; United States v. Teemer, 394 F.3d 59, 62-65 (1st Cir. 2005) [rejecting innocent possession defense and affirming district court's refusal to give jury an instruction on "fleeting" or "transitory" possession]; United States v. Mercado, 412 F.3d 243, 250-52 (1st Cir. 2005) [rejecting innocent possession defense and holding that even momentary or fleeting possession of a firearm is sufficient under the statute]; United States v. Gilbert, 430 F.3d 215, 218 (4th Cir. 2005) [rejecting the proposal of an exception to § 922(g)(1) when the defendant had no illicit motive and attempted to quickly rid himself of the firearm]. Other courts have also rejected substantially similar defenses. See United States v. Hendricks, 319 F.3d 993, 1004-05 (7th Cir. 2003) [holding that only justification defenses would be recognized]; United States v. Adkins, 196 F.3d 1112, 1115 (10th Cir. 1999) [holding that trial court acted properly in refusing to give jury instruction on "fleeting possession" theory]. However, the District of Columbia Circuit has held otherwise. See United States v. Mason, 233 F.3d 619, 624-25, 344 U.S. App. D.C. 91 (D.C. Cir. 2000) [defining and applying the transitory innocent possession defense].

See also this Forecite Blog™ post.

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56.3 - Momentary, Innocent, Justifiable, Unwitting Or Accidental Possession
56.3.2 - Innocent Possession
107.3 - Exfelon In Possession Of Firearm: Defenses And Defense Theories
The Shellow Instructions
Possession Of Firearm By Felon: Momentary Possession
Forecite California™
F 12.06 - Momentary Possession
F 12.40 - Possession of Deadly Weapon
F 12.43 - Ex-Felon With Firearm
F 12.46 - Carrying Concealed Weapon

Spoliation Of Evidence: Instructional Sanction (Ohio) (6th Circuit)

Courts have broad powers to address spoliation of evidence claims.  Besides outright dismissals the court may: (1) instruct the jury to draw an adverse inference against the state regarding the missing evidence, see Brokamp v. Mercy Hosp., 132 Ohio App. 3d 850, 726 N.E.2d 594, 608 (Ohio Ct. App. 1999) ["Where evidence which would properly be part of the case is within the control of the party whose interest it would naturally be to produce it, and without satisfactory explanation he fails to do so, the jury may draw an inference that it would be unfavorable to him."]; cf. Davison v. Cole Sewell Corp., 231 Fed. Appx. 444, 451 (6th Cir. Ohio 2007) ["Ohio courts normally would require a strong showing of malfeasance -- or at least gross neglect -- before approving such a charge."] (citing Brokamp, 726 N.E.2d at 608-09); (2) allow, but not require, the jury to draw an adverse inference regarding the missing evidence, see One Beacon Ins. Co. v. Broad. Dev. Group, Inc., 147 Fed. Appx. 535, 541 (6th Cir. 2005) ["[A]n instruction permitting, but not requiring the jury to draw such an inference is a particularly mild sanction for spoliation."]) (citation omitted); cf. Munns v. CSX Transp., No. 3:07CV2507, (N.D. Ohio Mar. 27, 2009) ["Although I decline to give an adverse inference instruction, (the defendant) may question [the plaintiff] as to the whereabouts of his time books to inform the jury that (the plaintiff) no longer has them. It is up to the jury to decide the effect of the missing time books and how much weight should be assigned to the fact that they are no longer available."]; (3) bar any discussion of the missing evidence whatsoever, see Glover, 6 F.3d at 1329; Minton v. Honda of Am. Mfg., 80 Ohio St. 3d 62, 1997 Ohio 356, 684 N.E.2d 648, 667 (Ohio 1997).

