9th Circuit Holds That Supplemental Arguments Improperly Intruded Upon The Jury’s Fact Finding Role

The 9th Circuit allows for supplemental argument in some cases where supplemental instructions have been given. United States v. Fontenot, 14 F.3d 1364, 1368 (9th Cir. 1994). Such supplemental arguments are meant to cure any prejudice caused by the introduction of a new theory into the case after the evidence has closed and the jury has retired to deliberate. United States v. Hannah, 97 F.3d 1267, 1269 (9th Cir. 1996).

In United States v. Evanston, 2011 U.S. App. LEXIS 13647 (7/5/2011, 9th Cir. Ariz., No. 10-10159) no new theory or supplemental instruction was presented.

Accordingly, the supplemental arguments erroneously “intruded upon the jury's fact-finding role in two ways and through two conduits: (1) the judge's questioning as to the reasons for the deadlock required that the jury divulge the state of its unfinished deliberations, thereby violating the jury's deliberative secrecy, [citations] and (2) the parties' supplemental arguments, coupled with the judge's insistence on continuing after a second deadlock, injected the court and the attorneys into the jury's deliberative process, thereby raising the specter of jury coercion.”  See also Diane E. Courselle, Struggling with Deliberative Secrecy, Jury Independence, and Jury Reform, 57 S.C. L. Rev. 203, 225 (Autumn 2005), ["Coercive comments do not infringe upon deliberative secrecy because they do not require revelation of the jurors' thought processes, but [they] diminish the jury's independence . . . . In other words, coercive comments may not let the jury's thoughts out of the deliberation room, but they let the judge's influence in."].

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

Forecite National™

285.1.8  Right To Additional Summation Or Argument To The Jury After Supplemental Instructions

285.4.3 Right To Reopen Argument If Supplemental Instruction Covers New Subject

Forecite California™

PG IX(H)(4) Right To Reargue After Supplemental Instructions

Second Allen Instruction Without Request Is Reversible Error (9th Circuit)

The 9th Circuit has held that it is per se error to give a second Allen charge where the jury has not requested one, because it conveys a message that "the jurors have acted contrary to the earlier instruction as that instruction was properly to be understood. ('Apparently you didn't listen to what I said before, so I'll repeat it.')," and that message serves no purpose other than impermissible coercion. United States v. Seawell, 550 F.2d 1159, 1163 (9th Cir. 1977); see also United States v. Evanston, (7/5/2011, 9th Cir. Ariz., No. 10-10159).

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

Forecite National™

Chapter 286: Deadlock

286.1 General Rules And Miscellaneous Issues

Forecite California™

PG IX(J) - Instructions to a Deadlocked Jury

Judge’s Response To Juror Inquiry Must Not Influence Or Coerce The Jury

Because "[t]he influence of the trial judge on the jury is necessarily and properly of great weight and his lightest word or intimation is received [by the jury] with deference, and may prove controlling[,]" Quercia v. United States, 289 U.S. 466, 470 (1933) (internal quotation marks omitted), the court's exercise of discretion in managing deliberations is not without limits. For example, when responding to jury questions or requests during deliberations, every effort must be undertaken to avoid influencing or coercing a jury to reach one verdict over another. See, e.g., United States v. Nickell, 883 F.2d 824, 829 (9th Cir. 1989)["In deciding whether to allow the jury to review testimony during deliberations, the court should avoid giving undue emphasis to particular testimony." (citing United States v. Binder, 769 F.2d 595, 600 (9th Cir. 1985))]; United States v. Walker, 575 F.2d 209, 214 (9th Cir. 1978) ["Because the jury may not enlist the court as its partner in the fact-finding process, the trial judge must proceed circumspectly in responding to inquiries from the jury."]. Cf. Starr v. United States, 153 U.S. 614, 626, 14 S. Ct. 919, 38 L. Ed. 841 (1894) [advising that the trial judge must take great care to avoid commenting upon evidence in one-sided manner].  Indeed, "the principle that jurors may not be coerced into surrendering views conscientiously held is so clear as to require no elaboration." Jenkins v. United States, 380 U.S. 445, 446, 85 S. Ct. 1059, 13 L. Ed. 2d 957 (1965).

