Ineffective Assistance Of Counsel For Failing To Request Jury Instruction On Defense Of Habitation (Georgia)

In Benham v. State, 277 Ga. 516, 591 S.E.2d 824 (Ga. 2004), the Georgia Supreme Court held that trial counsel provided ineffective assistance of counsel when she failed to request a jury instruction on the use of force in defense of habitation. 591 S.E.2d at 825. According to the evidence, the defendant was in her car when she slashed the victim, an attacker, with a box cutter. Id. at 825‑26. Defense counsel requested a self‑defense instruction, but did not request an instruction on defense of habitation which includes motor vehicles. Id. at 826. The Georgia Supreme Court held that counsel was ineffective under Strickland for not requesting the habitation instruction because that defense allowed the use of deadly force even if such force "was not necessarily required" to repel the attack. Id. at 826‑27.

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295.3.2 - Ineffective Assistance Of Counsel At Trial

295.3.2.4 - Failure Of Trial Counsel To Make Instructional Request As Ineffective Assistance Of Counsel

295.3.2.5 - Duty Of Trial Counsel To Request Specific Instructions On The Defense Theory

295.3.2.6 - Failure To Research And Present Nonpattern Jury Instruction As Ineffective Assistance Of Trial Counsel (IAC)

295.3.2.7 - Examples Of Cases Finding Prejudicial/Reversible Error Based On Counsel's Failure To Request Jury Instructions

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PG VI(C) - Duty To Request Instructions

Pattern Instructions Are “Not The Law” And Entitled To “Little Weight” (Illinois)

“ . . . [T]he Government refers us to the Illinois Pattern Jury Instructions. . . . These are not the law, however, and are therefore entitled to little weight. [Citation.]" Welch v. United States, 604 F.3d 408, 421 fn 15 (7th Cir. Ill., No. 08‑3108, 5/4/2010).

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1.3 - The Inherent Limitation Of Pattern Instructions

1.3.6 - The Instruction Committees Themselves Recognize The Need To Look Beyond The Pattern Instructions

1.3.7 - Even "Mandatory" Pattern Instructions Are Not Sacrosanct

1.3.8 - The Trial Judge Retains Broad Discretion To Modify Or Supplement Pattern Instructions

1.3.9 - Approval Of Standard Instructions By State Supreme Court Does Not Relieve Judge Of Duty To Instruct Correctly

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PG XI(A)(1) - CALCRIM Is Not Sacrosanct

PG XI(A)(2) - The Trial Judge Has Broad Inherent Discretion Over Jury Instructions

PG XI(A)(3.1) - A Court's Inherent Discretionary Powers And Duties Supersede Any Recommendation By The Rules Of Court

PG XI(A)(3.2) - The Federal Constitution Supercedes The Rules Of Court

PG XI(A)(3.3) - Like CALJIC, CALCRIM Is Not Sacrosanct

PG XI(A)(4) - Instructional Authority Also Comes From The Federal Constitution

Failure To Instruct On Specific Unanimity: Standard Of Prejudice On Appeal (10th Circuit)

Failure to require the jurors to unanimously agree upon at least one of several offenses shown by the evidence is not reversible error when there is no basis in the evidence to differentiate among the acts.  For example, United States v. Allen, 603 F.3d 1202, 1216 (10th Cir. Wyo., No. 09‑8008, 5/7/2010) held such an error harmless when the evidence suggested a “sharp choice” – either the defendant was guilty of all the alleged acts or none of them:

In short, because the four telephone calls occurred within a very short time span (about 62 minutes) and all involved Ms. Myhre coming to Ms. Allen's house within that time span (or returning to the house), the calls were very clearly related rather than separate incidents. The testimony suggested a sharp choice –  either all the calls were about methamphetamine, as Ms. Myhre testified, or none were, as Ms. Allen testified. The jury was thus necessarily convinced beyond a reasonable doubt that the calls were all about methamphetamine. Any error in refusing to give an instruction requiring specific unanimity was clearly harmless beyond a reasonable doubt.

