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

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

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6.2.18 Constructive Possession: Use Of Phrase “Indirect Possession” To Avoid JurorConfusion

Chapter 56: Possession

The Shellow Instructions

Possession

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F 1.24 Possession

F 3306 Possession Based Offenses—Defense Theories

Judge’s Duty To Tailor Standard “Boilerplate” Instruction To The Facts (6th Circuit)

The Sixth Circuit cautioned against the use of "boilerplate instructions" insufficiently tailored "to the facts and theories of the specific case  being tried." United States v. Wolak, 923 F.2d 1193, 1198 (6th Cir. 1991) [admonishing the district court for giving instructions on joint and constructive possession where only actual possession was at issue in the case]; see also Sixth Circuit Criminal Pattern Jury Instructions Use Note to § 2.10A ("Actual Possession") ["This instruction should be given if the government's only theory of possession is actual possession."]; see also United States v. Douglas, 371 Fed. Appx. 562, 565-567 (6th Cir. Ohio 2010, 3/25/2010 No. 08-4247).   Thus, it is “well established that an instruction should not be given if it lacks evidentiary support or is based upon mere suspicion or speculation." United States v. James, 819 F.2d 674, 675 (6th Cir. 1987) [reversing the defendant's conviction for possession of a firearm by a convicted felon where the government conceded that the defendant had actual possession of the firearm only, but the district court gave constructive possession instruction as well] [citations and internal quotation marks omitted].

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1.3 The Inherent Limitation Of Pattern Instructions

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PG V(A)(3)(a) Duty To Tailor Standard Form Instructions To Reflect The Facts And LegalTheories Presented At Trial

PG XI(B) Propriety Of Modified Or Tailored CALCRIM Instructions

Instruction On Refusal Of Prosecution Witnesses To Speak to Defense Counsel (2nd Circuit)

In United States v. Sabhnani, 599 F.3d 215, 237-241 (2d Cir. N.Y. 3/25/2010) several of the prosecution witnesses admitted that they had refused to speak to defense counsel prior to the trial.  Over defense objection the judge instructed the jurors as follows:

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

On appeal the defense contended that absent this instruction, the jury could have reasoned that because these witnesses refused to speak to defense counsel, they must have been biased against the defense. Moreover, the defense also argued that the instruction may have cast trial counsel in a negative light for even asking witnesses the question whether they had refused to speak to the defense prior to trial.

The appellate court found no error in the instruction: “The instruction did nothing more than inform the jury of this right and instruct that a witness does not act wrongfully by exercising it. The defense was still free to suggest – and did, through cross-examination and in summation – that the refusal to meet with defense counsel could suggest a witness's greater sympathy for or affiliation with the other side of the case.” Sabhnani, 599 F.3d at 546.

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16.13.2 Cautionary Instruction Regarding Duty Of Counsel To Interview Witnesses InAdvance Of Trial

The Shellow Instructions

Witnesses Generally: Each Party Has The Right To Talk With Witnesses Called By The Other

Witnesses Generally: Duty Of Attorney To Interview Witnesses

Sample Instruction: Comparison Of Constructive Possession With Safety Deposit Box (3rd Circuit)

If a person has the ability to exercise substantial control over an object that the person does not have in his or her physical custody, then the person is in possession of that item. An example of this from every day experience would be a person's possession of items which are kept in a safety deposit box in the bank. Although the person does not have physical custody of these items, the person exercises substantial control over them, so he or she has what is known as constructive possession of them.

[Source: Adapted from United States v. Moore, (3d Cir. Pa. 3/25/2010, No. 09-2526). NOTICE: This opinion is UNPUBLISHED.]

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6.2.18 Constructive Possession: Use Of Phrase “Indirect Possession” To Avoid Juror Confusion

Chapter 56: Possession

The Shellow Instructions

Possession

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F 1.24 Possession

F 3306 Possession Based Offenses—Defense Theories

Aiding And Abetting Liability Based On Failure To Act (2nd Circuit)

It is a long-established principle that criminal law generally regulates action, rather than omission, and that "[f]or criminal liability to be based upon a failure to act it must first be found that there is a duty to act – a legal duty and not simply a moral duty." 1 Wayne R. LaFave, Substantive Criminal Law § 6.2 (2d ed. 2008). Such a legal duty to act can arise from a statute specifically creating the duty – the duty to file one's tax returns, for instance, see 26 U.S.C. § 7203 – or by extrapolation from a different statute, the common law, or contract. 1 LaFave, Substantive Criminal Law § 6.2. This general principle, that omissions may serve as the basis of criminal liability only if there is an affirmative duty to act, has to be held equally applicable when the crime charged is aiding and abetting. See United States v. Labat, 905 F.2d 18, 23 (2d Cir. 1990) ["To convict a defendant on a theory of aiding and abetting, the government must prove that the underlying crime was committed by a person other than the defendant and that the defendant acted, or failed to act in a way that the law required him to act, with the specific purpose of bringing about the underlying crime"].

