Judge’s Refusal To Accept Jurors’ Partial Verdict Was Prejudicially Coercive (New York)

In People v. Rivera, 2010 NY Slip Op 3800, 4 (N.Y., No. 72, 5/6/2010) the jury informed the trial judge that it had reached a partial verdict as to five of the eleven counts submitted to it. The judge ordered the jury to render its partial verdict, which the foreperson announced in open court. However the judge refused to accept the partial verdict on the five counts as requested by the defense, and ordered the jury to resume deliberations on the entire case.  The reviewing court held that the judge’s refusal to accept the partial verdict failed to ensure that jury deliberations are conducted in secret, and not influenced or intruded upon by outside factors: “This case makes clear why the secrecy and independence of jury deliberations must be vigilantly protected. If the trial court finds out where the jury stands on a particular count and then orders the jury to deliberate further on that count, the trial court effectively, even though inadvertently, inserts itself into the jury's deliberations. The mere possibility of a trial court exerting such influence over the jury is improper and at odds with the strong public policy that jury deliberations should  be confidential and free from outside interference, and has the potential to render a defendant's right to a trial by jury meaningless.”

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287.4 - Partial Verdict

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F 17.55 n3 - Deadlock Instructions: Improper To Foreclose Partial Verdict

F 3517 Inst 3 - Jury Should Be Instructed Upon Partial Verdict

Felony Murder Based On Aiding And Abetting: Need For Specific Tailored Instructions (Michigan)

In a concurring opinion in People v. Maxey, [UNPUBLISHED] (Mich. Ct. App., No. 289023, May 6, 2010), Justice Shapiro explained the need for clear, tailored instructions when explaining the complex intent requirements for felony murder based on aiding and abetting:

“I write separately to express my concern that our present jury instructions create a risk of wrongful conviction where the charge is aiding and abetting a felony murder. Both the felony murder and aiding and abetting instructions allow for conviction under a complex, and arguably relaxed, intent standard. The jury instructions for felony murder and aiding and abetting were written generally, so as to apply to all such cases. Given the general nature of their construction, there is, in my view, a significant risk that when these two instructions are both given in the same case, the jury may find it difficult to understand what level of intent the defendant must have actually had, or that the defendant understood that his co‑perpetrator had, in order to be convicted. I believe this can be remedied by the adoption of a separate and specific instruction to be used in cases where felony murder is charged on an aiding and abetting theory. While the law presumes that jurors follow their instructions, People v Graves, 458 Mich. 476, 486, 581 N.W.2d 229 (1998), it seems imprudent to accept as sufficient a set of instructions that, even to the experienced student of law, seems confusing. The need for a clear instruction is even more vital where, as here, the sentence is mandatory life without parole.”  [NOTICE: This opinion is UNPUBLISHED.]

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5.2.7 - Reference To Specific People Or Facts

Chapter 64: Accomplice Liability

64.3 - Accomplice Liability: Guilt Of Perpetrator As Required Element

92.9.4.11 - Accomplice Liability For Felony Murder: Intent To Aid And Abet Must Be Formed Before Or During The Killing

The Shellow Instructions

Aiding And Abetting

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PG V(C) - Correction Of Defects

F 253 Inst 3 - Instruction Should Be Tailored To Facts

CG 3.7 - Failure To Tailor Elements To The Facts And Charge

Claim Of Right May Negate Larcenous Intent Even If Defendant Did Not Own The Property (New York)