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273.12.2 - Jury Unanimity: Standard Of Prejudice On Appeal

Chapter 296: Standards of Review And Prejudice On Appeal

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PG VII(C)(16) - Juror Unanimity

PG X(C)(12) - Juror Unanimity:  Sullivan v. Louisiana Requires Reversal Per Se

PG X(C)(20) - Standard Of Prejudice: Failure To Instruct On Jury Unanimity

CALCRIM 3500 - Post‑Trial Concluding

Sample Instruction: Willfulness In Conspiracy Prosecution (11th Circuit)

“The prosecution must prove beyond a reasonable doubt that the defendant, knowing the unlawful purpose of the plan, joined in it willfully, that is, with the intent to further its unlawful purpose."

Source: United States v. Jubiel, 377 Fed. Appx. 925, 931 (11th Cir. Fla., No. 09‑10528, 5/5/2010). [Notice: This opinion is UNPUBLISHED.]

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Chapter 46: Willfulness

Chapter 83: Conspiracy

83.3.5.7 - Conspiracy: Requirement Of Definition Of "Willfully" When Defendant Contests Intent To Form The Agreement

The Shellow Instructions

Basic Elements Of A Criminal Allegation: Willfulness

Conspiracy: Prosecution Must Prove Intentional Participation

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F 1.20 - Willfully Defined

F 415 - Conspiracy

Trial Judge Not Required To Use Patten Instructions (11th Circuit)

The trial judge’s power over specific instruction language was reiterated in United States v. Jubiel, [UNPUBLISHED] 377 Fed. Appx. 925, 931 (11th Cir. Fla., No. 09‑10528, 5/5/2010): “Generally, we review the legality of a jury instruction de novo, but defer to the district court on the specific phrasing of an instruction, absent an abuse of discretion. [Citation.] . . . The district court is not required to use the Eleventh Circuit Pattern Jury Instructions, and we have repeatedly approved jury instructions that do not exactly track the language of the pattern instructions. [Citation.]”

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1.3.6 - The Instruction Committees Themselves Recognize The Need To Look Beyond The Pattern Instructions

1.3.7 - Even "Mandatory" Pattern Instructions Are Not Sacrosanct

1.3.8 - The Trial Judge Retains Broad Discretion To Modify Or Supplement Pattern Instructions

1.3.9 - Approval Of Standard Instructions By State Supreme Court Does Not Relieve Judge Of Duty To Instruct Correctly

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PG XI(A)(1) - CALCRIM Is Not Sacrosanct

PG XI(A)(2) - The Trial Judge Has Broad Inherent Discretion Over Jury Instructions

PG XI(A)(3.1) - A Court's Inherent Discretionary Powers And Duties Supersede Any Recommendation By The Rules Of Court

PG XI(A)(3.2) - The Federal Constitution Supercedes The Rules Of Court

PG XI(A)(3.3) - Like CALJIC, CALCRIM Is Not Sacrosanct

PG XI(A)(4) - Instructional Authority Also Comes From The Federal Constitution

Second Circuit Reverses Conspiracy Conviction Due To Insufficient Evidence Of Knowledge (2nd Circuit)

“. . . [W]e conclude that the evidence at trial, viewed as a whole and taken in the light most favorable to the government, was insufficient to permit the jury to find beyond a reasonable doubt that Torres knew that the Packages addressed to him contained narcotics, and hence was insufficient to establish that he had knowledge of the purposes of the conspiracy of which he was accused.”  United States v. Torres, 604 F.3d 58, 71-72 (2d Cir. N.Y., No. 09‑1771‑cr, 5/5/2010).