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36.1 - Destroyed Or Lost Evidence
The Shellow Instructions
Missing/Lost/Destroyed Evidence
Forecite California™
F 2.014 - When Prosecution Loses Or Destroys Evidence
F 371(A-4) Inst 3 - Suppression Of Evidence By The Police Or Prosecution
F 371(A-4) Inst 4 - Attempted Suppression Of Evidence Or Witness Intimidation By The Police Or Prosecution
F 371(A-4) Inst 5 - Instruction As Sanction For Prosecution’s Loss Or Destruction Of Evidence Generally
F 371(A-4) Inst 6 - Instruction As Sanction For Prosecution’s Loss Of Original Line Up Photos

Sample Limiting Instruction: Stipulation To Unspecified Prior Conviction

Ladies and gentlemen, the stipulation and the evidence did not specifically address the specific crime which is alleged in the indictment, so you shall not consider the specific crime that was alleged in the indictment during your deliberations. There's been no proof as to that specific crime. What they have stipulated to is that the defendant has been convicted in a court of a crime punishable by imprisonment for a term in excess of one year. That's the fact that was stipulated to.

Source: Approved in United States v. Kirkwood, (M.D. Ga., No. 4:08-CR-46 (CDL), Mar. 3, 2010).

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24.2.3 - What Is Evidence: Stipulations
39.1 - Stipulation As Defense Strategy
107.2.4 - Refusal Of Stipulation To Exfelon/Misdemeanant Status As Due Process Violation
107.2.5 - Exfelon In Possession Of Firearm: No Speculation About Nature Of Prior Felony Where Stipulated
270.1.4 - Impact Of Stipulation On Burden Of Proof
The Shellow Instructions
Evidence: Trial Procedure – Stipulations
Forecite California™
F 1.02 - Stipulation
F 12.44a - Ex-Felon In Possession Of Firearm: No Speculation About Nature Of Prior Felony Where Stipulated
F 104.1 Inst 5 (a-c) - Stipulated Facts

Duplicity: Improper “And/Or” Language (Minnesota)

In State v. Munguia, (Minn. Ct. App., No. A09-476, Mar. 16, 2010) [NOTICE: This opinion is UNPUBLISHED.] the judge instructed the jurors that Munguia could be convicted of harassment for an act that occurred on August 31 and/or September 2. Even though the defense did not object to the “and/or” jury instruction the reviewing court held that the instruction was plain error which deprived the defendant of a unanimous verdict: “The instruction leaves in doubt what act constituted harassment.”  Ibid.; see also State v. Hart, 477 N.W.2d 732, 739 (Minn. App. 1987) [“either/or” jury instructions are unclear and potentially raise doubt about the unanimity of the jury verdict].

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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
Chapter 273: Jury Unanimity As To The Act Or Offense Committed (Duplicity)
296.2.5 - Standard Of Prejudice On Appeal: Jury Unanimity (Duplicity)
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PG II - Jury Instruction Language

Failure To Instruct On Lesser Included Offense Undermines The Reliability Of The Conviction (Montana)

It is not unusual for reviewing courts to conclude that the omission of an instruction on a lesser included offense was harmless because the jury found all elements of the lesser offense by virtue of the conviction on the greater charge.  However, affirming a conviction under such a rationale ignore the role the lesser offense plays in promoting verdict reliability: “[A] defendant is entitled to a lesser included offense instruction if two criteria are met: (1) the offense must constitute a lesser included offense as defined by [statute], and (2) there must be sufficient evidence to support an instruction on the lesser included offense. [Citation.] The purpose of this rule is to ensure reliability in the fact-finding process. It avoids the situation where the jury, convinced that the defendant is guilty of some crime, although not necessarily the crime charged, convicts the defendant rather than let his action go unpunished simply because the only alternative was acquittal. [Citations.]”  State v. Feltz, 2010 MT 48, P17 (Mont., No. DA 09-0245, March 16, 2010) [failure to give requested instruction on lesser included offense was reversible error].