People v. Zona, 2010 NY Slip Op 3801, 5 (N.Y., No. 73, 5/6/2010) rejected the notion that a defendant must establish that he previously owned or possessed the property at issue in order to assert the claim of right defense. Rather, the New York statute, merely requires a good‑faith belief "that the property was appropriated under a claim of right." Penal Law § 155.15 [1]. Other New York decisions reflect this interpretation. For example, in People v Ricchiuti (93 AD2d 842, 461 N.Y.S.2d 67 [2d Dept 1983]), the defendant, an employee of a cosmetics company was indicted for grand larceny for allegedly stealing large quantities of merchandise from his employer. At trial, defendant did not attempt to establish his ownership in the company's merchandise, but rather offered evidence that his employer authorized him to distribute unlimited quantities of the merchandise to various charities, vendors, and friends of the company. The Appellate Division determined that the evidence supported a claim of right defense and reversed the judgment of conviction because Supreme Court did not instruct the jury accordingly. (Id. at 844; see also People v Ace, 51 AD3d 1379, 1380, 856 N.Y.S.2d 792 [4th Dept 2008] [conviction overturned where "a reasonable view of the evidence that would enable a jury to find that defendant took the rails under a claim of right" established after defendant's employer instructed him to take the employer‑owned rails to a scrap yard].

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100.1.10.3 - Applicability Of Claim Of Right To Robbery

103.1.3.1 - Claim Of Right As Defense Theory To Theft/Larceny

252.5 - Claim Of Right

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F 9.40a - Claim Of Right: Defense To Robbery/Theft Where Defendant Seeks To Regain Specific Property (PC 211)

F 9.40b - Claim Of Right On Behalf Of Another (PC 211)

F 1800 Note 2 - Theft: Claim Of Right Defense To Theft (PC 484 & PC 487)

F 1863 - Defense To Theft Or Robbery: Claim of Right (PC 511)

Sample Curative Instruction When Prosecutor Improperly Urges Jurors To Put Themselves “In The Shoes Of The Victim, Witness Or Defendant” (New Jersey)

Ladies and gentlemen, you are not to put yourselves in the shoes of anyone, a witness, a defendant, anyone whatsoever. You are not to decide this case using any passion, or bias, or prejudice, or any preconceived ideas about anything. You are to decide this case based on the evidence that you hear. So the comment that was made about putting yourself in the shoes of _______ <insert name of victim, witness, or defendant> is being stricken from the record. 

Source: Given in State v. Santiago, (App.Div., No. A‑1006‑08T4, May 3, 2010) [NOTICE: This opinion is UNPUBLISHED.]

CAVEAT: This instruction may not be appropriate as to issues involving objective reasonableness which require a determination of how a reasonable person in the same or similar circumstances would have acted.

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303.3.10 - Death Penalty: Jurors Must Not Place Themselves "In The Shoes" Of The Victim Or Defendant

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F 8.85 n19 - Instruction That Jurors Cannot Place Themselves In The Shoes Of The Victim Or Defendant

Supplemental Instructions: Judge's Response To Juror Questions Amended The Charges (New Hampshire)

When deliberating jurors inquire as to which specific acts are charged the judge’s response must be carefully crafted to correlate with the charging documents. Otherwise there is a danger of constructively amending the charges.  For example, in State v. Kelly, 160 N.H. 190, 196 (N.H., No. 2008‑672, 5/6/2010) the judge “impermissibly amended the complaint when it told the jury to ‘consider all of the evidence that was admitted at trial in deciding whether the State has proven the elements of the crime beyond a reasonable [doubt]’ in response to the jury's . . . question. The trial court's answer effectively expanded the scope of the charge. . . .”  Similarly State v. Poole, 150 N.H. 299, 837 A.2d 307 (2003) held that the trial court's answer to a jury question impermissibly amended the complaint to the defendant's prejudice. In Poole, the complaint alleged that the defendant committed the crime of simple assault on December 22, 2001, at 7:00 p.m., but at trial the defendant presented an alibi for this time frame. Id. at 300‑01. During deliberations, the jury asked, “[I]f we think the crime happened, but not necessarily on that date, are we permitted to consider this line of reasoning?” Id. at 301. The trial court replied that “the date is not an element of the crimes charged”; and therefore, “you may find the defendant guilty of the crime with which he is charged, even if you find that the state was mistaken as to the specific date or time.” Id. This answer prejudiced the defendant because in preparing his defense he had relied upon the date specified in the complaint. Id. at 302.