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45.2.3 - Specific Intent: Knowledge As An Element

Chapter 47: Knowledge

Chapter 83: Conspiracy

83.3.5.4 - Conspiracy: Lack Of Knowledge As Defense Theory

83.3.6.5 - Conspiracy: Defense Theory That Knowing Association Is Insufficient

The Shellow Instructions

Basic Elements Of A Criminal Allegation: Knowledge

Conspiracy: Knowledge Element Must Be Proven As To Each Defendant

Conspirator Must Act With Knowledge; Independent Evidence Of Participation

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F 415.5 Inst 6 - Separate Enumeration Of Combined Elements

F 415.6 Inst 2 (a‑c) - Knowing Association Insufficient To Prove Conspiracy

F 415.6 Inst 3 - Mere Awareness Of Conspiracy Not Sufficient To Convict

F 415.6 Inst 4 (a‑c) - Knowingly Helping To Accomplish The Conspiratorial Objective Is Insufficient

Do Jurors Actually Follow Cautionary And Limiting Instructions? (10th Circuit)

In United States v. Allen, 603 F.3d 1202, 1213‑1216 (10th Cir. Wyo., No. 09‑8008, 5/7/2010) the prosecutor, without defense objection, referred to a chart and photo array which ostensibly was “included to aid the jury in keeping track of . . . the names they would hear during the . . . trial.”  The chart was not admitted into evidence.  After originally allowing the jurors to see the chart, the judge ruled sua sponte that the array could not be shown again because, inter alia, if included a “mug shot” of the defendant which the judge described as a “stereotypical picture of a Central L.A. gang banger.” 

The 10th Circuit “shared the concerns of the trial judge about this photo array” but held that the judge’s cautionary instructions rendered the error harmless.

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4.3.2 - Cautionary And Limiting Instructions: Requests And Objections

Chapter 26: Limited Purpose Evidence

272.5.4 - Inability Of Limiting Instruction To Cure Highly Prejudicial Misconduct During Summation/Closing Argument

272.5.5 - Circumstances Where Cautionary And Limiting Instructions May Be Effective

297.3.2 - Cautionary Or Limiting Instructions May Emphasize The Prejudicial Matter

The Shellow Instructions

Limiting Instructions

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PG X(E)(19)(1) - Inability Of Limiting Instructions To Cure Error

PG X(E)(19)(1.1) - Inability Of Limiting Instructions To Cure Evidentiary Error

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

Joinder: Ability Of Jurors To “Compartmentalize” Evidence (3rd Circuit)

A properly instructed jury can reasonably be expected to compartmentalize evidence to prove the various offenses. United States v. Reicherter, 647 F.2d 397, 400 (3d Cir. 1981); see also United States v. Zafiro, 506 U.S. 534, 538‑39 (1993).

But see this post.

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25.20.6 - Uncharged Acts Offered To Prove Propensity: Analogy To Improper Joinder To Illustrate Prejudice 

34.2.8 - Consciousness Of Guilt: Potential Prejudice When Crime Implying Consciousness Of Guilt Is Joined With Another Substantive Crime

Chapter 274: Multiple Offenses: Propriety Of Instruction

276.7 - Deliberation: Multiple Defendants

276.8 - Multiple Counts

The Shellow Instructions

Multiple Counts

Multiple Defendants

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F 203 Note 1 - Prejudicial Joinder Of Weak Case With Strong Case 

Joinder: Exception To Presumption That Jurors Are Able To Follow Limiting Instructions (2nd Circuit)