In light of the above concerns, the just must use extraordinary caution must be exercised when acting to break jury deadlock. This is particularly true with respect to the court's actions in giving an Allen charge, which already "stands at the brink of impermissible coercion." United States v. Seawell, 550 F.2d 1159, 1163 (9th Cir. 1977). Even slight deviations from the approved language and procedure can result in reversible error based upon likelihood of coercion. United States v. Mason, 658 F.2d 1263, 1267-68 (9th Cir. 1981); see also United States v. Evanston, (7/5/2011, 9th Cir. Ariz., No. 10-10159).  Federal judges may not convey to a deadlocked jury the mandate that a verdict must be reached at all, as such a statement might impermissibly coerce a dissenting juror into surrendering a conscientiously held belief about the facts. See Jenkins, 380 U.S. at 446.  The use of Allen charges has been so strongly "criticized as constituting an unwarranted intrusion upon the province of the jury" that several federal circuits have completely barred their use, opting instead for other forms of instruction. See Nickell, 883 F.2d at 828.

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

Forecite National™

16.14 Conduct Of Judge

Chapter 283: Communication With Jury

Forecite California™

PG IX(D) - Response to Jury Inquiry

PG IX(F) - Sample Briefing on Court's Duty to Respond to Juror Inquiry

Prior Uncharged Acts: Preservation Of Appellate Issues (8th Circuit)

When the prosecution presents evidence of the defendant’s prior uncharged acts it is possible that a jury might use such evidence in the way prohibited by FRE 404(b). See Huddleston v. United States, 485 U.S. 681, 691 (1988) [sharing "petitioner's concern that unduly prejudicial evidence might be introduced under Rule 404(b)"]. When the risk of such a use is too high, the evidence can be excluded altogether. See FRE 403 ["Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . ."]. In such situations the defense may request that the evidence be excluded as unduly prejudicial (FRE 403) or request that the jury be instructed to use the evidence for proper purposes only. See FRE 105 ["When evidence which is admissible . . . for one purpose but not admissible . . . for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly."]).

However, to preserve these arguments for appeal the FRE 105 and 403 issues must be preserved by defense counsel at trial. For example, the 8th Circuit has "never found it to be plain error when a court does not give a limiting instruction of any kind sua sponte with respect to Rule 404(b) type evidence." United States v. Joos, 638 F.3d 581, 588 (8th Cir 2011); see also United States v. McGuire, 45 F.3d 1177, 1188 (8th Cir. 1995) ["The trial court need not issue a prior crimes limiting instruction sua sponte."].

Moreover, the defense must request that  the evidence be altogether excluded pursuant to FRE 403. See Huddleston, 485 U.S. at 691 n.8 ["[P]etitioner did not seek review of the Rule 403 balancing performed by the courts below. . . . We therefore do not address that issue."]; but see United States v. Stenger, 605 F.3d 492, 499 (8th Cir. 2010) [Rule 403 is the final component of an analysis under Rule 404(b)]; see also United States v. Maxwell, (7/8/2011, 8th Cir. Minn., No. 10-2237).

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

Forecite National™

1.2.9 Instruction Preparation Helps To Preserve Issues For Appeal

25.20 Uncharged Acts To Prove Propensity (FRE 413-415)

26.5 Uncharged Acts To Prove Issues Other Than Propensity

Chapter 295: Appeal: Procedural Issues

Forecite California™

PG VI(A)(1.13) Reviewing Court's Power To Sua Sponte Consider Issues Not Raised Or Preserved By The Parties: Courts Of Appeal

PG VI(A)(11) Request for CALCRIM Instruction Does Not Preserve Issues Included In Bench Notes

PG VI(E)(1) Using A Mantra Motion To Preserve Without The Need Of Restating The Federal Constitutional Grounds Over And Over

PG VII(B)(2.2) Federal Claim May Not Be Preserved By Citing State Cases Which Discussed Federal Claims

F 2.50 Other Crimes, Uncharged Offenses

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

Definition Of Indian Status Per 18 USC 1153(a) (9th Circuit)

Under 18 USC 1153, the jury is required to find beyond a reasonable doubt that the defendant is an “Indian.” See 18 USC 1153(a) ‘[subjecting "[a]ny Indian" who commits one of 14 major crimes to the criminal laws and penalties applicable in areas of exclusive federal jurisdiction]. See United States v. Bruce, 394 F.3d 1215 (9th Cir. 2005), United States v. Cruz, 554 F.3d 840 (9th Cir. 2009), and United States v. Maggi, 598 F.3d 1073 (9th Cir. 2010).  Thus, the jury should be instructed to apply the standard set forth in Bruce and Cruz, including the basic two-prong Indian status test and the four subfactors used to evaluate the second prong. 