However a common law duty to act may exist if it is sufficiently established in legal tradition and action.  (See United States v. Sabhnani, 599 F.3d 215, 237-241 (2d Cir. N.Y. 3/25/2010.) When such a theory is alleged the judge must instruct on the nature of this duty and the factors the jury should consider in determining whether the duty was discharged. See Jones v. United States, 308 F.2d 307, 310-11, 113 U.S. App. D.C. 352 (D.C. Cir. 1962) [reversing on plain error review where a jury was not instructed as to the nature of the common law duty that was the basis for omissions liability].

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44.6 Physical Impossibility As Defense To Charge Based On Omission Of Duty Or Failure To Act

Chapter 64: Accomplice Liability (Aiding And Abetting, Accessory Before The Fact, Etc.)

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Aiding And Abetting

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F 3.01 Aiding and Abetting

F 3.02 Aider and Abettor Liability

F 3.00 n4  Aiding And Abetting:  No Affirmative Duty To Act.

Calcrim 400 Aiding And Abetting, Inchoate, And Accessorial Crimes

Texas Court Holds That Voluntary Intoxication Instruction Should Not Have Been Included In Punishment Instructions

In Kresse v. State, (Tex. App. Fort Worth 4/22/2010, [Notice: This opinion is UNPUBLISHED], No. 2-09-271-CR) the defendant pled guilty to a charge of murder and requested that a jury decide what punishment should be imposed.  The testimony during trial was replete with evidence of the history of his intoxication, its effect on his actions, and his intoxication at the time of the murder, and that the State emphasized his inebriation in both its opening statement and its closing argument.

Over defense objection, the trial court sua sponte instructed the jury that "[v]oluntary intoxication does not constitute a defense to the commission of a crime," and it included a definition of intoxication in its punishment charge to the jury. Immediately following the voluntary intoxication instruction and the definition of "intoxication," the jury charge read: "It now becomes your duty under the law to determine the punishment which should be assessed against this defendant."

The state conceded that giving the voluntary intoxication instruction was error but argued that the instruction was superfluous because  its clear language applied to a defense rather than a mitigating factor in punishment.  Moreover, the state relied on that fact that neither party referred to the voluntary intoxication instruction in their arguments to the jury.

Nevertheless, the reviewing court reversed the 50 year sentence imposed by the jury because the erroneous instruction “drew attention to one area of evidence and enhanced the State's argument for punishment.” The court noted that “we are required to reverse if we determine the presence of ‘any harm, regardless of degree, which results from a preserved charging error. . . .’" Kresse v. State, supra [citing Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986) ("Cases involving preserved charging error will be affirmed only if no harm has occurred.").

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256.6 Intoxication, Voluntary

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F 4.22 Voluntary and Involuntary Intoxication

F 3426 Voluntary Intoxication

Eyewitness: Need For “Enhanced” Jury Instructions (New Jersey)

State v. Henderson (NJ 2001) 208 N.J. 208, 27 A3d 872 concluded that when eyewitness identification testimony is admitted at trial, enhanced instructions should be given to juries – both after trial and also at the time of the witness’s testimony, if appropriate – about the various factors that may affect the reliability of an identification in the particular case. 

The court did not propose specific instructions in its opinion, but invited the parties and amici to submit proposed instructions to the state's model jury instruction committee.

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Chapter 31: Identification: Eyewitness (Mistaken Identity)

31.1 Eyewitness Identification Strategy: Early Preparation And Development Of"Total-Case" Strategy

The Shellow Instructions

Evidence: Eyewitness Identification

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F 2.92 Eyewitness Factors

F 315.1.1 Eyewitness Identification: General

F 315 Note 21 Eyewitness: Need For “Enhanced” Jury Instructions

Factors Affecting Reliability Of Eyewitness Identification (New Jersey)

After an exhaustive evaluation of the latest scientific studies and literature State v. Henderson (NJ 2001) 208 N.J. 208, 27 A3d 872 concluded that the factors which affect the reliability of eyewitness identification include the following:

System Variables: whether the procedure was performed blind or double-blind, or with some other safeguard to ensure that the administrator had no knowledge of where the suspect appeared in the lineup; whether neutral pre-identification instructions were given to the witness; how well the lineup was constructed (presenting an adequate number of filler photos or individuals, choosing photos/participants that fit the witness's description, sequential administration of photos); whether the witness received any feedback about the suspect before, during or after the identification; contemporaneous recording of the witness's reactions when viewing the lineup ; whether the witness's confidence in the identification was reported immediately and before the possibility of any confirmatory feedback; avoiding confirmatory feedback after an identification; and avoiding multiple viewings of the same suspect in successive lineups; whether the witness had spoken with anyone outside of law enforcement about the identification, and what was discussed; and whether the witness initially chose someone other than the suspect in the lineup. [If a one-person showup is at issue, the court should determine whether it was performed more than two hours after the event, since research has shown that the accuracy of identifications drops off significantly after that time.]

Estimator Variables: whether the event involved a high level of stress; whether a visible weapon was used during a crime of short duration; how much time the witness had to observe the event; the distance and lighting conditions; relevant characteristics of the witness that would affect his or her ability to see or recall the event  (including age and intoxication); relevant characteristics of the perpetrator that might impede an accurate identification (e.g., hat, sunglasses, facial hair); memory decay; cross-racial identification; exposure to suggestion by private actors such as other witnesses; and the time between the event and the lineup; and the speed with which the witness makes an identification from a lineup.

The court evaluated the effect of each of those factors on the accuracy of identifications, citing literature and expert testimony from the hearing.  The court also evaluated evidence from studies measuring jurors' understanding of the science of memory and the psychology of eyewitness identification. The studies concluded that jurors often hold beliefs that run counter to the reality reflected in the research.

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Chapter 31: Identification: Eyewitness (Mistaken Identity)

31.1 Eyewitness Identification Strategy: Early Preparation And Development Of"Total-Case" Strategy

The Shellow Instructions

Evidence: Eyewitness Identification

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F 2.92 Eyewitness Factors

F 315.1.1 Eyewitness Identification: General

F 315 Note 20 Factors Affecting Reliability Of Eyewitness Identification

The Manson v. Brathwaite (1977) 432 US 98 Test Needs to Be Revised (New Jersey)

On the strength of the evidence before it, State v. Henderson (N.J. 2011) 208 N.J. 208, 27 A3d 872  determined that the factors supporting admissibility of an identification articulated in Manson v. Brathwaite (1977) 432 US 98 [53 LEd2d 140; 97 SCt 2243], are no longer valid in light of subsequent research findings. (Id. at 286.) Those factors, as stated in Manson, "include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation." (Id., 432 U.S. at 114.)   “But three of those factors – the opportunity to view the crime, the witness' degree of attention, and the level of certainty at the time of the identification – rely on self-reporting by eyewitnesses; and research has shown that those reports can be skewed by the suggestive procedures themselves and thus may not be reliable.  Self-reporting by eyewitnesses is an essential part of any investigation, but when reports are tainted by a suggestive process, they become poor measures in a balancing test designed to bar unreliable evidence.” (State v. Henderson, 208 N.J. at  286.)

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Chapter 31: Identification: Eyewitness (Mistaken Identity)

31.1 Eyewitness Identification Strategy: Early Preparation And Development Of"Total-Case" Strategy

The Shellow Instructions

 Evidence: Eyewitness Identification

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F 2.92 Eyewitness Factors

F 315.1.1 Eyewitness Identification: General

F 315 Note 19  The Manson v. Brathwaite(1977) 432 US 98 Test Needs to Be Revised

New Jersey Supreme Court Issues Major Decision On Eyewitness Identifications

State v. Henderson (N.J. 2011) 208 N.J. 208, 218, 27 A3d 872 found “convincing proof” that the current test for evaluating the trustworthiness of eyewitness identifications unreliable. “Study after study revealed a troubling lack of reliability in eyewitness identifications. From social science research to the review of actual police lineups, from laboratory experiments to DNA exonerations, the record proves that the possibility of mistaken identification is real. Indeed, it is now widely known that eyewitness misidentification is the leading cause of wrongful convictions across the country.” (Ibid.)