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265.2 - Evidence Required For Lesser Offense Instruction
265.3 - Impact Of Counsel’s Request, Objection Or Silence On Duty To Give Lesser Offense Instruction
265.6.3 - Due Process Underpinnings Of Instruction On Lesser Included Offenses
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PG V(A)(7) - Judge’s Duty To Instruct On Lesser Included Offense
PG VII(C)(12) - Failure To Instruct On Lesser Included In Capital Case

Unarmed Robbery Is Lesser Included Of Armed Robbery (Michigan)

In Michigan unarmed robbery is a necessarily included lesser offense of armed robbery. People v. Reese, 466 Mich 440, 446-447; 647 NW2d 498 (2002). The element  distinguishing unarmed robbery from the offense of armed robbery is the use of a weapon. Id. at 447.

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100.1.14 - Robbery: Lesser Included Offenses
Chapter 265: Lesser Included Offenses: General Principles
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F 9.40 - Robbery
Calcrim 1600 - Robbery And Carjacking
Lesser Included Offenses: I Determining LIO

Sample Instruction: Gang Evidence (New Jersey)

VOIR DIRE:

During the trial, you'll hear references to an allegation that the decedent and the defendant were members of rival street gangs. It would be up to you to determine if that is true or not true and whether, if true, that has any relevance to a possible motive for the charges set forth in the indictment. I can tell you, however, that you can never use that evidence to conclude that defendant has a predisposition to commit any crimes or that simply because you find he was a member of a gang, he must be guilty of the crimes charged in the indictment. I'll tell you more about that later. Is there anyone here who believes that such evidence alone would make it difficult for you to be a fair and impartial juror?

PRE-TRIAL:

Now, when we were selecting the jury in this case, I told you that during the course of the trial you will hear references to an allegation that _____________ <insert name of decedent> and the defendant were members of rival street gangs. It will be up to you to determine if that is true or not true, and whether if it is true, that it has any relevance to a possible motive for the charges set forth in the indictment. I can tell you, however, that you can never use that evidence to conclude that the defendant has a predisposition to commit any crimes, or that simply because you find he was a member of a gang, or that the victim may have been a member of a gang . . . the defendant, therefore, must be guilty of the crimes charged in the indictment.

FINAL:

[Explain the specific use for which the gang related evidence was admitted.] Whether this evidence does, in fact, demonstrate motive is for you to decide. You may decide that the evidence does not demonstrate motive and is not helpful to you at all. In that case, you must disregard it.
 
On the other hand, you may decide that the evidence does demonstrate motive and you may utilize it for that specific purpose. However, you may not use this evidence to decide that the defendant has a tendency to commit crimes or that he is a bad person. That is, you may not decide that just because the defendant is a member of a street gang, or that the decedent was a member of a street gang, the defendant must be guilty of the present crimes. I have admitted this evidence only to help you decide the specific question of motive. You may not consider it for any other purpose and may not find the defendant guilty now simply because the State has offered evidence that he . . . was a member of a street gang.

Source: Given and approved in State v. Goodman, (App.Div., No. A-1329-07T4, Mar. 17, 2010).

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26.5.3.4 - Instruction Limiting Use Of Gang Evidence
51.1.3 - Improper To Admit Gang Evidence To Prove Identity
Chapter 85: Criminal Street Gangs
The Shellow Instructions
Defendant’s Association With Reputed Gang Members May Not Be Considered
Forecite California™
F 6.50 - Gangs
F 375 Inst 7 (a & b) - Gang Evidence Modification
Series 1400 - Criminal Street Gangs

Jury Instructions And The Right To A Fair Trial (Michigan) (New Jersey)

“The right to a properly instructed jury is fundamental to the right to receive a fair trial." People v. Embree, 68 Mich App 40, 44; 241 NW2d 753 (1976); see also State v. Green, 86 N.J. 281, 287, 430 A.2d 914 (1981) [Proper jury instructions "are essential for a fair trial"].  Accordingly, the court must give the jury "a comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find." State v. Green, 86 N.J. at 287-88. The jury charge should include instructions on all "essential and fundamental issues and those dealing with substantially material points." Id. at 290. Because a defendant should be tried with correct jury instructions, "an erroneous charge will rarely stand on the ground that the error was harmless." State v. Barden, 195 N.J. 375, 394, 949 A.2d 820 (2008).