Sample Instruction: Jurors Not To Consider In-Court Observation Of Non-Testifying Defendant (Connecticut)

You are to consider only the evidence in this case. What is the evidence? Witness stand and exhibits; we discussed that. That's the evidence. It has been tested through cross-examination, and the court has received the exhibits as full with counsel having the ability to object or make their claims legally known for the record.

Visual displays other than permitted by the court. In this courtroom, although you--you saw something, not evidence, not evidence, not evidence. It is not subject to cross-examination, it's not subject to anything at all in this courtroom in the orderly course of this proceeding. And why so? Because of that we can determine . . . the integrity of any evidence only through the accepted procedures established . . . [a]nd whether or not the state proved beyond a reasonable doubt that [the defendant] fired the weapon or was a principal or accessory, you determine that based upon the facts, the facts in this case, and they came from the witness stand, whether you believe it or not. It's your job to determine whether you believe any or all of the evidence; that's your job. You can disbelieve any or none of anyone's testimony; that's your job. Not speculation. Not conjecture. Not guesswork. Not sympathy. But only on the facts, what was proven. And your decision is made, proof beyond a reasonable doubt, on the evidence or the lack thereof.

Source: Given in State v. Gamble, 119 Conn. App. 287, slip opn. p. 9-10 (Conn. App. Ct., AC 29140, 2010)
For subscription based briefing and sample instructions on this and related issues see:

Forecite National™
18.6 - Demeanor And In-Court Behavior Of Nondisruptive Defendant
Forecite California™
F 355 Inst 3 - Jurors To Disregard Non-Testifying Defendant's Courtroom Appearance, Conduct And Demeanor
F 355 Inst 4 - Jury May Not Consider Non-Testifying Defendant's Courtroom Appearance, Conduct Or Demeanor To Find Lack Of Remorse In Capital Trial
F 355 Inst 5 - Jury May Only Consider Testifying Defendant's Demeanor, Conduct Or Appearance While He/She Is Testifying And Only As To Matters At Issue

Sample Instruction: Transporting An Illegal Alien (18 USC 1324(a)(1)(A)(ii)) (2nd Circuit)

The fourth element of the offense which the government must prove beyond a reasonable doubt is that a defendant acted willfully in furtherance of the alien's violation of the law. In order to establish this element, the government must prove that a defendant knowingly and intentionally transported the alien in furtherance of the alien's unlawful presence in the United States, In other words, the evidence must show a direct and substantial relationship between the transportation and furthering the alien's unlawful presence in the United States.

Source: United States v. Rodriguez, 2009 U.S. App. LEXIS 25921, 28-29 (2d Cir. N.Y. Nov. 30, 2009) [transportation of illegal aliens is not, by itself, a violation of the statute if it is merely incidental to the alien's presence in the United States. The law proscribes such conduct only when it is furthering an alien's illegal presence in this country].

Failure To Define “Knowingly” And “Purposely” Was Plain Error (New Jersey)

In State v. Kibuuka, (4/1/2011, App.Div. No.A‑3188‑09T2) [NOTICE: This opinion is UNPUBLISHED.] the judge did not define any of the terms contained in the statute including  “knowingly” and “purposely.” As a result, the jury was left to speculate concerning the requisite mens rea for the offense. The State conceded that this failure was clearly capable of producing an unjust result and constituted plain error warranting a new trial.

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

Forecite NationalÔ

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

296.2.2.4 Standard Of Prejudice On Appeal: Failure To Define A Technical Term

Forecite CaliforniaÔ

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

PG VI(A)(1.20) Cognizability Of Error Without Objection: Failure To Define Technical Term

PG X(C)(8)  Failure To Define A Technical Term As Reversible Error

Sample Instruction: Substitution Of Juror – Remaining Jurors Should Give “No Weight” To Opinion Of Excused Juror (New Jersey)

You must disregard everything that Juror ________ <identify excused juror> said during the earlier deliberations including any opinions that [he/she] expressed.