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Chapter 40: Variance Between Pleading And Proof

300.2.1 - Charging Variance: Instruction On Uncharged Theory Violates Notice/Due Process Principles And Right To Effective Assistance Of Counsel

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

The Shellow Instructions

Defendant Not On Trial For Any Act Or Conduct Not Alleged In Charging Document

Variance Between Pleading And Proof

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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

F 207 Note 1 - Time of Crime: Effect Of Accusatory Pleading And Proof

F 207 Note 2 - Time of Crime: Request For Continuance Necessary To Preserve Variance Issue

CG 6.1 - Due Process And Notice—Generally

Lack Of Rape Examination As Basis For Requesting Missing Evidence Instruction (Montana)

In State v. Taylor, 2010 MT 94, P21‑P22 (Mont., No. DA 09‑0246, 5/4/2010) Taylor claimed that the lack of a rape exam was highly prejudicial and Taylor's counsel should have capitalized on this lack of evidence by seeking a reduced charge of misdemeanor sexual assault and, failing that, should have sought a missing evidence jury instruction. 

Defense counsel had originally requested a missing evidence instruction but later withdrew that request. Because the  record provided no explanation regarding defense counsel's reasons for withdrawing the proposed instructions, the reviewing court concluded that the matter should be raised in a post-conviction hearing to determine why counsel chose to proceed as he did.

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Chapter 36: Missing, Lost, Destroyed Or Suppressed Evidence

36.2.2.10 - Weaker Or Less Satisfactory Evidence Offered By Prosecution: Consideration Of Power Of State To Gather And Produce Evidence

The Shellow Instructions

Missing/Lost/Destroyed Evidence

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F 2.014 - When Prosecution Loses Or Destroys Evidence

F 2.11c - Weaker Or Less Satisfactory Evidence

F 2.11d - Production of All Evidence:  Availability Of Witness To Prosecution

Sample Instruction: Other Bad Acts Not Applicable To All Counts (Mississippi)

You are not, however, under any circumstances, to consider any evidence of alleged prior cocaine sales in reaching a verdict as to the charge of Sale of Cocaine as charged in Count I of the indictment, or for any other purpose not specifically authorized by this instruction.

Source: Given in Long v. State, 33 So. 3d 1122, 1127 (Miss., No. 2008‑KA‑01877‑SCT, 5/6/2010).

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26.5 - Uncharged Acts To Prove Issues Other Than Propensity

26.5.3 - Uncharged Acts: Limiting Instructions

The Shellow Instructions

Limited Purpose Evidence: Uncharged Offenses And Acts

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F 375 - Evidence of Uncharged Offense to Prove Identity, Intent, Common Plan, Etc.

Sample Instruction: Other Acts Evidence – Video Taped Consensual Sex (Minnesota)

[The videotapes are] being offered only for whatever relevance [they] may have as to whether [appellant] committed on April 25, 2006[,] the act with which he is charged in the complaint. [Appellant] is not being tried for and may not be convicted of any conduct other than that alleged in connection with the April 25, 2006 charge. You are not to convict [appellant] on the basis of any judgment you may have or you may make regarding the morality or ethics of his actions on April 25, 2006 or any other date.

Source: Approved in State v. Mathias, (Minn. Ct. App., No. A09‑955, May 4, 2010). [NOTICE: This opinion is UNPUBLISHED.]

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26.5 - Uncharged Acts To Prove Issues Other Than Propensity

26.5.3 - Uncharged Acts: Limiting Instructions

The Shellow Instructions

Limited Purpose Evidence: Uncharged Offenses And Acts

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F 375 - Evidence of Uncharged Offense to Prove Identity, Intent, Common Plan, Etc.

Waiver Of The “Mere Presence” Instruction (Michigan)

The mere presence jury instruction applies where a defendant is charged with an aiding and abetting crime. See People v Wilson, 196 Mich App 604, 614; 493 NW2d 471 (1992).  However, counsel may waive that instruction for strategic reasons.  See People v. Clark, 2010 Mich. App. LEXIS 791, 4‑7 (Mich. Ct. App., No. 289206, May 4, 2010).  [NOTICE: This opinion is UNPUBLISHED.]