Henderson challenged the eye witness identification on the ground that the officers unduly influenced the choice of Henderson's photo. The trial judge ruled against Henderson but the intermediate appellate court reversed the conviction based on the suggestive lineup procedure which violated the attorney general’s eye witness guidelines which required that the officer conducting the photo lineup not know which of the photos is the suspect.  The New Jersey Supreme Court granted certification and granted applications by the Innocence Project and the Association of Criminal Defense Lawyers of New Jersey to appear as amici curiae.  The amici argued, among other things, that the state's court-created procedures for determining the admissibility of eyewitness identification testimony, which were based on the test articulated by the United States Supreme Court in Manson v. Brathwaite (1977) 432 US 98 [53 LEd2d 140; 97 SCt 2243], were outdated and problematic in light of more recent scientific research.  In response, the state Supreme Court appointed a Special Master to evaluate the scientific and other evidence about eyewitness identification.  The Special Master held a ten-day hearing, at which seven experts testified and 200 scientific articles were admitted into evidence, and issued an extensive report.  The Innocence Project called witnesses in addition to those called by the parties.

In an opinion that is a compendium of the scientific research about eyewitness identification and the role of various factors that contribute to the misidentification of suspects the Supreme Court concluded that "the science abundantly demonstrates the many vagaries of memory encoding, storage, and retrieval; the malleability of memory; the contaminating effects of extrinsic information; the influence of police interview techniques and identification procedures; and the many other factors that bear on the reliability of eyewitness identifications." (State v. Henderson, 208 N.J. at 283 [internal quotations marks omitted].)

In sum, the opinion is a comprehensive and valuable resource for researching sources of error in eyewitness identifications. 

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Chapter 31: Identification: Eyewitness (Mistaken Identity)

31.1 Eyewitness Identification Strategy: Early Preparation And Development Of"Total-Case" Strategy

The Shellow Instructions

Evidence: Eyewitness Identification

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F 2.92 Eyewitness Factors

F 315.1.1 Eyewitness Identification: General

F 315 Note 18 New Jersey Supreme Court Issues Major Decision On Eyewitness Identifications

Propriety Of Partial Verdict When Jury Votes Not Guilty On The Greater Offense But Hangs On The Lessor – Certiorari Granted (USSC)

In Blueford v. Arkansas, 2011 Ark. 8 (Ark. 2011) the USSC granted certiori to answer the following question:

“Whether, if a jury deadlocks on a lesser-included offense, the Double Jeopardy Clause bars reprosecution of a greater offense after a jury announces that it has voted against guilt on the greater offense.”

Jurisdictions are split on the issue of partial verdicts. The majority hold that if a single charge includes multiple degrees of offenses, the trial court may not conduct a partial-verdict inquiry as to the offenses included within the charge. See, e.g., People v. Richardson, 184 P.3d 755 (Colo, 2008); People v. Hall, 324 N.E.2d 50 (Ill. 1975); State v. Bell, 322 N.W.2d 93 (Iowa 1982); Statev. McKay, 535 P.2d 945 (Kan. 1975); Commonwealth v. Roth, 776 N.E.2d 437 (Mass. 2002); State v. Booker, 293 S.E.2d 78 (N.C. 1982); Peoplev. Hickey, 303 N.W.2d 19 (Mich. Ct. App. 1981).

The minority construes double jeopardy to require a partial verdict of acquittal as to the greater offenses if the jury is deadlocked only as to the lesser offenses. See, e.g., Stone v. Superior Court, 646 P.2d 809 (Cal. 1982); State v.Tate, 773 A.2d 308 (Conn. 2001); State v. Pugliese, 422 A.2d 1319 (N.H. 1980); Whiteaker v. State, 808 P.2d 270 (Alaska Ct. App. 1991). These courts focus on the fact that there can be no "manifest necessity" warranting the declaration of a mistrial where the circuit court makes no inquiry into the jury's deliberations as to the greater offenses. People v.Anderson, 211 P.3d 584 (Cal. 2009).

The court appears to be holding Harrison v. Gillespie, No. 11-168, a capital case, pending its decision in Blueford later in the term.  The Ninth Circuit en banc opinion denied relief by a 6-5 vote in Harrison v. Gillespie, 640 F.3d 888 (9th Cir. 2011).