As a general matter, even where multiple defendants are charged with the same crimes, the use of an out‑of‑court admission does not violate the Confrontation Clause when accompanied by an instruction limiting its admissibility as against the declarant defendant. See In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 93, 135‑37 (2d Cir. 2008); United States v. Harris, 167 F. App'x 856, 859 (2d Cir. 2006) [no Crawford issue where statements were offered only against declarant and accompanied by proper jury instruction]; United States v. Newell, 578 F. Supp. 2d 209, 213 (D.Me. 2008) [same]; A. S. Goldmen, Inc. v. Phillips, 2006 WL 1881146, at *33 (S.D.N.Y. July 6, 2006) [same]; see also CSX Transp., Inc. v. Hensley, 129 S. Ct. 2139, 2141, 173 L. Ed. 2d 1184 (2009) [juries are presumed to follow limiting instructions].  An exception may exist where there is an "overwhelming probability" that the jury will be unable to follow such an instruction. See United States v. Jass, 569 F.3d 47, 56 n.5 (2d Cir. 2009) [quoting Richardson v. Marsh, 481 U.S. 200,  208 (1987)]; see also United States v. Jones, 16 F.3d 487, 493 (2d Cir. 1994) [limiting instructions insufficient if they require jury to perform "mental acrobatics"]; United States v. Defreitas, 701 F. Supp. 2d 309, 314‑318 (E.D.N.Y., No. 07‑CR‑543 (DLI)(SMG), 5/6/2010). However, the mere possibility that a jury could infer from other admissible evidence that a properly‑redacted statement refers to a non‑declarant defendant does not create such an exception. See Richardson, 481 U.S. at 208.

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4.3.2 - Cautionary And Limiting Instructions: Requests And Objections

Chapter 26: Limited Purpose Evidence

272.5.4 - Inability Of Limiting Instruction To Cure Highly Prejudicial Misconduct During Summation/Closing Argument

272.5.5 - Circumstances Where Cautionary And Limiting Instructions May Be Effective

297.3.2 - Cautionary Or Limiting Instructions May Emphasize The Prejudicial Matter

The Shellow Instructions

Limiting Instructions

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PG X(E)(19)(1) - Inability Of Limiting Instructions To Cure Error

PG X(E)(19)(1.1) - Inability Of Limiting Instructions To Cure Evidentiary Error

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

Inference Of Malice And Intent To Kill From Use Of A Firearm (Georgia)

Owens v. State, 286 Ga. 821, 828 (Ga., No. S09A2068, March 26, 2010) held that the following instruction was erroneous but harmless:

If a person of sound mind and discretion intentionally and without justification uses a deadly weapon or instrumentality in the manner in which such weapon or instrumentality is ordinarily used and thereby causes the death of a human being, you may infer malice and the intent to kill.

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92.7.2 - Intentional Murder: Intent And Malice Issues
The Shellow Instructions
Murder: Jury Not Required To Draw Intent Inference From Firing Of Gun 
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F 8.11 - Implied Malice

Reversible Error To Refuse Defense Theory Instruction On Misdemeanor Pointing Of An Unloaded Firearm (Indiana)

Scott v. State, 924 N.E.2d 169, 175-177 (Ind. Ct. App., No. 79A05-0812-CR-746, March 25, 2010) illustrates the duty of the judge to give a defense theory instruction unless the evidence in support of the theory is “totally lacking.” Even if it is “unlikely” that the jury will accept the defense theory the presence of conflicting evidence puts the theory “at issue.” Under such circumstances the defense theory instruction should be given. Id. at 176-77.

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3.2.5 - Sua Sponte Duty To Instruct On Defense Theory Supported By Substantial Evidence
3.2.9 - Duty To Instruct On Defense Theories Sua Sponte
Chapter 250: Defenses And Defense Theories: General Issues
296.2.2.3 - Standard Of Prejudice On Appeal: Failure To Instruct On A Defense Or Defense Theory
The Shellow Instructions
Defense Theory
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PG VII(C)(14) - Denial Of Instruction And Argument On Defense Theory As Violation Of Rights To Trial By Jury, Due Process, Counsel, Compulsory Process, And Confrontation
PG X(C)(3) - Failure to Instruct on Defense
PG X(C)(3.1) - Failure To Instruct On Defense: General Instruction On Element Of Charge Is Insufficient
PG X(C)(3.2) - Failure To Instruct On Defense Theory: Standard Of Prejudice
PG X(C)(10) - Failure To Give Defense Pinpoint Instruction

Georgia Appellate Court Reverses Conviction For Failure To Give Circumstantial Evidence Instruction (Georgia)

In Martinez v. State, 303 Ga. App. 71 (Ga. Ct. App., No. A09A1608, March 24, 2010) the judge failed to sua sponte give the following statutorily required instruction:

“To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.”