Source: Cf. State v. Graham, (4/8/2011, App.Div. No. A‑4843‑08T3) [NOTICE: This opinion is UNPUBLISHED.]; see also New Jersey Model Jury Charge (Civil), 1.16, “Alternate Juror Empaneled After Deliberations Have Begun; R. 1:8‑2(d)” (2007).

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

Forecite NationalÔ

282.1 Alternate Jurors: Procedural Issues

282.2 Alternate Jurors: Instructional Issues

Forecite CaliforniaÔ

PG IX(I)  Substitution of Alternate Juror

F 3575 Substitution of Alternate Juror: During Deliberations

Sample Instruction: Juror Deliberations Must Begin Anew After Replacement Of Juror With Alternate – Remaining Jurors Should Summarize Their Observations For The New Juror (New Jersey)

All right, ladies and gentlemen, now it’s important for you to understand how things need to work, now that you are a different unit than you have been up to this point. Because with the addition of the Alternate that’s now part of the 12 deliberating Jurors you have been reconstituted. You are not the same group you were up until this point. So what’s required of you by law is that you disregard whatever conclusions or deliberations you have conducted up to this point and you begin deliberations anew. And the way that you can best do that is each of you, the best one to understand what was said, is the person who said it. So what each of you need to do, when you go back into the jury room and perhaps the Forelady can arrange for this, is that you – you summarize for the new Juror things [that] have been said. And the best way to do that is for each person to try to recall the observations that they made, so that you can make them again, and the new Juror can have some input into . . . that.

Source: State v. Graham, (4/8/2011, App.Div. No. A‑4843‑08T3)  [NOTICE: This opinion is UNPUBLISHED.]

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

Forecite NationalÔ

282.1 Alternate Jurors: Procedural Issues

282.2 Alternate Jurors: Instructional Issues

Forecite CaliforniaÔ

PG IX(I)  Substitution of Alternate Juror

F 3575 Substitution of Alternate Juror: During Deliberations

Proper Jury Instructions Are “Essential . . . To Assure A Fair Trial” (New Jersey)

It is well settled that appropriate and proper jury charges are essential in a criminal case to assure a fair trial. State v. Reddish, 181 N.J. 553, 613, 859 A.2d 1173 (2004); State v. Green, 86 N.J. 281, 287, 430 A.2d 914 (1981); see also UNPUBLISHED.]

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

Forecite NationalÔ

Chapter 3: Duty Of Court Regarding Instructions

Chapter 4: Duty Of Counsel Regarding Instructions

Forecite CaliforniaÔ

PG I(B) ‑ Duty of Court to Go Beyond the Standard Pattern Instructions

PG VI(C) ‑ Duty to Request Instructions

Nebraska Judge Erroneously Misled Defense Into Believing That The Jury Would Be Instructed On Insanity Caused By Intoxication (Nebraska)

Temporary insanity caused by intoxication is not a defense in Nebraska:

“Based on our past case law and the case law of other states, we find that the district court did not err when it refused to instruct the jury on insanity in the present case. ‘While the mental state resulting from extreme intoxication may in some cases be “tantamount to insanity,” . . . its origin as a self‑induced impairment fundamentally distinguishes it for most courts from a naturally occurring mental disease or defect that leads to insanity. . . . Indeed, it is universally recognized that a condition of insanity brought about by an individual’s voluntary use of alcohol or drugs will not relieve the actor of criminal responsibility for his or her acts.’ [Citation.]”

Nevertheless, State v. Hotz, 281 Neb. 260, 277, 280 (4/1/2011, Neb., No. S‑10‑105) reversed the defendant’s conviction because the judge led the defense to believe that he would give an instruction on insanity caused by intoxication:

“Given the circumstances, we find that Hotz’ ability to mount a defense was severely compromised when he was barred from asserting the insanity defense at what amounted to the eleventh hour. Although Hotz is not entitled to an insanity instruction as a matter of law, he and the jury proceeded through trial with the assumption that the defense was available. Such amounted to an irregularity in the proceedings . . . which irregularity prevented Hotz from receiving a fair trial and now entitles him to a new trial.”