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287.4 Partial Verdict

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F 3517 Inst 3 Jury Should Be Instructed Upon Partial Verdict

Each Issue Of Fact Must Be Submitted To The Jury (Tennessee / Texas)

"It is well-settled in Tennessee that a defendant has a right to a correct and complete charge of the law so that each issue of fact raised by the evidence will be submitted to the jury on proper instructions." State v. Farner, 66 S.W.3d 188, 204 (Tenn. 2001) (citing State v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000); see also State v. Trusty, (Tenn. Crim. App. 4/23/2010,  No. M2008-02653-CCA-R3-CD). Accordingly, trial courts have the duty to give "a complete charge of the law applicable to the facts of the case." State v. Davenport, 973 S.W.2d 283, 287 (Tenn. Crim. App. 1998) (citing State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986)). A trial judge’s denial of a request for special jury instructions is error if the other instructions do not fully and fairly state the applicable law. State v. Trusty, supra; see also Oursbourn v. State, 259 S.W.3d 159, 177 (Tex.Crim.App. 2008).

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270.4 Reasonable Doubt Standard: General Principles

296.2.3.2 Standard Of Prejudice On Appeal: Removal Of A Single Element

296.2.3.3 Standard Of Prejudice On Appeal: Removal Of A Single Element Requiring Less Than Proof Beyond a Reasonable Doubt

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PG X(C)(1)(b) Removal Of A Single Element

PG X(C)(1)(b)(I) Removal Of A Single Element Requiring Less Than Proof Beyond a Reasonable Doubt

Sample Instruction: Burden Of Proof Beyond A Reasonable Doubt (Pennsylvania)

A fundamental principle of our system of criminal law is that the Defendant is presumed to be innocent. The mere fact that he is arrested, and is accused of a crime, is not any evidence against him. Furthermore, the Defendant is presumed innocent throughout the trial and unless and until you conclude, based on careful and impartial consideration of the evidence, that the Commonwealth has proven him guilty beyond a reasonable doubt.

It's not the Defendant's burden to prove that he is not guilty. Instead, it is the Commonwealth that always has the burden of proving each and every element of each crime charged and that the Defendant is guilty of those crimes beyond a reasonable doubt.

If the Common wealth's evidence fails to meet its burden on any one of the charges then your verdict must be not guilty. On the other hand, if the Commonwealth's evidence does prove, beyond a reasonable doubt, that the Defendant is guilty, then your verdict should be guilty.

Although the Commonwealth has the burden of proving that the Defendant is guilty, this does not mean that the Commonwealth must prove its case beyond all doubt, or to a mathematical certainty, because there are few things in life that we can be absolutely certain about.

Nor must it demonstrate the complete impossibility of innocence. A reasonable doubt is a doubt that would cause a reasonably careful and sensible person to hesitate before acting upon a matter of importance in his or her own affairs.

A reasonable doubt must fairly arise out of the evidence that was presented, or out of the lack of evidence presented, with respect to some element of the crime.

A reasonable doubt must be a real doubt. It may not be an imagined one, nor may it be a doubt manufactured to avoid carrying out an unpleasant duty.

So, to summarize, you may not find the Defendant guilty on mere suspicion of guilt. The Commonwealth has the burden of proving the Defendant guilty beyond a reasonable doubt with respect to each of these charges. If it meets that burden, then the Defendant is no longer presumed innocent, and you should find him guilty.

On the other hand, if the Commonwealth has not met its burden, then you must find him not guilty.

[Source: Given and approved in Commonwealth v. Janda, 2010 Pa. Dist. & Cnty. Dec. LEXIS 117, 69-74 (Pa. County Ct. 4/22/2010,  No. CR-703, 4266-2008).]

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Chapter 270: Burdens And Standards Of Proof

270.2 Presumption Of Innocence - Prosecution Burden To Prove Guilt

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Reasonable Doubt

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F 2.90 Reasonable Doubt

PG VII(C)(8) Improper Shifting Of The Burden Of Proof

PG VII(G) - Burdens and Presumptions: Allocating the Burden of Proof as to Statutory Exception to Liability

Sample Instruction: Jurors Must Follow The Judge's Instructions And Not Conflicting Statements By Counsel (Ohio)

It's the role and obligation of the Court to tell you what the law is, okay. It's not the obligation or the role of the attorneys to tell you what the law is and the instruction of law come from me. And I tell you what the law is. So if what the attorneys tell you the law [differs from] what I tell you, you are to believe me, because that is my job.

So please – as a courtesy to the attorneys, I provide them copies of my proposed instructions ahead of time, so they have some idea what I'll instruct.  But the law comes from this court. If there are any differences, you'll accept what I tell you is the law.

[Source: Given and approved in State v. Bates, 2010 Ohio 1723, P24-P70 (Ohio Ct. App., Butler County 4/19/2010, No. CA2009-06-174); see also State v. Fuller, Butler App. Nos. CA2000-11-217, CA2001-03-048, CA2001-03-061, 2002 Ohio 4110, P35;  State v. Benge (Dec. 5, 1994), Butler App. No. CA93-06-116, 1994 Ohio App. LEXIS 5419.]

