Jury Instruction Requests: Trial Counsel’s Duties

Note: All references to "FORECITE" refer to FORECITE California, authored by Thomas Lundy and available from James Publishing. Go to: http://jamespublishing.com/books/fc.htm

    General Rules: Counsel has the duty to carefully prepare and request all instructions which in his or her judgment are necessary to explain all legal theories upon which the defense rests. (In re Cordero (88) 46 C3d 161, 189 [249 CR 342]; People v. Sedeno(74) 10 C3d 703, 717, fn 7 [112 CR 1].)

    All non-sua sponte instructions must be requested. These include limiting, amplifying, pinpoint and lesser related offense instructions. (But see People v. Lang (89) 49 C3d 991, 1020 [264 CR 386], recognizing sua sponte duty to give cautionary instructions in "extraordinary circumstances"; see also People v. Milner (88) 45 C3d 227, 251-52 [246 CR 713]; People v. Collie (81) 30 C3d 43, 63-64 [177 CR 458] [sua sponte duty to give limiting instruction when prior crime or evidence is highly prejudicial, minimally relevant and a "dominant" part of the evidence].)

    Form of Request: The form of a requested instruction must identify (1) the requesting party; (2) be numbered consecutively; (3) provide supporting authority at the bottom and (4) be submitted on standard pleading paper. (See Rule 229.)

    When requesting instructions, defense counsel should:

    a. Identify whether the instructions are a supplement or a replacement for a standard CALJIC instruction; and

    b. Place in the record argument as to why the CALJIC instructions were deficient and why the proposed instructions would "better serve the interest of justice." (People v. Rupe (88) 206 CA3d 1537, 1542 [256 CR 126].)

    When a requested instruction is a modified CALJIC instruction, the party should indicate "by use of parenthesis or other appropriate means" the respect in which it is modified. (California Rules of Court, Division I, Appendix § 5, Judicial Admin. Standards.)

    When To Request: All requested instructions must be submitted before argument. (PC 1093.5.) However, if argument raises issues not covered by the instructions, counsel may propose additional instructions. (PC 1093.5.)

    Defendant Must Request Fuller Instructions During Jury Selection: When, during jury selection, the court gives prospective jurors instructions regarding the nature of the proceedings if counsel desires a fuller explanation additional instruction should be requested. (People v. Livaditis (92) 2 C4th 759, 780-81 [9 CR2d 72].)

    Requests Concerning Sequence of Instructions: When useful counsel should request a sequence of instructions different from the CALJIC numerical sequence. (People v. Carrasco (81) 118 CA3d 936, 941-44 [173 CR 688].)

    The sequence of the instructions is a matter in the discretion of the trial court. (Nungaray v. Pleasant Valley etc Assn.(56) 142 CA2d 653, 661-62 [300 P2d 285].) However, it is also an "obvious fact that the sequence of instructions can, in some cases, result in jury confusion." (People v. Carrasco, supra, 118 CA3d at 943.) "'The instructions should be arranged in a logical sequence so that the whole will be intelligible to the jury. Symmetry is as necessary to legal exposition for easy understanding as it is to any other form of literary exposition.'" (Ibid., quoting address of Chief Judge Devitt.) Nor does the CALJIC numbering system necessarily supply the most logical sequence. "The editors of CALJIC could not have meant to sequence the instructions to relieve the court of all initiative and responsibility." (Carrasco 118 CA3d at 944.)

    The following quotation shows how the sequence of the instructions may impact the jury deliberations: "Considering the instructions as a whole, we note that the murder instruction precedes the two voluntary manslaughter instructions. This has significance because just as a supplemental instruction may take on special prominence in the jury's mind, [citation to Bollenbach v. U.S. (46) 326 US 607, 611-12 [90 LEd 350]] so the murder instruction stands at the top of the jury instruction check-list. Jurors are therefore encouraged by the structure of the instruction to answer its requirements first and then move on only if those requirements cannot be met." (Falconer v. Lane (7th Cir. 1990) 905 F2d 1121, 1136.