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4.3.2.3 - Cautionary/Limiting Instruction Should Not Be Given Over Defendant's Objection: Defendant May Waive Benefits

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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 Who Benefits From The Instruction

F 3.01i - Mere Presence Which Assists Commission Of The Crime Is Not Aiding And Abetting

Sexual Abuse Expert: Limiting Instructions (Michigan)

People v. Valentine, [UNPUBLISHED] (Mich. Ct. App., No. 289853, May 4, 2010) concluded that the trial court properly instructed the jury regarding the testimony of a sexual abuse expert (Dr. Henry):

“The trial court instructed the jury at the beginning of trial that it had the responsibility to decide what the facts of the case were by thinking about all the evidence and testimony and deciding ‘what each piece of evidence means and how important you think it is.’ The court then instructed the jury during Dr. Henry's testimony that his testimony was based on the hypothetical scenarios presented to him and would not necessarily reflect what later testimony would actually establish. At the end of trial, the court again instructed the jury that it had the authority to decide what the facts of the case were and that it could accept or reject any testimony of any witness. It then reminded the jury that although expert witnesses were permitted to give their opinions in court on matters related to their areas of expertise, the jury had no obligation to believe the expert's opinion. Instead, the jury was instructed to ‘decide whether you believe it and how important you think it is,’ taking into account the expert's qualifications and ‘the reasons and facts they gave for their opinion and whether those facts are true.’ Finally, the court instructed the jury that Dr. Henry's testimony concerning the behavior of sexually abused children could be considered only to determine whether the victim's words and actions after the alleged abuse occurred were consistent with those of sexually abused children; it could not be used to show that defendant abused the victim or as an indication that Dr. Henry believed that the victim was telling the truth.” [NOTICE: This opinion is UNPUBLISHED.]

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29.1.20 - Challenging Child Abuse Experts

29.2 - Instruction On Expert Testimony

29.2.11 - Child Abuse Expert ‑‑ Limiting Instruction

101.4.2.4 - Lewd Act With Child: Child Abuse Expert ‑‑ Limiting Instruction

The Shellow Instructions

Expert Witnesses

Evidence: Limiting Instructions

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F 332 - Expert Witness Testimony

F 332 Note 2 - Sua Sponte Duty To Limit Child Abuse Expert Testimony

Presumption That Jurors Follow The Instructions – Not The Arguments Of Counsel (Michigan)

An erroneous legal argument made by the prosecutor can potentially be cured if the jury is correctly instructed on the law, People v Grayer, 252 Mich App 349, 357; 651 NW2d 818 (2002), because "[i]t is well established that jurors are presumed to follow their instructions," People v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998); People v. Valentine, (Mich. Ct. App., No. 289853, May 4, 2010). [NOTICE: This opinion is UNPUBLISHED.]

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297.1 - General Rules In Evaluating Prejudicial Effect Of Instructions

297.1.3 - Jurors Presumed To Follow Instructions Rather Than Argument Of Counsel

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PG X(G) - Effect of Argument on Instructional Error

PG X(G)(2) - Jurors Presumed To Follow The Law Instead Of Argument:

New York Court Holds That Judge’s Failure To Instruct Sua Sponte On Claim Of Right Was Reversible Error (New York)

People v. Zona, 2010 NY Slip Op 3801, 5 (N.Y., No. 73, 5/6/2010) concluded that the evidence, viewed in the light most favorable to defendant, entitled the defendant to assert a good‑faith claim of right defense at trial. Since the judge erred in failing to instruct the jury on this defense, the defendant was prejudicially deprived of a fair trial. 

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100.1.10.3 - Applicability Of Claim Of Right To Robbery

103.1.3.1 - Claim Of Right As Defense Theory To Theft/Larceny

252.5 - Claim Of Right

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F 9.40a - Claim Of Right: Defense To Robbery/Theft Where Defendant Seeks To Regain Specific Property (PC 211)

F 9.40b - Claim Of Right On Behalf Of Another (PC 211)

F 1800 Note 2 - Theft: Claim Of Right Defense To Theft (PC 484 & PC 487)

F 1863 - Defense To Theft Or Robbery: Claim of Right (PC 511)

Flight May Be Due To Panic, Mistake, Or Fear: Sample Instruction (Michigan)

There's some evidence that the defendant tried to run away after the alleged crime and this evidence does not prove guilt. A person may run or hide for innocent reasons such as panic, mistake or fear. However, a person may also run or hide because of what we call consciousness of guilt. You must decide whether the evidence is true and, if true, whether is shows the defendant had a guilty state of mind.