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3.2 Duty Of Court To Act On It's Own Motion (Sua Sponte Duties)

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

PG V(A) - Sua Sponte Duties

Conflicting Instructions Require New Trial When Jurors May Have Acted Upon The Incorrect Instruction (North Carolina)

"When a judge undertakes to define the law he must state it correctly, and if he does not, it is prejudicial error sufficient to warrant a new trial." State v. Stroupe, 238 N.C. 34, 40, 76 S.E.2d 313, 318 (1953). Thus, the North Carolina Supreme Court “has uniformly held that where the court charges correctly in one part of the charge, and incorrectly in another part, it will cause a new trial, since the jury may have acted upon the incorrect part of the charge." Id. at 40-41, 76 S.E.2d at 318; see also State v. Armstrong, 691 S.E.2d 433, 437-440 (N.C. Ct. App. 4/20/2010, No. COA09-1276); State v. Castaneda, 196 N.C. App. 109, 118, 674 S.E.2d 707, 713 (2009).

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300.4.5 Constitutional Claims: Contradictory Instructions On Element

309.3.3  Conflicting Instructions On Elements

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PG X(B)(14) Standard Of Prejudice: MisinstructionOr Conflicting Instructions On An Element Of The Offense

Failure To Instruct Grand Jury On Accessory Liability Undermined Integrity Of The Indictment (New York)

In New York a grand jury “‘need not be instructed with the same degree of precision that is required when a petit jury is instructed on the law" and the Court of Appeals has "deem[ed] it sufficient if the District Attorney provides the Grand Jury with enough information to enable it intelligently to decide whether a crime has been committed and to determine whether there exists legally sufficient evidence to establish the material elements of the crime.’ [Citations]." People v Malan-Pomaeyna, 2010 NY Slip Op 3353, 1-2 (N.Y. App. Div. 2d Dep't 4/20/2010, No. 2009-06136.)

However, “‘[w]hen the District Attorney's instructions to the Grand Jury are so incomplete or misleading as to substantially undermine [its] essential function, it may fairly be said that the integrity of that body has been impaired.’ [Citations]." Ibid. Accordingly, in Malan-Pomaeyna the People's “failure to instruct the grand jury on accessorial liability impaired the integrity of that body.” Ibid.

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Chapter 11: Grand Jury

Chapter 68: Accessory After The Fact

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PG I(J) - Instructions to Grand Jury

F 6.40 Accessories

F 440 Accessories

New Jersey Appellate Court Holds That Prosecutor’s Misconduct Which Undermined Defense Counsel’s Closing Argument Could Not Be Cured By Cautionary/Limiting Instruction

The decision on whether inadmissible evidence is of such a nature as to be susceptible of being cured by a cautionary or limiting instruction, or instead requires the more severe response of a mistrial, is one that is peculiarly within the competence of the trial judge, who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting.

Nevertheless, in State v. Mosby, 2010 N.J. Super. Unpub. LEXIS 848, 10-20 (App.Div. 4/19/ 2010, [Notice: This opinion is UNPUBLISHED], No. A-3233-08T4) the reviewing court concluded that the instruction provided to the jury did not cure the prejudice that resulted from the prosecutor's improper action. The curative  instruction came after defense counsel had already forcefully argued his position and therefore it would have been difficult, if not impossible, for the jury to ignore all that it had already heard.

Moreover, the misconduct had the clear capacity to undermine defense counsel's credibility. If the jury believed that defense counsel had not been candid when he asserted that the defense made every effort to call the witness, the jury also could believe that the remainder of counsel's closing argument was not worthy of belief.

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272.4 Prosecutor Misconduct During Summation/Closing Argument

272.5 Summation/Closing Argument: Prosecutor Misconduct -- Curative Instructions

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Prosecution Misconduct

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PG VII(C)(46) Prosecution Misconduct As Constitutional Violation

F 2.019 Prosecutorial Misconduct

Propriety Of “Special Findings” By The Jury (New Hampshire)