Error in an instruction that is "crucial to the jury deliberations on the guilt of a criminal defendant" is a "'poor candidate[] for rehabilitation' under the plain error theory." State v. Jordan, 147 N.J. 409, 422, 688 A.2d 97 (1997)(citation omitted). "Nevertheless, any alleged error also must be evaluated in light 'of the overall strength of the State's case.’” State v. Burns, 192 N.J. 312, 341, 929 A.2d 1041 (2007).

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PG VII(C) - Substantive Federal Constitutional Issues

Sample Instruction: Witness Intimidation (New Jersey)

There is for your consideration in this case a letter allegedly written by the defendant to _______ <insert name of recipient>. The State contends that this letter was written by defendant and constituted an effort by him to enlist the help of _______ <insert name of recipient> to either harm or intimidate _______ <insert name of witness>, an alleged witness to the ________ <e.g., shooting of> _______ <insert name of alleged victim>. The questions of whether the defendant wrote the letter and if he did, whether he intended it to be an effort to enlist someone to harm or intimidate _______ <insert name of witness> are also questions of fact for your determination.


If you find that the defendant wrote the letter and intended it to be an effort to enlist someone to harm or threaten _______ <insert name of witness>, then you may consider it in connection with all the other evidence in the case as an indication or proof of consciousness of guilt on the part of the defendant. On the other hand, defendant claims that reasonably read, the letter does not seek to enlist anyone to harm or intimidate the witness. If you find the defendant did not write the letter and/or that it was not intended to seek help in harming or intimidating the witness in this case, you should disregard the letter entirely.

Source: Given and approved in State v. Goodman, (App.Div., No. A-1329-07T4, Mar. 17, 2010).

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77.13 - Witness Intimidation
The Shellow Instructions
Witness Intimidation
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F 7.14 - Witness Intimidation
F 7.15 - Witness Intimidation
F 7.16 - Witness Intimidation and Testimony
F 16.505 - Witness Intimidation
F 18.08 - Witness Intimidation

Definition Of Technical Terms: Felony vs. Misdemeanor

Most jurisdictions require instructional definitions of technical legal terms which are beyond the ken of lay jurors.  See e.g., State v. Heinzer, 347 N.W.2d 535, 537 (Minn. App. 1984), review denied (Minn. July 26, 1984); see also this post. Among the terms which do require instructional definition are “felony” and “misdemeanor.”  As observed by the reviewing court in Cohron v. Commonwealth, 306 S.W.3d 489, 496 (Ky., No. 2007-SC-000483-MR, March 18, 2010): “We do not believe it is obvious to an average person what charges are felonies and what are misdemeanors, particularly when the offenses charged were not specifically enumerated for the jury.”

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3.2.6 - Duty To Define Terms With Specialized/Technical Meaning; No Duty To Define Common Terms
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PG II(B) - Terms With a Specialized or Technical Legal Meaning
PG V(A)(8) - Terms With Specialized/Technical Meaning:  Sua Sponte Duty to Define

Sample Instruction: Inflammatory Nickname (New Jersey)

I want now to give you an instruction. I am striking the testimony of _______ <insert name of witness> with regard to an alleged nickname of _______ <insert name of defendant>. And I want you to disregard the testimony of _______ <insert name of witness> with regard to any alleged nickname of _______ <insert name of defendant>, other than _______ <insert noninflammatory nickname if appropriate>. And I tell you right now that no nickname is evidence of guilt whatsoever. The use of a nickname, or any other kind of name, cannot and should not be considered by you for any purpose whatsoever, especially to show any predisposition on the part of defendant to commit a crime or to otherwise perform any bad act whatsoever. You must disregard that testimony with respect to any alleged nickname other than _______ <insert noninflammatory nickname if appropriate>. It is not evidence of anything and I am instructing you to disregard it. And in particular, and not without limitation, you are not to utilize any of that testimony whatsoever in any of your deliberations. It cannot be used by you.