Source: Given in People v. Bass, (Mich. Ct. App., No. 289299, No. 289875, May 6, 2010).  [NOTICE: This opinion is UNPUBLISHED.]

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Chapter 34: Consciousness Of Guilt

34.3 - Flight

35.1 - Instruction On Consciousness Of Innocence, Absence Of Flight; Voluntary Surrender, Consent To Search, Etc.

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F 2.52 - Flight

F 372 - Defendant's Flight 

Possession: Nonexclusive Possession Of Automobile

When a defendant is in nonexclusive possession of an automobile in which a controlled substance is found, it cannot be inferred that the defendant knowingly possessed the controlled substance unless there are other circumstances linking the defendant to the controlled substance. Factors you may consider in determining whether the defendant knowingly possessed the controlled substance include: Defendant's proximity to the area where the controlled substance was found.

Source: Given in State v. Siebold, 2010 Kan. App. Unpub. LEXIS 332, 229 P.3d 420 (Kan. Ct. App., No. 101,687, 5/6/2010). [NOTICE: This opinion is UNPUBLISHED.]

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Chapter 56: Possession

The Shellow Instructions

Possession

Drugs, Controlled Substances: Possession

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F 1.24 - Possession

F 3306 - Possession Based Offenses—Defense Theories

Sample Instruction: Possession Defined In Terms Of Knowledge, Intent, Control, And Access

Possession may be immediate and exclusive, jointly held with another, or constructive. Constructive possession is knowingly keeping a controlled substance in a place to which the defendant has some measure of access and right of control.

Source: Given in State v. Siebold, 2010 Kan. App. Unpub. LEXIS 332, 229 P.3d 420 (Kan. Ct. App., No. 101,687, 5/6/2010). [NOTICE: This opinion is UNPUBLISHED.]

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Chapter 56: Possession

The Shellow Instructions

Possession

Drugs, Controlled Substances: Possession

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F 1.24 - Possession

F 3306 - Possession Based Offenses—Defense Theories

Sample Instruction: “Intentionally” Defined (Indiana)

A person engages in conduct "intentionally" if, when he engages in conduct, it is his conscious objective to do so.

Source: Given in Lines v. State, (Ind. Ct. App., No. 35A05‑0910‑CR‑583, May 5, 2010). [NOTICE: This opinion is UNPUBLISHED.]

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3.2.6 - Duty To Define Terms With Specialized/Technical Meaning; No Duty To Define Common Terms

46.2 - Willfully Defined: Intent To Violate The Law

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PG V(A)(8) - Terms With Specialized/Technical Meaning:  Sua Sponte Duty to Define

Third Party Statement Admitted For Non-Hearsay Purpose: Whether Limiting Instruction Is Required Sua Sponte (Delaware / District of Columbia)

Some jurisdictions have required a limiting instruction when third‑party statements are admitted for non‑hearsay purposes. See, e.g., Sanabria v. State, 974 A.2d 107, 116 (Del. Super. Ct. 2009) ["[I]f the trial court concludes that the probative value of the background information is not substantially outweighed by its unfair prejudice to the defendant and decides to admit a third‑party statement into evidence, the admission of the background information must be accompanied by a limiting instruction to the jury"]. Others have not adopted such a per se rule.  See Johnson v. United States, 387 A.2d 1084, 1087 (D.C. 1978) (en banc) [explicitly rejecting rule that the trial court has "an absolute sua sponte obligation to issue an immediate cautioning instruction whenever evidence is brought in which is admissible only for a limited purpose"].

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4.3.2 - Cautionary And Limiting Instructions: Requests And Objections

251.9.3 - Third Party Guilt: Right To Related Instructions (Flight, Motive, Etc.)

