Duress: Duty To Instruct (Tennessee)

“A criminal defendant is entitled to have the jury instructed on the defense of duress only if it is ‘fairly raised by the proof.’ [Citation.] Because duress is a general rather than an affirmative defense, a criminal defendant need not establish the elements of duress by a preponderance of the evidence in order to merit a jury instruction. Rather, if admissible evidence fairly raises its applicability, the trial court is required to submit the defense to the jury. State v. Hatcher, 310 S.W.3d 788, 817 (Tenn., No. W2006‑01853‑SC‑R11‑CD, 5/4/2010) [internal citations and quotation marks omitted].

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3.3.2 - Duty To Give Requested Defense Theory Or Pinpoint Defense Instructions

Chapter 250: Defenses And Defense Theories: General Issues

254.1 - Duress/Coercion

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PG V(B)(1.4) Duty To Instruct On Defense Theory: The Law Of The Case Doctrine

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

F 4.40 Duress

F 4.002 Duress To Negate Criminal Intent

F 3402 Duress Or Threats

F 3305 Inst 1 Duress To Negate Criminal Intent

Sample Instruction: No Inference From Expression On Judge’s Face (North Carolina)

The law, as indeed it should, requires the presiding judge to be impartial. You should not draw any inference from a ruling I have made, expression on my face, inflection in my voice, or anything I've said or done that I have any opinion about any aspect of this case. It is your exclusive province to find the facts of this case and to render a verdict reflecting the truth as you find it.

Source: Approved in State v. McCravey, 692 S.E.2d 409 (N.C. Ct., No. COA09‑712, App. 5/4/2010).

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16.14.3.6 - Jury Not to Consider Conduct of Judge

16.14.3.7 - Jury Not To Consider Gestures By The Judge

24.3.1.3 - Reaction To The Evidence By The Judge, Attorneys, Parties, Or Court Personnel Must Not Be Considered

The Shellow Instructions

No Intention To Influence Jury On Factual Matters

Jury As Sole Judge Of The Facts

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F 17.30 Jury Not To Take Cue From Judge

F 3530 Inst 4 Jury Not To Consider Gestures By The Judge

F 3530 Note 3 Jury Not To Take Cue From The Judge: Reactions To Evidence Must Be Disregarded

Duty Of Trial Judge To Give Complete Instructions (Tennessee)

“The general principle in criminal cases is that there is a duty upon the trial judge to give a complete charge of the law applicable to the facts of the case and the defendant has a right to have every issue of fact raised by the evidence and material to his defense submitted to the jury upon proper instructions by the judge.” State v. Hatcher, 310 S.W.3d 788, 815 (Tenn., No. W2006‑01853‑SC‑R11‑CD, 5/4/2010) [citation and punctuation omitted].

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Chapter 3: Duty Of Court Regarding Instructions

3.2.2  - Judge Has Ultimate Responsibility And Duty To Instruct On Legal Principles Applicable To The Case

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PG V Duties of the Court

Jury Instruction Is One Of The Trial Judge’s Most Important Functions (Tennessee)

“This Court long ago made clear that one of the most important functions of the Trial Judge is to select the rules of law which apply to the evidence given in the case on trial. And we have admonished that a trial court's jury charge should not contain inaccurate or inapplicable statements of legal principles that might tend to confuse the jury.” State v. Hatcher, 310 S.W.3d 788, 812 (Tenn., No. W2006 01853 SC R11 CD, 5/4/2010) [internal citations and punctuation omitted].

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Chapter 3: Duty Of Court Regarding Instructions
3.2.2 -  Judge Has Ultimate Responsibility And Duty To Instruct On Legal Principles Applicable To The Case

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PG V Duties of the Court

Pattern Instructions Should Be Used “Only After Careful Analysis” (Tennessee)

“As we have previously observed, pattern jury instructions are only suggestions for a trial court because they are not officially approved by this Court or by the General Assembly and should be used only after careful analysis.”  State v. Hatcher, 310 S.W.3d 788, 807 (Tenn., No. W2006‑01853‑SC‑R11‑CD, 5/4/2010) [internal citations and quotation marks omitted].