The reviewing court concluded that the error required reversal because “we cannot say that the evidence of his guilt was overwhelming.” Ibid.

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25.12.1 - Circumstantial Evidence: Duty To Instruct
The Shellow Instructions
Evidence: Circumstantial Evidence: Generally
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F 224 Note 2 - Instruction Required When Direct Evidence May Be Rejected Or Prosecution Relies On Circumstantial Evidence
F 224 Note 3 - Giving Of Circumstantial Evidence Instructions When Not Warranted By The Evidence As Harmless Error

Idaho Case Illustrates The Importance Of Requesting Defense Theory Instructions (Idaho)

In Idaho law provides that defendants may only be subject to one enhancement when multiple crimes arose out of an indivisible course of conduct.   However, State v. Peregrina, (Idaho Ct. App., No. 35115, 2010 Opinion No. 19, Mar. 24, 2010) held that the factual issue of divisibility is an affirmative defense rather than an element which the prosecution must prove.  Accordingly, the defendant’s failure to request an instruction on divisibility waived the issue and the sentences on multiple enhancements were affirmed. 

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3.2.5 - Sua Sponte Duty To Instruct On Defense Theory Supported By Substantial Evidence
3.2.9 - Duty To Instruct On Defense Theories Sua Sponte
Chapter 250: Defenses And Defense Theories: General Issues
296.2.2.3 - Standard Of Prejudice On Appeal: Failure To Instruct On A Defense Or Defense Theory
The Shellow Instructions
Defense Theory
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PG VII(C)(14) - Denial Of Instruction And Argument On Defense Theory As Violation Of Rights To Trial By Jury, Due Process, Counsel, Compulsory Process, And Confrontation
PG X(C)(3) - Failure to Instruct on Defense
PG X(C)(3.1) - Failure To Instruct On Defense: General Instruction On Element Of Charge Is Insufficient
PG X(C)(3.2) - Failure To Instruct On Defense Theory: Standard Of Prejudice
PG X(C)(10) - Failure To Give Defense Pinpoint Instruction

Sample Instruction: Inference Of Intent To Kill From Circumstantial Evidence (Connecticut)

Intent relates to the condition of mind of the person who commits the act, that is, his purpose in doing it. Intent is a mental process. A person's intention may be inferred from his conduct. It is often impossible and never necessary to prove criminal intent by direct evidence. Ordinarily, intent can be proven only by circumstantial evidence, as I have explained that term to you. A person acts intentionally with respect to a result or conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct.


As I have said before, intent is a mental process. To discern what a person is thinking, the question of intent may be determined by considering all of the facts and circumstances leading up to, surrounding and following the events in question. You may consider any statement made and act done or omitted by the defendant, along with all other facts and circumstances in evidence and from those you may infer what his intention was. An intent to cause death may be inferred from circumstantial evidence, such as the type of weapon used, manner in which it was used, the number of shots, the type of wounds inflicted and the events leading to and immediately following the death.


What a man's purpose[,] intention or knowledge has been is necessarily a matter of inference. No person can be able to testify that he looked into another person's mind and saw therein a certain purpose or intention or certain knowledge to do harm. The only way in which a jury can determine what a man's intention or knowledge was at any given time is by determining what the man's conduct was and what the circumstances were surrounding that conduct and from that evidence infer what his purpose, intention or knowledge was. To draw such an inference is not only the privilege, but also the duty of the jury, provided, of course, that the inference drawn is reasonable and it is drawn beyond a reasonable doubt. [*Practice Note: This paragraph illustrates why the defense should be entitled to instructions on defensive matters such as self defense even if the defendant has not testified as to his/her intent.]

Source: Portion of instruction given and approved in Tatum v. Warden, 2010 Conn. Super. LEXIS 684, 32-34 (Conn. Super. Ct., No. CV03004175S, Mar. 23, 2010) [NOTICE: This opinion is UNPUBLISHED.]