The Shellow Instructions

Evidence: Limiting Instructions

Hearsay And Extra Judicial Statements

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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 Who Benefits From The Instruction

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

F 303 - Limited Purpose Evidence In General

Instruction On Flight: Motivation Consistent With Innocence (District Of Columbia)

In Gaines v. United States, 994 A.2d 391, 402 (D.C., No. 07‑CF‑1103, 5/6/2010) the judge gave the following non-pattern instruction on flight:

A person who flees or hides after a crime has been committed or after he has been accused of a crime may be motivated by a variety of factors. You may, for example, consider flight or concealment as a circumstance tending to show feelings of guilt, and you may consider feelings of guilt as tending to show actual guilt. On the other hand, flight or concealment does not create a presumption of guilt, nor does it necessarily reflect that the person has feelings of guilt. You may not, therefore, presume a defendant is guilty merely because he fled or concealed himself.

If you find evidence of flight or concealment, you should consider and weigh such evidence along with all the other evidence in the case and give it the weight you think it deserves.

The reviewing court held that this instruction was “incomplete” and erroneous because it failed “to state that flight may be motivated by factors that are fully consistent with innocence. Ibid.”

An instruction on flight must give the jury a full explanation of the variety of motives and feelings that might prompt a person to flee.  Ibid.; see also Austin v. United States, 414 F.2d 1155, 1157‑58, 134 U.S. App. D.C. 259 (D.C. Cir. 1969).

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Chapter 34: Consciousness Of Guilt

34.3 - Flight

35.1 - Instruction On Consciousness Of Innocence, Absence Of Flight; Voluntary Surrender, Consent To Search, Etc.

The Shellow Instructions

No Inference Of Guilt From Flight

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F 2.52 - Flight

F 372 - Defendant's Flight 

Sample Instruction: Entrapment Predisposition – Whether Evidence “Leaves” The Jury With A Reasonable Doubt

Defendant would not be a victim of entrapment if you should find, beyond a reasonable doubt, that the Defendant, before contact with Government officers or cooperating individuals, was ready, willing and able to commit the crime charged in the Indictment whenever opportunity was afforded and that the Government did no more than offer an opportunity.

On the other hand, if the evidence in the case leaves you with a reasonable doubt whether the Defendant had any intent to commit the crime except for inducement or persuasion on the part of some Government officer or cooperating individuals, then it is your duty to find the Defendant not guilty.

Source: Given in United States v. Salesman, 2010 U.S. Dist. LEXIS 53594, 3‑4 (S.D. Fla., No. 09‑60316‑CR‑COHN, May 3, 2010).

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36.1.8 - Reasonable Doubt May Be Based On Destruction, Loss Or Suppression Of Material Evidence Alone [See Use Note]

88.1.4 - Drugs, Controlled Substances: Defense Of Entrapment

257.3 - Entrapment

The Shellow Instructions

Entrapment

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PG IX(J)(5) - Failure Of Jury To Agree Upon Entrapment

F 4.60 - Entrapment

F 1000 Note 5 - Sex Crimes: Entrapment (PC 261 & PC 263)

F 2300 Note 3 - Sale Of Drugs: Entrapment (HS 11352 & HS 11379)

F 2304 Note 6 - Possession: Entrapment (HS 11350 or HS 11377)

F 3408 - Entrapment

Sample Instruction: Reasonable Doubt And Burden Of Proof

You must presume the defendants to be innocent of the crimes charged. Thus, the defendants, although, accused of crimes in the indictment, begin the trial with a clean slate, with no evidence against them. The indictment, as you already know, is not evidence of any kind.

The defendants, of course, are not on trial for any act or crime not contained in the indictment. The law permits nothing but legal evidence presented before the jury in Court to be considered in support of any charges against the defendants. The presumption of innocence alone, therefore, is sufficient to acquit the defendants.

The burden is always on the prosecution to prove guilt beyond a reasonable doubt. This burden never shifts to a defendant, because the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence. A defendant is not even obligated to produce any evidence by cross‑examining the witnesses for the government.