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1.3 - The Inherent Limitation Of Pattern Instructions

1.4.14 - Strategies For Persuading The Trial Judge To Modify Or Supplement The Pattern Instructions

3.2.2 - Judge Has Ultimate Responsibility And Duty To Instruct On Legal Principles Applicable To The Case

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PG I(B) Duty Of Court To Go Beyond The Standard Pattern Instructions

PG XI(A) Propriety Of Non‑CALCRIM Instructions

Sample Instruction: Diminished Capacity (Tennessee)

In this case you have heard that ________ <insert basis for diminished capacity> could have affected the defendant’s capacity to form the culpable mental state required to commit a particular offense.

If you find from the evidence that the defendant's capacity to form a culpable mental state may have been affected, then you must determine beyond a reasonable doubt what the mental state of the defendant was at the time of the commission of the offense to determine of which, if any, offense he is guilty. Moreover, if you find that the defendant's mental state did not rise to a justification for his participation in the crime, you may find the defendant guilty of a lesser‑included offense because the defendant was incapable of forming the requisite intent of the crime charge[d].

In other words, no person may be convicted of an offense unless the culpable mental state is proven beyond a reasonable doubt.

Source: State v. Hall, 958 S.W.2d 679 ([Tenn.] 1997).

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256.7 - Mental, Medical Or Physical Impairment Of Defendant

256.7.1.6 - Impact Of Abolition Of Diminished Capacity On Negation Of Mental Elements By Intoxication Or Mental Impairment

303.7.2.2 - Death Penalty: Mental Impairment Not Limited To Excuse Or Negation Of An Element

The Shellow Instructions

Jury Must Consider Defendant’s Mental Condition At The Time Of The Offense And Not Current Condition

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PG X(A)(12) Standard Of Review: Diminished Capacity

F 3.32 Mental Disease Or Defect

F 763.10 Death Penalty: Factors To Consider—Factor h: Diminished Capacity

Flight Instruction Requires Volitional Behavior By Defendant, Not Another Person (Washington/Arizona)

“Fundamentally, an inference of flight requires evidence of volitional behavior by the defendant, not another person. [Citation.]” State v. McDaniel, 155 Wn. App. 829, 854‑855 (Wash. Ct. App., No. 37323‑8‑II, 4/28/2010) [footnote omitted.]. For example, in State v. Salazar, 112 Ariz. 355, 356, 541 P.2d 1157 (1975), the Arizona Supreme Court concluded that “[t]he fact that the defendant is present as a passenger in the vehicle involved in the flight is not sufficient in and of itself to support the giving of an instruction on the ramifications of flight.” It explained why such a jury instruction was improper: “If [the defendant] had been the driver of the vehicle the resultant police chase would support an instruction on flight. However, to impute the actions of the driver to a passenger without evidence to show that he encouraged the flight would be creating a presumption which is controverted by the evidence.” Salazar, 112 Ariz. at 357.

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34.3 - Flight

34.3.7 - Flight: Required Preliminary Facts

The Shellow Instructions

No Inference Of Guilt From Flight

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F 372 Defendant's Flight

F 372 Note 13 Merely Leaving A Location Does Not Justify A Flight Instruction

Judge’s Response To Juror Inquiry During Deliberations Must Not Improperly Comment On The Evidence (Texas)

Compare Chance v. State, 292 S.W.3d 138, 141‑42 (Tex. App.‑‑Houston [14 Dist.] 2008, pet. ref'd) (holding trial court's response to jury's question properly clarified question of law); Kuhn v. State, [NOTICE: This opinion is UNPUBLISHED], No. 2‑07‑00157‑CR, 2008 Tex. App. LEXIS 960, 2008 WL 344516, at *4 (Tex. App.‑‑Fort Worth Feb. 7, 2008, no pet.) (mem. op., not designated for publication) (same), with Matamoros v. State, 901 S.W.2d 470, 477 (Tex. Crim. App. 1995) (holding instruction about reliability of DNA  evidence is impermissible comment on weight of evidence); Daniell v. State, 848 S.W.2d 145, 147 (Tex. Crim. App. 1993) (instruction about available correction facilities for defendant was erroneous instruction about a factual, rather than legal, matter).