State v. Dilboy, 160 N.H. 135, 157-163 (N.H. 2010, 4/20/2010,  No. 2008-287) considered the propriety of “special findings” or “special verdicts” in criminal cases.  Initially the court noted that although the parties use the term “special verdict” to describe the form used by the trial court, “[a] true special verdict is one where the jury does not render a general verdict of guilty or not guilty, but simply finds certain facts and leaves the rest to the court.” Note, Beyond “Guilty” or “Not Guilty”: Giving Special Verdicts in Criminal Jury Trials, 21 Yale L. & Pol'y Rev. 263, 263 (2003). Accordingly, “[t]rue special verdicts are almost never used in criminal cases, because by taking away the jury's power to render a verdict, they violate the Sixth Amendment right to have a jury make the ultimate determination of guilt.” Note, supra at 263; see United States v. Spock, 416 F.2d 165, 180 (1st Cir. 1969) (“In a criminal  case a court may not order the jury to return a verdict of guilty, no matter how overwhelming the evidence of guilt.”).  Although a few jurisdictions do not use special findings in criminal trials, see Note, supra at 267-68, 280; State v. Osburn, 211 Kan. 248, 505 P.2d 742, 749 (Kan. 1973), all of the federal circuit courts and forty-six of the state courts have utilized or approved of special findings in criminal trials in limited circumstances. Note, supra at 280.

In Dilboy the reviewing court thoroughly discussed the dangers of special findings but ultimately held that “the trial court did not unsustainably exercise its discretion in submitting the special findings tothe jury because they did not “impermissibly direct[] the course of the jury's deliberation. [Citation].”  

The special findings used in Dilboy were “problematic” for a number of reasons: (1) the jury did not come to a guilty verdict before completing the special findings form. See United States v. Hedgepeth, 434 F.3d 609, 613 (3d Cir. Pa. 2006): United States v. Ruggiero, 726 F.2d 913, 928 (2d Cir. N.Y. 1984) (Newman, J., concurring in part and dissenting in part); (2) although the list of findings tracked the factual allegations in the manslaughter indictments, they posed a number of questions to the jury and thus ran the risk of “directing the jury down a path towards a guilty verdict.” State v. Surette, 130 N.H. 531, 535 (N.H. 1988); see Spock, 416 F.2d at 182; cf. United States v. Southard, 700 F.2d 1, 16 (1st Cir.) (two questions “reduced to a minimum the step by step process of determination of guilt”); (3) the special findings form gave options for the jury to answer only “yes” after each of the questions; and (4) the special findings form had the potential to direct the jury's focus to the “reckless” element of the manslaughter charge. See Gallishaw, 428 F.2d at 766 (cautioning against using forms that “emphasize[] various elements of what the Government is required to prove”).

The fragmentation danger has been described as follows: “The possibility … exists that fragmenting a single count into the various ways an offense may be committed affords a divided jury an opportunity to resolve its differences to the  defendant's disadvantage by saying “yes” to some means and “no” to others, although unified consideration of the count might have produced an acquittal or at least a hung jury. Ruggiero, 726 F.2d at 927 (Newman, J., concurring in part and dissenting in part).

Nevertheless, the Dilboy court did not reverse because the jury’s response to the questions suggested that the form did not impermissibly direct the jurors' deliberations.

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273.1.2 Motion For Unanimity Instruction And Special Findings

273.11 Jury Unanimity: Use Of Special Verdict Forms

287.1 Special Verdicts

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PG VIII(A)   Special Verdicts: General Rule

F 17.01a Motions and Proposed Forms for Unanimity Instruction and Special Findings

Involuntary Intoxication Instruction Not Available For Defendant Who Did Not Know The Marijuana He Smoked Was Laced With PCP (Minnesota)

In State v. McClenton, 781 N.W.2d 181, 187-195 (Minn. Ct. App. 4/20/2010, No. A09-389) the defendant contended that he was involuntarily intoxicated at the time of the offenses because, unbeknownst to the defendant, the marijuana he smoked was laced with phencyclidine (PCP). In Minnesota, to prevail in asserting the defense of involuntary intoxication, the defendant must show that: (1) he "was unaware that because of a particular susceptibility to it the substance would have a grossly excessive intoxicating effect" or "was innocently mistaken as to the nature of the substance taken"; (2) the "intoxication was caused by the intoxicating substance in question and not by some other intoxicant"; and (3) he was temporarily mentally ill at the time of the offenses. See State v. Voorhees, 596 N.W.2d 241, 250 (Minn. 1999) (stating elements to proving a defense of involuntary intoxication).