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25.12.5 - Proof Of Intent: Circumstantial Evidence Sufficient
92.7.2 - Intentional Murder: Intent And Malice Issues
The Shellow Instructions
Murder: Jury Not Required To Draw Intent Inference From Firing Of Gun
Forecite California™
F 225 - Circumstantial Evidence: Intent Or Mental State

F 702.2 Inst 2 - Jurors Not Required To Decide Intent To Kill

DUI/DWI: Defense Of Involuntary Or Unwitting Intoxication Not Available If Defendant Was Negligent (Alaska)

After reviewing a number of cases and texts on the question of involuntary/unwitting intoxication Solomon v. State, 227 P.3d 461, 468-469 (Alaska Ct. App., No. A-10364, No. 2256, March 26, 2010) articulated the following – negligence based – rule:

“If, in a DUI prosecution, there is evidence that the defendant unwittingly became intoxicated because of a reasonable, non-negligent mistake about the intoxicating nature of the beverage or substance they ingested, then the defendant is entitled to a jury instruction on this defense, and it becomes the government's burden to disprove this defense beyond a reasonable doubt – either by proving that the defendant acted at least negligently, or by proving that the defendant came to realize their impairment but continued to drive.”

Applying this rule to Solomon’s situation the reviewing court concluded that no unwitting intoxication instruction was required:

“Solomon introduced evidence at his trial (1) that his intoxication stemmed from his ingestion of approximately one quart of NyQuil cold medicine; (2) that he did not read the label on the NyQuil bottles (which would have warned him that NyQuil contained 10 percent alcohol); and (3) that he remained subjectively unaware that NyQuil contained alcohol or that NyQuil might otherwise be an intoxicant.

Solomon would be entitled to a jury instruction on the defense of unwitting intoxication only if the evidence (viewed in the light most favorable to the proposed defense) would have been sufficient to support the conclusion that Solomon acted non-negligently with respect to the circumstance that NyQuil was an intoxicant. Here, it was undisputed that the label on the NyQuil bottles plainly stated that the medicine contained 10 percent alcohol. Solomon might not have read this label before he drank the quart of NyQuil, but no reasonable jury could conclude that Solomon's failure to read the label was reasonable and non-negligent.
  
Accordingly, under the facts of Solomon's case, he was not entitled to argue a theory of unwitting intoxication to the jury, and the trial judge did not commit error when she refused Solomon's requests for jury instructions on this defense.”

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256.5 - Intoxication, Involuntary
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F 4.22 - Voluntary and Involuntary Intoxication
F 4.23 - Involuntary Intoxication
F 4.30a - Ingestion Of Prescription Medicine As Involuntary Intoxication
F 3427 - Involuntary Intoxication

Double Jeopardy Bars Retrial Where Prosecution Objected To Receiving A Jury Verdict On A Lesser Included Offense

In United States v. Carothers, 697 F. Supp. 2d 1160, 1163-1164 (C.D. Cal., No. CR 08-01299-CJC, March 22, 2010) the government charged Mr. Carothers only with the greater offense, possession of methamphetamine with the intent to distribute. Mr. Carothers timely elected an "unable to agree" lesser-included offense instruction as allowed by United States v. Jackson, 726 F.2d 1466, 1469 (9th Cir. 1984). The jury deadlocked on the greater distribution offense, but agreed on Mr. Carothers' guilt on the lesser possession offense. The government objected to the Court receiving a verdict on the lesser-included offense, so the Court did not receive or enter a verdict on it. Under Jackson, the government is now barred from retrying Carothers on the greater offense.