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16.14.3.2 - Judge/Court Comments On The Evidence

16.14.3.3 - Court's Duty To Refrain From Improper Comment On The Evidence

Chapter 283: Communication With Jury

Chapter 285: Supplemental Instructions

285.3 - Supplemental Instructions: Jury Inquiry And Instructional Issues

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CG 5.4 Argumentative, Improper Comment, Undue Emphasis Of Evidence 

Evidence To Support Defense Theory Instruction Does Not Need To Be “Believable” (Texas)

When considering whether a defense theory instruction was warranted, the trial judge is concerned “only with whether the evidence supports the defense, not whether the evidence is believable. [Citation.]” Miller v. State, 312 S.W.3d 209, 212-13 (Tex. App. Houston 14th Dist., No. 14‑08‑00763‑CR, 4/29/2010). 

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3.3.1 - Sufficiency Of Evidence To Require Requested Instruction

3.3.1.3 - Court May Not Evaluate Witness Credibility To Deny Instruction Request

3.3.1.7 - Defendant's Testimony, Even If "Less Than Convincing," Is Sufficient For Instruction

3.3.2 - Duty To Give Requested Defense Theory Or Pinpoint Defense Instructions

Chapter 250: Defenses And Defense Theories: General Issues

250.1 - Grounds For Instruction On Defense Theory

250.4.2 - Defendant's Right To Directly Relate The Defense Theory To Prosecution's Burden

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PG III(A) Defendant's Right To Directly Relate The Theory Of Defense To An Element Of The Charge

PG V(B)(1.1) Right To “Theory Of The Case” Instruction Upon Request

PG V(B)(1.4) Duty To Instruct On Defense Theory: The Law Of The Case Doctrine

PG V(K) Instruction on Inconsistent Defenses

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

Right To Have The Jury, Not The Judge, Decide The Credibility Of Evidence

An accused has the right to an instruction on any defense raised by the evidence, whether that evidence is weak or strong, unimpeached or contradicted, and regardless of what the trial court thinks about the credibility of the evidence. Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999). This rule was designed to ensure that the jury, not the judge, decides the credibility of the evidence. Id.; see also Woodfox v. State, 742 S.W.2d 408, 409‑10 (Tex. Crim. App. 1987).

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3.3.1 - Sufficiency Of Evidence To Require Requested Instruction

3.3.1.3 - Court May Not Evaluate Witness Credibility To Deny Instruction Request

3.3.2 - Duty To Give Requested Defense Theory Or Pinpoint Defense Instructions

The Shellow Instructions

Jurors Are Judges Of The Facts In The Case

Jury As Sole Judge Of The Facts

Jury As Sole Judge Of The Credibility Of The Witness

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F 2.20 Witness Credibility

F 17.30 n4  Improper For Trial Judge To Direct Jury To Matters Adverse To The Defense In Guise Of “Comment On The Evidence”

F 17.30b Comment On The Evidence By The Trial Court

Sample Instructions: Definition Of Intent And Knowledge (Texas)

A person acts intentionally, or with intent, with respect to the nature of his conduct or a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.

A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to the result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

Source: Given in Chanthakoummane v. State, 2010 Tex. Crim. App. Unpub. (Tex. Crim. App., No. AP‑75,794, Apr. 28, 2010) [NOTICE: This opinion is UNPUBLISHED.]