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

Forecite NationalÔ

297.2.8 Prejudice On Appeal: Defense Counsel Forced To Make Closing Argument Without Support Of Instruction

Forecite CaliforniaÔ

PG X(E)(6)  Defense Counsel Forced to Make Closing Argument Without Support of Instruction

Judge’s Duty To Make Sure Defense Theory Instructions Are In The Proper Form (Mississippi)

In Manuel v. State, 667 So. 2d 590 (Miss. 1995), the Mississippi Supreme Court found reversible error in a homicide case, in part, because the defendant was entitled to a jury instruction on her theory of self defense; and the trial court improperly failed to put this instruction into proper form. Id. at 593. Thus, the trial court failed in its duty to make sure the instructions were in the proper form for submission to the jury. Compare Moore v. State, (4/5/1022, Miss. Ct. App. No. 2009 KA 01375 COA; 2011) [jury instruction Moore offered on his theory of the case did not include any type of defense].

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

Forecite NationalÔ
3.3.2 Duty To Give Requested Defense Theory Or Pinpoint Defense Instructions
3.3.3 Duty To Correct Defects
250.1 Grounds For Instruction On Defense Theory
250.2 Evidentiary Requirements For Defense Theory Instruction
250.3 Procedural Requirements For Defense Theory Instruction
296.2.2.3 Standard Of Prejudice On Appeal: Failure To Instruct On A Defense Or Defense Theory

Forecite CaliforniaÔ
PG V(B)(1.4) Duty To Instruct On Defense Theory: The Law Of The Case Doctrine
PG V(C) Correction Of Defects
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 VII(C)(14.1) Precluding Defendant From Arguing Theory Of Case Is Structural Error
PG VII(C)(15) Right To Present A Defense: Guaranteed By Constitutional Rights To Compulsory Process, Confrontation, Due Process And Trial By Jury
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

Long Term Absence Does Not Warrant Flight Instruction (Mississippi)

The purpose of the flight instruction is to inform the jury that it might consider the defendant’s flight from the scene immediately after the commission of the crime as a circumstance from which guilty knowledge might be inferred. While the prosecution understandably might wish to present evidence of a defendant’s extended absence from the state and argue that fact to the jury (which the prosecutor would have every right to do, especially since the jury would be curious as to why it had taken more than twenty years after the crimes to bring a defendant to trial), the flight instruction should only be applicable if the defendant fled the scene of the crime immediately after the commission of the crime. Sanders v. State, (4/7/2011, Miss. Apr. No. 2008‑CT‑01445‑SCT, Carlson, P.J., concurring.

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

Forecite NationalÔ

18.2 Absence Of Defendant

34.3 Flight

The Shellow Instructions

No Inference Of Guilt From Flight

Forecite CaliforniaÔ

F 2.52 Flight

F 372 Defendant's Flight

Presiding Justice Of Mississippi Supreme Court: “Great Caution” Is Needed Before Giving An Instruction On The Defendant’s Alleged Flight (Mississippi)

In Sanders v. State, (4/7/2011, Miss. Apr. No. 2008‑CT‑01445‑SCT) Carlson, P.J., concurring, Presiding Justice Carlson issued a strong cautionary warning about instructing the jurors on the defendant’s alleged flight:

“I again caution against the use of the instruction. It must be emphasized that the (hopefully) rarely‑used flight instruction should be requested, and granted, with prudence. As I have previously written: ‘[T]he use of the flight instruction in this state can be described in one word — “dangerous.” In my years of experience as a trial judge, the flight instruction was very seldom requested by the prosecution and almost never given. It simply is not needed. While evidence of flight might be relevant, no legitimate purpose is served by the jury receiving an instruction from the trial court (which heightens the importance of the evidence in the eyes of the jury) highlighting for the jury the fact that the jury can consider evidence of flight as “a circumstance of guilt or guilty knowledge” when “that flight is unexplained and somehow probative of guilt or guilty knowledge.” See Reynolds v. State, 658 So. 2d 852, 856 (Miss. 1995); Fuselier v. State, 468 So. 2d 45, 57 (Miss. 1985). The term “unexplained flight” is somewhat nebulous, anyway, and a trial court, by giving a flight instruction, simply puts itself in a position of possibly placing reversible error in an otherwise clean record. If a trial court persists in giving a flight instruction, I suggest that it do so with great caution.’ [Citation.]”

. . .