It is not required, however, that the government prove guilty beyond all possible doubt. The test is one of reasonable doubt. A reasonable doubt is a doubt based upon reason and common sense, the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt must, therefore, be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it in the most important of his or her own affairs.

Unless the government proves, beyond a reasonable doubt, that defendants have committed each and every element of the offenses charged in the indictment, you must find the defendants not guilty of the offenses. If you, the jury, view the evidence in the case as reasonably permitting either of two conclusions, one that the defendant is not guilty and the other that he is guilty, you must return a verdict of not guilty.* You must remember that a defendant is never to be convicted on mere suspicion or conjecture.

*This sentence has been modified to eliminate reference to innocence versus guilt per United States v. Jacobs, 44 F.3d 1219 (3d Cir. Pa. 1995).

Source: United States v. Bell, (W.D. Pa., No. 02:04‑cr‑0212,02:09‑cv‑0739, May 3, 2010).

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Chapter 270: Burdens And Standards Of Proof

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PG VII(C) - Substantive Federal Constitutional Issues

F 103 - Reasonable Doubt

Health Care Fraud (18 USC 1347): Knowledge That Conduct Was Unlawful (9th Circuit / 10th Circuit)

Two circuits have defined the term "willfully," in the context of health care fraud, to require a showing that the defendant acted with knowledge that his or her conduct was unlawful. See, e.g., United States v. Awad, 551 F.3d 930, 938‑41 (9th Cir. 2009); United States v. Franklin‑El, 554 F.3d 903, 908 (10th Cir. 2009)   (defendant acted with knowledge that conduct was unlawful by billing for services not rendered and including other false information on claim forms). The instructions in Awad stated under these decisions it is erroneous to instruct  that: "The government is not required to prove that the defendant knew that his acts or omissions were unlawful." Awad, 55 F3d at 939.

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Chapter 46: Willfulness

Chapter 47: Knowledge

The Shellow Instructions

Basic Elements Of A Criminal Allegation: Knowledge

Basic Elements Of A Criminal Allegation: Willfulness

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F 1.20 - Willfully Defined

F 1.21  - Knowingly Defined

F 250 Inst 2 - General Intent: Knowledge Element

No Federal Constitutional Right To Lesser Included Offenses In Non-Capital Case (6th Circuit)

In noncapital cases, the Constitution does not require a jury instruction on a lesser included offense according to the 6th Circuit. See Campbell v. Coyle, 260 F.3d 531, 541 (6th Cir. 2001).  Applying this standard, the Court has routinely denied habeas petitions based on a failure to give such an instruction. See, e.g., Dansby v. Trombley, [UNPUBLISHED] No. 08‑1964, 369 Fed. Appx. 657, (6th Cir. Mar. 15, 2010) ("Dansby's claim fails because the Supreme Court has never held that due process requires the giving of jury instructions on lesser‑included offenses in noncapital cases."); Tegeler v. Renico, [UNPUBLISHED] 253 Fed. App'x 521, 524‑25; 2007 U.S. App. LEXIS 26004; 2007 FED App. 0771N (6th Cir. 2007) ("'[T]he Constitution,' we have held, 'does not require a lesser‑included offense instruction in non‑capital cases.'") (quoting Campbell, 260 F.3d at 541); Scott v. Elo, 302 F.3d 598, 606 (6th Cir. 2002) ("[T]he Sixth Circuit has held that failure to instruct on a lesser included offense in a noncapital case is not 'such a fundamental defect as inherently results in a miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure.'") (quoting Bagby v. Sowders, 894 F.2d 792, 797 (6th Cir. 1990)).