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Chapter 45: Criminal Intent

Chapter 47: Knowledge

The Shellow Instructions

Basic Elements Of A Criminal Allegation: Criminal Intent

Basic Elements Of A Criminal Allegation: Knowledge

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F 225 Circumstantial Evidence: Intent Or Mental State

F 225 Inst 4 Knowledge As Mental Element

F 250 Union Of Act And Intent

F 250 Inst 2 General Intent: Knowledge Element

Self Defense In One’s Own Home: No Duty To Retreat (Minnesota)

In State v. Campbell,* 2010 Minn. App. Unpub. LEXIS 358 (Minn. Ct. App.,  No. A09‑902, Apr. 27, 2010) the jury was instructed that "[t]he legal excuse of self‑defense is available only to those who act honestly and in good faith. This includes the duty to retreat to avoid the danger if reasonably possible." Under normal circumstances, a person claiming self defense has a duty to retreat to avoid an assault, if reasonably possible, but "there is no duty to retreat in one's own home." State v. Johnson, 719 N.W.2d 619, 629 (Minn. 2006); State v. Glowacki, 630 N.W.2d 392, 402 (Minn. 2001). However, the instruction was erroneous because it required appellant to retreat from an assault even though the altercation occurred in their home. Id.; see generally State v. Pendleton, 567 N.W.2d 265, 268 (Minn. 1997) (stating, in case involving dispute over self‑defense jury instruction, that "a jury instruction must not materially misstate the law").  *[NOTICE: This opinion is UNPUBLISHED.]

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253.4.4 - Defense Of Habitation Or Place Of Business

253.4.5 - Duty To Retreat

The Shellow Instructions

Firing Weapon In Defense Of Persons And/Or Property

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F 5.12 Self‑Defense

F 5.42 Defense of Home

F 5.50 Assailed Person Need Not Retreat

Substitution Of Judge (Michigan)

“The general rule is that it is error requiring reversal to substitute a judge to preside over the remainder of a trial in which evidence was adduced while the original judge was presiding. The theory behind the general rule is that the second or substitute judge, not being familiar with the prior testimony or evidence, is not in a position to give the accused a fair and impartial trial as contemplated under the law. The only judge competent to instruct the jury is the one who heard the testimony, observed the demeanor of the witnesses and had an opportunity to form an opinion with respect to their credibility, and knows something about the "atmosphere" of the case. Another judge, without knowledge of such matters taking place during the trial and with no possibility of learning from the record all the attendant circumstances of the trial, is not qualified to properly charge the jury. [Internal citations omitted.].”  People v McCline, 442 Mich 127, 133; 449 NW2d 341 (1993).

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284.1.4 - Readback Of Testimony: Presence Of Judge

300.24 - Right To Presence Of Trial Judge

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PG IX(D)(4.3)  Right To Representation Of Counsel (And Presence Of Judge) At Readback

Missing Witness Instruction (Michigan)

Where the prosecution fails to produce a listed witness who has not been properly excused it may be appropriate to instruct that the jury may infer that this witness's testimony would have been unfavorable to the prosecution's case. People v Perez, 469 Mich 415, 418; 670 NW2d 655 (2003).

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36.2 - Missing Witness

The Shellow Instructions

Missing Witness

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F 301 Inst 2 (a‑d) Missing Witness: Sample Instructions

F 301 Inst 5 Missing Witness Not A Substitute For Proof Of Specific Facts; Any Inference Is Permissive

F 301 Inst 7 Necessity Of Addressing Missing Witness Inference, Even If No Instruction Is Given, To Avoid Negative Inferences

F 301 Inst 8 Missing Witness/Missing Evidence Instruction Where Prosecution Has Failed To Use Due Diligence To Maintain Contact With Witness

Different “Proofs” By Either Party May Warrant Specific Unanimity Instruction (Michigan)

"A defendant has the right to a unanimous verdict and it is the duty of the trial court to properly instruct the jury on this unanimity requirement." People v Martin, 271 Mich App 280, 338; 721 NW2d 815 (2006). "Under most circumstances, a general instruction on the unanimity requirement will be adequate." Id. "However, the trial court must give a specific unanimity instruction where the state offers evidence of alternative acts allegedly committed by the defendant and 1) the alternative acts are materially distinct (where the acts themselves are conceptually distinct or where either party has offered materially distinct proofs regarding one of the alternatives), or 2) there is reason to believe the jurors might be confused or disagree about the factual basis of defendant's guilt." Id. (internal quotations and citation omitted).