“Keeping all of this in mind, I again emphasize that great caution should be used when the prosecutor submits, and the trial judge considers, a proposed flight instruction.”

. . .

“The difference in what the prosecutor can do, and what the trial judge can do via a written instruction to the jury, is the cold hard fact that when a trial judge instructs the jury on such matters as a defendant’s flight, such action only ‘heightens the importance of the evidence [of flight] in the eyes of the jury.’ [Citation.]” 

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

Forecite NationalÔ

18.2 Absence Of Defendant

34.3 Flight

The Shellow Instructions

No Inference Of Guilt From Flight

Forecite CaliforniaÔ

F 2.52 Flight

F 372 Defendant's Flight

When Is A Requested Two-Theory Circumstantial Evidence Instructions Warranted? (Mississippi)

Kirkwood v. State, 52 So. 3d 1184, 1187 (Miss. 2011) articulated a rule to determine whether a circumstantial evidence instruction is warranted when requested by the defendant: “While evidence does not always fall neatly into one category, examples of direct evidence include an admission or confession by the defendant to ‘a significant element of the offense,’ or eyewitness testimony to the ‘gravamen of the offense’ charged.”  Kirkwood v. State, 52 So. 3d 1184, 1187 (Miss. 2011) [quoting Mack v. State, 481 So. 2d 793, 795 (Miss. 1985)].  The term “gravamen” is defined as the “substantial point or essence of a claim, grievance, or complaint.”  Black’s Law Dictionary, 562 (7th ed. 2000).  In the absence of such direct evidence a circumstantial evidence instruction is likely to be necessary.  Kirkwood v. State, supra.

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

Forecite NationalÔ

25.12 Circumstantial Evidence

25.12.1 Circumstantial Evidence: Duty To Instruct

25.12.3 Circumstantial Evidence: Equally Reasonable Inferences Must Be Resolved In Favor Of The Defendant

The Shellow Instructions

Evidence: Circumstantial Evidence: Generally

Forecite CaliforniaÔ

F 2.01 Circumstantial Evidence

F 224 Circumstantial Evidence: Sufficiency Of Evidence

The Two-Theory (Webster) Instruction On Circumstantial Evidence Is Not Cumulative With The Standard Elements Instruction (Mississippi)

In McInnis v. State, 2010 Miss. App. LEXIS 66, 2010 WL 522692, at *5 (Miss. Ct. App. Feb. 16, 2010) the prosecution relied exclusively on circumstantial evidence.  Accordingly, the Court of Appeals concluded that the trial judge erroneously failed to give the jurors a two-inference (Webster) instruction requiring the jurors to resolve reasonable interpretations of the evidence in favor of the defendant.  [See these Forecite BlogÔ posts: [1/9/11]; [1/12/10, 1/12/10]; [1/5/10].  However, the Court of Appeals concluded that the error was harmless because the two-theory instruction was cumulative with the regular elements instructions which required the jurors to find the defendant committed every element of the charge beyond a reasonable doubt.  Ibid.

The Mississippi Supreme Court concluded that the Court of Appeals reasoning was “flawed” and that the customary elements instruction did not cure the error in omitting the two-theory instruction: “Instructing the jury that it must find the elements of a crime beyond a reasonable doubt does not cure and render harmless the trial court’s refusal of a circumstantial‑evidence instruction where such an instruction is warranted.” McInnis v. State, (4/7/2011, Miss. No. 2008‑CT‑01576‑SCT); see also Moses v. State, 30 So. 3d 391, 395 (Miss. Ct. App. 2010); Stringfellow v. State; 595 So. 2d 1320, 1322 (Miss. 1992); Gilleylen v. State, 255 So. 2d 661, 663 (Miss. 1971); Kendall v. State, 217 So. 2d 35, 36 (Miss. 1968).