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Chapter 265: Lesser Included Offenses: General Principles

300.7 - Failure To Instruct On Lesser Included Offenses In Noncapital Case

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PG VII(C)(13) - Failure To Instruct On Lesser Included Offenses In Noncapital Case

LIO II - Duty to Instruct

Felon In Possession Of Firearm (18 USC 922(g)(1)): Justification Defense (8th Circuit)

The 8th Circuit has never found that a defendant met the required burden to raise the justification defense in cases involving 18 USC 922(g), including 18 USC 922(g)(1). The Court has "assume[d]," without deciding, that a justification defense is "cognizable in cases involving 18 USC 922(g)." United States v. Redding, 16 F.3d 298, 300 (8th Cir. 1994). However, in each instance in which the Court discussed the defense it did not reach the issue of the availability of the defense because the defendant had not met one or more of the required elements. See, e.g., United States v. Harper, 466 F.3d 634, 648 (8th Cir. 2006); United States v. Poe, 442 F.3d 1101, 11034 (8th Cir. 2006); United States v. Gamboa, 439 F.3d 796, 816 (8th Cir. 2006); United States v. Bell, 411 F.3d 960, 964 (8th Cir. 2005); United States v. Luker, 395 F.3d 830, 832‑33 (8th Cir. 2005); United States v. Taylor, 122 F.3d 685, 688‑89 (8th Cir. 1997); United States v. Lomax, 87 F.3d 959, 961 (8th Cir. 1996); United States v. Martin, 62 F.3d 1009, 1011 (8th Cir. 1995). Accordingly, its treatment of the issue appears to assume that the defense is available in a 18 USC 922(g) case if the high burden can be met.

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

Forecite NationalÔ

107.3.6 - Exfelon In Possession Of Firearm: Justification As Defense

Chapter 253: Justification: Self Defense, Defense Of Others, Parental Discipline, Etc.

Forecite CaliforniaÔ

F 4.009a - Concealed Or Loaded Firearm: Justification ‑‑ Grave Danger (PC 12025, PC 12025.5 & PC 12031)

Series 2500 Weapons

Preponderance Of Evidence Defined In Terms Of Outweighing Proof To The Contrary (New York)

The pattern instruction which defines preponderance of the evidence in New York (CJ I 2nd Defense: Duress) uses language which requires the evidence to outweigh any proof to the contrary. This instruction was cited with approval in Szlekovics v. Fischer, (W.D.N.Y., No. 07‑CV‑6443(MAT).

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

Forecite NationalÔ

Volume 13: Burdens, Argument, Deliberation And Verdict (Chapters 270‑294)

270.6 - Reasonable Doubt Standard: Comparison With Lesser Standards

Forecite CaliforniaÔ

F 3403 Inst 1 - Preponderance Is Lesser Standard 

Circuit Conflict Regarding Alien Transportation Offenses (10th Circuit)

The Tenth Circuit's pattern jury instruction on transportation offenses under 18 USC 1324 is in tension with established law in all but three other federal circuits. See United States v. Franco‑Lopez, 709 F. Supp. 2d 1152, 1159‑1166 (D.N.M., No. CR 09‑672 MV, 5/5/2010).

Joinder: Limiting Instructions Most Effective When Evidence Of Each Crime Is “Simple And Distinct” (9th Circuit)

Instructions directing a jury to consider each count separately can limit any prejudice arising from the joinder of counts. Davis v. Woodford, 384 F.3d 628, 639 (9th Cir. 2004) Instructions are most effective "when the evidence of each crime is simple and distinct, even in the absence of cross admissibility." Ibid. [citation omitted]; see also Weeks v. Angelone, 528 U.S. 225 (U.S. 2000).

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

Forecite NationalÔ
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

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

Jury Instruction Regarding Judicial Notice (9th Circuit)

The consequences of taking judicial notice are significant. Judicial notice precludes either party from introducing evidence to disprove that fact. Rivera v. Phillip Morris, Inc., 395 F.3d 1142, 1151 (9th Cir. 2005). Where the trial court has taken judicial notice of a fact, the jury must be instructed to accept that fact as conclusive. FRE 201(g). The Ninth Circuit has accordingly urged the district courts to be cautious in taking judicial notice and to do so only when the matter is beyond controversy.

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

Forecite NationalÔ

24.2.4 - What Is Evidence: Judicial Notice

Forecite CaliforniaÔ

F 104.1 Inst 3 - Judicial Notice