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Chapter 273: Jury Unanimity As To The Act Or Offense Committed (Duplicity)

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F 17.01 Juror Unanimity

F 3500.1 Unanimity: Duty To Instruct

Sample Instruction: Voluntary Intoxication

Ladies and gentlemen, you may consider the defendant's voluntary intoxication in terms of using drugs or alcohol in determining whether or not the defendant acted with deliberate premeditation and you can consider his mental condition on that day and consider whether he acted with deliberate premeditation. . . .

On this malice aforethought, ladies and gentlemen, you can again consider the defendant's mental condition on the day in question, including any voluntary intoxication by use of drugs or alcohol. . . . You should consider all the credible evidence relevant to the defendant's intent, including any credible evidence ‑‑ that is evidence that you believe ‑‑ of the effect on the defendant of his consumption of alcohol. The Commonwealth does not have to prove that the defendant was completely sober or free of the effects of alcohol. The Commonwealth doesn't have to prove that. But the Commonwealth does have to prove that the defendant retained his ability to form the specific intent to kill, and they have to prove that beyond a reasonable doubt. However, if you are satisfied beyond a reasonable doubt that the defendant had the specific intent to kill, then the defendant's intoxication, if any, is not an excuse or justification for his actions. . . .

Now, ladies and gentlemen, as to malice in connection with second‑degree murder, again, you may take into account any voluntary intoxication on the part of the defendant at the time in determining whether or not the Commonwealth has proven to you the specific intent required for malice aforethought in second‑degree murder.

Source: Given and approved in Commonwealth v. Thy Mao, 2010 Mass. App. Unpub. LEXIS 467, 1‑2 (Mass. App. Ct. Apr., No. 09‑P‑509, 30, 2010) [NOTICE: This opinion is UNPUBLISHED.]

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256.6 - Intoxication, Voluntary

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F 4.22 Voluntary and Involuntary Intoxication

F 3426 Voluntary Intoxication

Failure To Request Or Object To Instructions As IAC (Massachusetts)

Trial counsel's failure to request a proper instruction, or to object to the lack of a proper instruction, where such shortcomings deprive the defendant of an otherwise available, substantial ground of defense, amounts to ineffective assistance. See Commonwealth v. Gelpi, 416 Mass. 729, 730‑731, 625 N.E.2d 543 (1994) (counsel's failure to request instruction on defense of "honest and reasonable mistakes of fact" to armed robbery charge constituted ineffective assistance).

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Chapter 4: Duty Of Counsel Regarding Instructions

4.3.1.1 - Duty To Request Instructions

295.3.1.2 - Futile Objections Need Not Be Raised

295.3.2 - Ineffective Assistance Of Counsel At Trial

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PG VI(A) Duty To Object

PG VI(A)(1.3)  Duty Of Counsel To Object: Futile Objections Need Not Be Raised

PG VI(C) Duty To Request Instructions

Sample Instruction: Violation Of Witness Sequestration Order (Massachusetts)

I have found that two witnesses who have testified here before you . . . have violated the sequestration order. . . . Now, I instruct you on that solely for the following reason: You can take that into consideration in terms of determining the credibility of those two witnesses. . . . You may say: Well, so what? I don't think it is very important. That's fine. Or you may say: Well, I think that is a material issue to take into account in assessing someone's credibility. I simply tell you that, though, for your own purposes and you [should] assign whatever weight to it that you think it deserves.