    Unreported in-chambers discussions, except in death cases (PC 190.9), are not normally part of the record on appeal. (See People v. Gzikowski (82) 32 C3d 580, 584, fn 2 [186 CR 339].) However, even in death cases the parties may waive the right to have a matter transcribed. (People v. Cummings (93) 4 C4th 1233, 1333, fn 68 [18 CR2d 796].) And, even in the absence of a waiver, the complaining party still bears the burden of demonstrating that the appellate record is not adequate to permit meaningful appellate review. (Ibid.)

    Hence, instruction conferences should be reported or thoroughly memorialized on the record afterward. (See Margolin, Preservation of the Record on Appeal, Vol. 21, No. 1, CACJ Forum, pp. 68-69, regarding the necessity of having a reporter present during any in-chambers discussion of jury instructions.) (See Margolin, Preservation of the Record on Appeal, Vol. 21, No. 1, CACJ Forum, pp. 68-69, regarding the necessity of having a reporter present during any in-chambers discussion of jury instructions. (Regarding record of any response to jury inquiry during deliberations, see FORECITE PG IX(B).)

    When trial counsel submits requested instructions which are refused, the trial court is obligated to include those instructions in the clerk's record on appeal (Cal. Rules of Court, rules 4.5 and 33(a)(1)(h)). However, trial counsel should double check to assure that all refused instructions are included in the record because, once the matter is on appeal, appellate counsel may not be aware of the refused instructions and/or it may be necessary to file a motion to have the record augmented and/or settled.

    Failure to Request Necessary Jury Instructions as Ineffective Assistance of Counsel: The failure of trial counsel to fulfill his or her duty to request proper jury instructions may constitute ineffective assistance of counsel. (See People v. Sedeno (74) 10 C3d 703, 717, n 7 [112 CR 1] discussing trial counsel's duty to request proper instructions; see also, In re Cordero (88) 46 C3d 161, 189-91 [249 CR 342], J. Mosk, conc.; U.S. v. Span (9th Cir. 1996) 75 F3d 1383 [trial counsel's failure to request instruction on one of four available defenses violated defendant's right to effective assistance of counsel]; Woodard v. Sargent (8th Cir. 1986) 806 F2d 153, 157; Arrowood v. Clusen (7th Cir. 1984) 732 F2d 1364, 1371-72; Lankford v. Foster (W.D. Va. 1982) 546 F Supp 241, 249-53; People v. Gonzales (75) 543 P2d 72, 73-74 [37 ColoApp 8]; Patterson v. Dahm (D.Neb 1991) 769 F Supp 1103, 1108-13 [IAC for requesting instruction on uncharged lesser related offense]; People v. Jaffee (86) 493 NE2d 600, 610-11 [145 IllApp3d 840] [IAC for failure to request self-defense instructions]; People v. Butler (74) 318 NE2d 680, 683 [23 IllApp3d 108] [IAC for requesting erroneous definition of the standard of proof and failure to request accomplice instructions]; People v. Marshall UNPUBLISHED (F016198) [failure to request antecedent threat instruction (FORECITE F 5.12a) held to be IAC].) [A copy of the Marshall opinion is available to FORECITE subscribers. Ask for Opinion Bank # O-131.] In People v. Webb DEPUBLISHED (94) 27 CA4th 242, 256 [32 CR2d 582], the court reversed a murder conviction based on ineffective assistance of counsel for failure to request that CJ 4.21 specifically require the jury to consider intoxication in determining whether the defendant formed the mental state of premeditation and deliberation. (See also FORECITE F 4.21 n9; but see People v. Castillo(97) 16 C4th 1009 [68 CR2d 648] [no IAC for failure to relate CJ 4.21 to mental state].)

    However, reversal for ineffective counsel is the exception rather than the rule. In most cases the client’s best and only shot at obtaining a winning edge from jury instructions will depend on the effectiveness of counsel’s instruction requests.

RETURN TO TABLE OF CONTENTS