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265.2 - Evidence Required For Lesser Offense Instruction
The Shellow Instructions
Judge’s Submission Of Alternative Offenses
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F 17.10 - Conviction of Lesser Offense
F 3517 Inst 6 - Definition Of Greater Offense Should Include Elements Of Lesser Offense Which The Prosecution Must Negate

Uncharged Lesser Included: Defendant’s Right To An “Unable To Agree” Instruction (9th Circuit)

In United States v. Jackson, 726 F.2d 1466, 1469 (9th Cir. 1984), the Ninth Circuit considered the order in which juries should address greater and lesser-included offenses. The government had charged the defendant with an offense that included a lesser offense. Id. Before trial, the defendant requested an instruction allowing the jury to render a verdict on the lesser-included offense if the jurors were unable to agree on the greater offense (the "unable to agree" instruction). Id. The district court rejected the request and instead instructed the jurors that they could not render a verdict on the lesser-included offense unless they first unanimously acquitted the defendant of the greater offense (the "acquit first" instruction). Id. The Ninth Circuit held that the district court should have given the "unable to agree" instruction because the defendant timely requested it. Id.

In considering whether the defendant had a right to the "unable to agree" instruction, the Ninth Circuit weighed the advantages and disadvantages for the defendant and the government of each instruction. Id. The disadvantage to the defendant and the advantage to the government of the "acquit first" instruction is clear: "If the jury is heavily for conviction on the greater offense, dissenters favoring the lesser may throw in the sponge rather than cause a mistrial that would leave the defendant with no conviction at all, although the jury might have reached sincere and unanimous agreement with respect to the lesser charge." Id. (quoting United States v. Tsanas, 572 F.2d 340, 346 (2nd Cir. 1978)). Thus, in some cases, the "acquit first" instruction could harm the defendant by leading to a conviction on the greater, whereas under the "unable to agree" instruction, the defendant would have been convicted only of the lesser-included offense. Id. In weighing these tradeoffs, the Ninth Circuit decided that the benefit to the defendant of the "unable to agree" instruction far outweighed the disadvantage to the government: "It is [the defendant's] liberty that is at stake, and the worst that can happen to the Government under the less rigorous instruction is his readier conviction for a lesser rather than a greater crime." Id. The Ninth Circuit reasoned that these concerns were exactly the same as those the Supreme Court discussed in Beck and Keeble, when it held that defendants have the right to a lesser-included offense instruction even when charged only with the greater offense. Id. at 1470. An "unable to agree" instruction, the Ninth Circuit concluded, "ensures that the jury will accord the defendant the full benefit of the reasonable-doubt standard." Ibid., see also United States v. Carothers, 697 F. Supp. 2d 1160, 1163-1164 (C.D. Cal., No. CR 08-01299-CJC, March 22, 2010).

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4.2.3.2 - Failure To Object To Acquittal First Instruction As Ineffective Assistance Of Counsel
275.4 - Lesser Included Offenses: Deliberation And Verdict: The Acquittal First Rule
275.4.2 - Alternatives To Acquittal First Instruction
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F 17.10 n5 - Acquittal First Instruction Implicates Federal Constitutional Rights
F 17.10 n8 - Constitutional Challenge To Acquittal First Rule
F 17.10b - Jury Should Be Instructed Upon Partial Verdict
F 640 Note 2 - Additional Acquittal First Issues

Erroneous Instruction In Close Case Undermines The Fairness And Integrity Of The Trial (8th Circuit)

In United States v. Wisecarver, 598 F.3d 982, 989-990 (8th Cir. S.D., No. 09-1954, March 22, 2010)  the judge gave an erroneous supplemental instruction on self defense in a case which the reviewing court described as “somewhat close.”  The 8th Circuit reversed:

Given the high importance placed on jury instructions and on the words of the district court and the fact that the erroneous instruction was a supplemental one, in combination with the already somewhat close case, there is a reasonable probability that, but for the erroneous supplemental instruction, the outcome would have been different. . . . Because of the erroneous supplemental jury instruction, the probability of a different outcome is such that our confidence in the guilty verdict is undermined.