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

Forecite NationalÔ

25.12 Circumstantial Evidence

25.12.1 Circumstantial Evidence: Duty To Instruct

25.12.3 Circumstantial Evidence: Equally Reasonable Inferences Must Be Resolved In Favor Of The Defendant

The Shellow Instructions

Evidence: Circumstantial Evidence: Generally

Forecite CaliforniaÔ

F 2.01 Circumstantial Evidence

F 224 Circumstantial Evidence: Sufficiency Of Evidence

Massachusetts Appellate Court Reverses Rape Conviction Due To Erroneous Instruction On Lesser Included Offense (Massachusetts)

Commonwealth v. Phineas P., (4/8/2011, Mass. App. Ct., No. 09‑P‑1934) observed that the Massachusetts Supreme Judicial Court recently held  that the appropriate test for determining whether a judge has erred in allowing the jury to consider a lesser included offense is whether there is “a hypothetical basis for the jury to conclude that the defendant was guilty of the lesser included offense, but not the offense charged . . . “(emphasis supplied by Phineas P. court). Commonwealth v. Porro, 458 Mass. 526, 537, 939 N.E.2d 1157 (2010).”The judge may consider the possibility that the jury reasonably may disbelieve the witnesses’ testimony regarding an element required of the greater, but not the lesser included, offense. . . . It is therefore not impermissible for a judge to give an instruction on a lesser included offense even though the element that distinguishes the two offenses was not specifically disputed or put in issue at trial.” Ibid.  

In Phineas P. The defendant was charged with both aggravated rape and the lesser included offense of simple rape. The jury convicted Phineas of the lesser offense. The reviewing court reversed because there was no “hypothetical basis for the jury to conclude” that Phineas was guilty of rape, but not aggravated rape. In so holding the court rejected the prosecution’s speculation that the jurors were convinced that Phineas had raped the victim in a joint enterprise, but were disposed through leniency to convict of the lesser included offense. See also, e.g., Commonwealth v. Diaz, 19 Mass. App. Ct. 29, 33, 471 N.E.2d 741 (1984).

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

Forecite NationalÔ

Chapter 265: Lesser Included Offenses: General Principles

Forecite CaliforniaÔ

LIO II ‑ Duty to Instruct

Defense Of Another: Does Initial-Aggressor Rule Apply? (Massachusetts)

In Commonwealth v. Sanchez, 79 Mass. App. Ct. 189, 194‑196 (4/1/2011 Mass. App. Ct., No. 08‑P‑1441) the court concluded that the answer to the above question “is not clear.”  Id. at fn. 12.   On the one hand it is difficult to reconcile a rule that would deter persons – even original aggressors – from forcefully intervening on behalf of an apparently blameless third person, with a policy rationale based on “the social desirability of encouraging people to go to the aid of third parties who are in danger of harm as a result of the unlawful actions of others.” Commonwealth v. Monico, 373 Mass. 298, 303, 366 N.E.2d 1241 (1999) [discussing Commonwealth v. Martin, 369 Mass. 640, 649, 341 N.E.2d 885 (1976), which announced the modern defense-of-another rule]. At the same time, an actor’s provocation or exacerbation of a conflict is irrelevant once an innocent third party enters the equation. A person who initiates or provokes a conflict is not in the same position as the archetypical “good Samaritan” envisioned by the Supreme Judicial Court when it first enunciated the defense in Martin.

Whether or not the initial-aggressor rule applies to defense of another (as opposed to self defense) must be addressed on a jurisdictional basis.  Some jurisdictions address the issue by statute. See, e.g., Colo. Rev. Stat. § 18‑1‑704 (2010); Conn. Gen. Stat. § 53a‑19 (2009); Ga. Code Ann. § 16‑3‑21 (2007); Kan. Stat. Ann. § 21‑3214(3) (2007).  Other courts, as a matter of statutory construction, have suggested that a defendant’s aggressor status may properly deprive him entirely of the right to rely on defense of another. See State v. Silveira, 198 Conn. 454, 470, 503 A.2d 599 (1986). At least one other jurisdiction holds that an otherwise justifiable application of force in defense of another, when rendered on behalf of an original aggressor, constitutes the imperfect defense of another and reduces the killing to voluntary manslaughter. See State v. Johnson, 182 N.C. App. 63, 70, 641 S.E.2d 364 (2007), citing State v. Perry, 338 N.C. 457, 466, 450 S.E.2d 471 (1994).

Practice Note: A defense-of-another instruction should not be given in the absence of evidence to support it. [See this Forecite BlogÔ post.]  Furthermore, if an aggressor instruction is given, it is important to consider how “initial aggressor” is defined in the instruction.  [See this Forecite BlogÔ post.]

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

Forecite NationalÔ

253.6 Defense Of Others

255.4.4.1 Imperfect Self Defense: Applicable To Defense Of Others