Given and approved in Commonwealth v. Thy Mao, 2010 Mass. App. Unpub. LEXIS 467, 1‑2 (Mass. App. Ct. Apr., No. 09‑P‑509, 30, 2010) [NOTICE: This opinion is UNPUBLISHED.]

Impact Of Giving Correct And Incorrect Instructions (Massachusetts)

In Commonwealth v. Mulero,* 2010 Mass. App. Unpub. LEXIS 469, 4‑6 (Mass. App. Ct., No. 09‑P‑940, Apr. 30, 2010) the judge incorrectly instructed that "the Commonwealth's burden is to prove one of the essential elements of the case." The judge thereafter correctly instructed as to the Commonwealth's burden numerous times. The reviewing court held tat the error was harmless in reliance on Commonwealth v. Silva, 455 Mass. 503, 524, 918 N.E.2d 65 (2009) ("if the instructional center of gravity falls on the side of the correct instruction, there is no substantial likelihood of a miscarriage of justice"). *[NOTICE: This opinion is UNPUBLISHED.]

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3.3.3.1 - Duty To Correct When Requested Instruction Is Incomplete Or Incorrect

295.3.1.3 - Correct Instruction Required Sua Sponte

295.3.1.4 - Duty To Correct Requested Defense Theory Instruction Which Is Incorrect Or Incomplete

297.2.9 - Prejudice On Appeal: Erroneous Or Incomplete Instructions In Response To Jury Inquiry

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

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PG V(C)  Correction Of Defects

PG X(E)(8)  Correct Preinstruction Does Not Cure Error

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)(14)  Cross‑Examination Cannot Cure Instructional Error

PG X(E)(16)  Errors In Superfluous or Irrelevant Instructions

Right To Defense Theory Instruction Supported Only By The Defendant’s Own Testimony (Kansas)

“When the trial court refuses to give a requested instruction, an appellate court must view the evidence in the light most favorable to the party requesting the instruction. A defendant is entitled to an instruction on his or her theory of the case, even if the evidence of the theory is slight and supported only by the defendant's own testimony." State v. Jackson, 280 Kan. 541, 549‑50, 124 P.3d 460 (2005); see also State v. Henderson, 229 P.3d 420 (Kan. Ct. App., No. 100,932, 4/30/2010) [NOTICE: This opinion is UNPUBLISHED.]

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3.3.2 - Duty To Give Requested Defense Theory Or Pinpoint Defense Instructions

Volume 11: Affirmative Defenses And Defense Theories

Chapter 250: Defenses And Defense Theories: General Issues

250.1 - Grounds For Instruction On Defense Theory

250.2 - Evidentiary Requirements For Defense Theory Instruction

The Shellow Instructions

Defense Theory: If Defendant Reasonably Might Be Right Jury Must Acquit

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PG X(A)(1.3.2)  Rules For Determining Whether The Evidence Justifies An Instruction: Neither Defendant’s Testimony Nor Affirmative Defense Evidence Is Necessary For Instruction On Defense Theory

Robbery: Florida’s Standard Instruction Fails To Sufficiently Explain The Afterthought Defense (Florida)

Unless the defendant had intended to take the victim’s property at the time force was used the offense is theft, not robbery. Because Florida’s standard instructions fail to adequately explain this a special instruction on the “afterthought” defense should be given on request. Riles v. State, 33 So. 3d 808 (Fla. Dist. Ct. App. 1st Dist., No. 1D09‑2304, 4/26/2010).

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100.1.9 - Robbery: Defense Theory That The Intent To Steal Was Formed After The Taking And/Or The Application Of Force

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F 9.40e Robbery: After Acquired Intent (PC 211)

F 9.40.2 Robbery — After Acquired Intent

F 1600.6 Inst 1 (a & b) Robbery: Pinpoint Instruction On After Acquired Intent; Correction Of Burden Shifting Language