Finally, because the jury instruction was given in a close case, in which Wisecarver was found not guilty of the assault charge and found guilty of the depredation charge only after the erroneous supplemental instruction was given, we conclude that the fairness and integrity of the trial was seriously affected. See United States v. Rush-Richardson, 574 F.3d 906, 913 (8th Cir. Iowa 2009) (noting that a plainly erroneous jury instruction that was highlighted to the jury in a close case seriously affected the fairness and integrity of the trial). We conclude the district court committed plain error in giving the supplemental instruction, and Wisecarver's conviction on the depredation count should be reversed and remanded.

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297.2.4 - Prejudice On Appeal: Misinstruction On A Vital Issue In A Close Case
297.2.10 - Prejudice On Appeal: Correct Preliminary Instruction Does Not Cure Error
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
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PG X(E)(4) - Misinstruction On A Vital Issue In A Close Case
PG X(E)(10) - Correct Supplemental Instruction Does Not Cure Error
PG X(E)(12)(a) - Verdict After Jury Hears Erroneous Instruction
PG X(E)(13) - Return Of Verdict By Previously Deadlocked Jury
PG X(E)(20) - Erroneous Instruction As To One Charge May Be Prejudicial As To Others
PG X(G) - Effect of Argument on Instructional Error

Erroneous Supplemental Instruction Not Cured By Earlier Correct Instructions: “Judge’s Last Word Is Apt To Be The Decisive Word” (8th Circuit)

In United States v. Wisecarver, 598 F.3d 982, 989-990 (8th Cir. S.D., No. 09-1954, March 22, 2010)  the judge gave an erroneous instruction on self defense in response to the deliberating jurors’ request for an instructional clarification.  Even though defense counsel failed to object to the erroneous instruction the 8th Circuit reversed under plain error review due to the critical importance of supplemental instructions:

As has been repeatedly emphasized, the words that a judge says, particularly to a jury, are very important. It is axiomatic "that jurors are presumed to follow the court's instructions." United States v. Espinosa, 585 F.3d 418, 429 (8th Cir. 2009). Further, the Supreme Court has explained, "'[t]he influence of the trial judge on the jury is necessarily and properly of great weight,' and jurors are ever watchful of the words that fall from him." Bollenbach v. United States, 326 U.S. 607, 612, 66 S. Ct. 402, 90 L. Ed. 350 (1946) (quoting Starr v. United States, 153 U.S. 614, 626, 14 S. Ct. 919, 38 L. Ed. 841 (1894)). "Particularly in a criminal trial, the judge's last word is apt to be the decisive word. If it is a specific ruling on a vital issue and misleading, the error is not cured by a prior unexceptionable and unilluminating abstract charge." Id. Thus, the fact that the district court initially properly instructed the jury is insufficient to cure the error, especially because this supplemental instruction was in response to a specific question posed by the jury. "'When a jury explicitly requests a supplemental instruction, a trial court must take great care to ensure that any supplemental instructions are accurate [and] clear.'" United States v. Jenkins-Watts, 574 F.3d 950, 964 (8th Cir. 2009) (quoting United States v. Garcia, 562 F.3d 947, 957 (8th Cir. 2009) (emphasis added), petition for cert. filed, 130 S. Ct. 1915, 78 U.S.L.W. 3547, 176 L. Ed. 2d 387, 2010 U.S. LEXIS 2471 (U.S. Jan. 22, 2010) (No. 09-8991). "Discharge of the jury's responsibility for drawing appropriate conclusions from the testimony depended on discharge of the judge's responsibility to give the jury the required guidance by a lucid statement of the relevant legal criteria. When a jury makes explicit its difficulties a trial judge should clear them away with  concrete accuracy." Bollenbach, 326 U.S. at 612-13.

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

Forecite National™
297.2.10 - Prejudice On Appeal: Correct Preliminary Instruction Does Not Cure Error
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)(10) - Correct Supplemental Instruction Does Not Cure Error
PG X(E)(12)(a) - Verdict After Jury Hears Erroneous Instruction
PG X(E)(13) - Return Of Verdict By Previously Deadlocked Jury
PG X(E)(20) - Erroneous Instruction As To One Charge May Be Prejudicial As To Others
PG X(G) - Effect of Argument on Instructional Error