The issue of whether involuntary intoxication exists when a person voluntarily uses an illegal controlled substance unknowingly laced with some other illegal controlled substance which causes an unanticipated reaction was one of first impression for Minnesota state courts.  The defendant relied on cases from other state and federal jurisdictions, arguing the availability of such a defense. See, e.g., People v. Brumfield, 72 Ill. App. 3d 107, 390 N.E.2d 589, 592-93, 28 Ill. Dec. 422 (Ill. App. Ct. 1979) (holding district court erroneously precluded evidence of involuntary intoxication as a defense to charge of rape based on defendant's offer of proof that he smoked marijuana which he did not know contained "angel dust" and voluntarily drank alcohol, the combined effect of which led to the defendant's involuntary acts); but cf. People v. Hari, 218 Ill. 2d 275, 843 N.E.2d 349, 360, 300 Ill. Dec. 91 (Ill. 2006) (contrasting defendant's alleged involuntary intoxication as an adverse drugged condition resulting from prescribed medication with cases in which the defendant's "drugged condition was a result of the defendant's conscious choice").

However, the reviewing court relied on federal decisions from the 8th and 10th Circuits to conclude that defendant could not argue involuntary intoxication because, by voluntarily choosing to smoke marijuana, any resulting intoxication (whatever that may have been) was likewise voluntary.

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256.5 Intoxication, Involuntary

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F 4.22 Voluntary and Involuntary Intoxication

F 4.23 Involuntary Intoxication

F 3427 Involuntary Intoxication

Specific Unanimity: Two Distinct Types Of Embezzlement (Michigan)

In Michigan when the prosecution presents evidence of alternative acts "as evidence of the actus reus element of the charged offense," the general instruction on unanimity will suffice, "unless 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." People v. Cooks, 446 Mich 503, 510-511, 524; 521 NW2d 275 (1994).

Thus, when a prosecutor offers evidence that a defendant committed two or more criminal acts, but charges him with only one offense, the trial court should instruct the jurors that they all have to agree on which of those multiple acts constituted the actus reus of the single charged offense. See, e.g., People v. Quinn, 219 Mich App 571, 576; 557 NW2d 151 (1996); People v. Yarger, 193 Mich App 532, 536-537; 485 NW2d 119 (1992).

In People v. Belcher, (Mich. Ct. App. 4/20/2010, [Notice: This opinion is UNPUBLISHED], No. 289855) there was testimony regarding two distinct types of embezzlement (property and money), and the jury was not specifically advised that they had to agree on a particular instance to convict.  However, the reviewing court concluded that any error was harmless.  

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273.6 When Is Jury Unanimity Instruction Required

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17.01 Juror Unanimity

F 1806 Theft By Embezzlement (PC 484, PC503–515)

Judge Has No Duty To Define “Great Bodily Injury” (Michigan)

"When a word is not defined by statute, this Court presumes that the word is subject to ordinary comprehension and there will be no error warranting reversal as a result of a trial court's failure to define a term that is generally familiar to lay persons and is susceptible of ordinary comprehension." People v Martin, 271 Mich App 280, 352; 721 NW2d 815 (2006); but see these Forecite Blog™ posts: 2/1/10, 6/11/10, 11/19/10. Based on this rule People v. Davis, (Mich. Ct. App. 4/20/2010, [Notice: This opinion is UNPUBLISHED], No. 282185) concluded that because the phrase "great bodily harm" is generally familiar to laypersons and is one of common understanding, the failure to define great bodily harm was not plain error.

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

272.3.5 Admonition Regarding Improper Summation/Closing Argument on Term Contained InInstructions But Not Defined

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

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

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

CHK III - Technical Terms and Definitions

Misdemeanor Offense Of Pointing A Firearm Is Not A Lesser Included Of Felonious Assault (Michigan)

The elements of a necessarily included lesser offense are contained within the greater offense; "it is impossible to commit the greater without first having committed the lesser." People v Bearss, 463 Mich 623, 627; 625 NW2d 10 (2001) (quotation omitted). Accordingly, instruction on a necessarily included lesser offense is proper "if the charged greater offense requires the jury to find a disputed factual element that is not part of the lesser included offense and a rational view of the evidence would support it." People v Cornell, 466 Mich 335, 357; 646 NW2d 127 (2002).

Based on the above principles People v. Hutter, (Mich. Ct. App. 4/22/2010, [Notice: This opinion is UNPUBLISHED], No. 291140) concluded that because felonious assault can be committed without the use of a firearm, it is possible to commit felonious assault without committing the offense of intentionally pointing a firearm at another without malice. Hence,  intentionally pointing a firearm at another without malice is not a necessarily included lesser offense of felonious assault.

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Chapter 265: Lesser Included Offenses: General Principles

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Lesser Included Offense/Other Offense

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Lesser Included Offenses