Now, I understand that it's hard for somebody to say: Don't think of a pink elephant. And what I'm asking you to do, therefore, is while you might remember the testimony, I ask you to put it in a box. Put lines around it and you are not to utilize it for any purpose whatsoever in your . . . decision in this case.
   
_______ <insert name of defendant> is presumed to be innocent and that presumption stays with him until the State has proven guilt beyond a reasonable doubt, if that is the conclusion that you come to at the end of this case. You cannot utilize this testimony in any way, shape, manner or form. If any of you feel that you're unable to abide by this instruction that I have now given to you, to disregard that testimony that I have now stricken, I need to know now. Is there anybody who feels that they can't abide by it? Anybody here feels that they would be unable to reach a fair and impartial verdict as a consequence of hearing testimony that  I've stricken and now have given you an instruction with respect to?
                   
Source: Given and approved in State v. Goodman, (App.Div., No. A-1329-07T4, Mar. 17, 2010).

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25.11 - Inflammatory Evidence
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CG 5.1 - Highly Prejudicial Or Inflammatory Evidence

Requiring Defendant To Testify To Obtain Defense Theory Instruction Does Not Violate 5th Amendment (Kentucky)

It is not necessarily required that the defendant testify to obtain an instruction on an affirmative defense.  Often there is other evidence from which the existence of the defense may be reasonably deduced.  However, when there is no other evidence to support the defense it may be necessary for the defendant to testify to obtain the affirmative defense instruction.  For example, in Padgett v. Commonwealth, 312 S.W.3d 336, 342 (Ky., No. 2008-SC-000632-MR, March 18, 2010) there was no record evidence to support the giving of the defendant’s requested instruction on extreme emotional disturbance.  Thus, the defendant was in a position where he was required to testify if he wanted his requested affirmative defense instruction.  The reviewing court held that the Fifth Amendment was not implicated:

The trial court did not require Appellant to testify; it simply required him to produce some admissible evidence to support the extreme emotional disturbance instruction. The fact that Appellant may have only been able to support this instruction by testifying does not implicate the Fifth Amendment. Just as this Court held in the context of the self-protection defense, the reasoning applies here: where circumstantial or indirect evidence fails to raise the issue of self-protection, the fact that a defendant must testify or forgo this defense does not implicate the Fifth Amendment. The defendant's "choice between complete silence and presenting a defense has never been thought an invasion of the privilege against compelled self-incrimination. [Citations.]”


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18.4 - Failure Of Defendant To Present Evidence
18.3.6 - Defendant Who Fails To Testify Need Not Disprove Anything
250.2.2 - Defendant Need Not Testify To Obtain Instruction On Defense Theory
The Shellow Instructions
Defendant Not Testifying
Forecite California™
PG X(A)(1.3.2) - Neither Defendant’s Testimony Nor Affirmative Defense Evidence Is Necessary For Instruction On Defense Theory
F 355 - Defendant's Right Not to Testify

Sample Instruction: Harassment – Definition Of “Threat” (Washington)

A “true” threat is a statement made in a context or under such circumstances wherein a reasonable person making such statement would objectively foresee that the statement would be interpreted as a serious expression of an intention to inflict bodily harm or to take the life of another individual.

Whether a true threat has been made is determined under an objective standard that focuses on the speaker.

A true threat is a serious threat, not one said in jest, idle talk, or political argument.
. . .

A person commits the crime of harassment when he or she, without lawful authority, knowingly threatens to cause bodily injury immediately or in the future to another person and when he or she by words or conduct places the person threatened in reasonable fear that the threat will be carried out.
. . .

Threat[en] means to communicate, directly or indirectly, the intent to cause bodily injury in the future to the person threatened or to any other person.

Source: Given and approved in State v. Wise, (Wash. Ct. App., No. 27647-3-III, Mar. 18, 2010) [NOTICE: This opinion is UNPUBLISHED.]

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77.14 - Terrorist Threats
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Series 1300 - Criminal Threats
F 1301.5 Inst 3 - Incorporation Of Credible Threat Elements In Enumerated Elements Of The Charge