by Thomas Lundy

(March 2001)

[This is the first in a series of articles addressing the role of standard pattern instructions in American criminal jurisprudence. It is the premise of these articles that judges and practitioners are overly deferential to the standard pattern instructions to the point that jury instruction practice often is almost entirely removed from the adversarial arena. It is hoped that these articles will provide conceptual, legal and practical ideas for reversing the trend toward "jury instruction by number" and returning vigorous pro-active advocacy to criminal jury instruction practice.]

    Pattern instructions were developed primarily for reasons of judicial efficiency. Despite the lip-service given to concerns of clarity and juror understanding, in practice the standard instructions serve the primary purpose of allowing the judge and attorneys to spend less time working on jury instructions. "Pattern instructions, widely available today, are a fairly recent phenomenon, evolving from the desire of judges to dispense with the need to reinvent the wheel with each set of jury instructions. In addition to the perceived savings in time, impetus for the development of pattern instructions was provided by the belief that pattern instructions would be less partial, lead to uniformity in the treatment of cases, result in fewer appeals, and aid in juror comprehension of instructions. The grandfather of pattern instruction projects is widely regarded as the 1938 California Book of Approved Jury Instructions (BAJI) for civil cases, which was followed by a counterpart for criminal cases in 1945. The lead of California was picked up quickly by other states, as well as federal courts, so that the jurisdiction without pattern instructions is a nearly extinct animal." (BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) §131.101[6][c]; see also generally, Nieland, Pattern Jury Instructions: A Critical Look at a Modern Movement to Improve the Jury System (1979).)

    The huge demands which criminal litigation imposes on both the bench and bar has led to growing acceptance of, and reliance on, standard pattern instructions as a way of saving time and effort. In fact, pattern instructions often preempt the adversarial process with regard to jury instructions. "The proliferation of pattern instructions has lulled many judges and lawyers into a sense of complacency, pre-instruction discussions degenerating into an exercise of checking off numbers on a list." (BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) § 131.101; see also "Jury Instructions: A Judicial Perspective," by Hon. Dennis C. Kolenda, Circuit Judge, Grand Rapids, Michigan.

`The standard pattern instructions, no matter how respected and established, may not alone be sufficient to assure that the jury will "accomplish its constitutionally mandated purpose." (McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 836.) "Jury instructions are only judge-made attempts to recast the words of statutes and the elements of crimes into words in terms comprehensible to the lay person. The texts of 'standard' jury instructions are not debated and hammered out by legislators, but by ad hoc committees of lawyers and judges. Jury instructions do not come down from any mountain or rise up from any sea. Their precise wording, although extremely useful, is not blessed with any special precedential or binding authority. This description does not denigrate their value, it simply places them in the niche where they belong." (Id. at 840.)

    "While ... [pattern instructions] may be useful for the purpose of supplying guidelines to the trial courts, we believe that instructions to the jury must be molded to fit the factual context of each case. An instruction approved in one case, or indeed in many similar cases, may not be sufficient for the particular case at bar if the comparative circumstances are not identical or substantially similar." (U.S. v. Barber (3rd Cir. 1971) 442 F2d 517, 527-8.) One of the virtues of pattern instructions is at the same time one of its greatest vices—by definition, the universal instruction lacks the individual tailoring that makes it truly fit the facts of a case. (BNA Criminal Practice Manual (Pike & Fisher Inc. 1999), § 131.101[6][c] "Pattern Drafted Instructions"; (UNIFORM CRIMINAL JURY INSTRUCTIONS (OREGON), UCrJI User’s Guide I-C (G-3, 10/94)) [Criminal Jury Instructions User’s Guide] (Oregon State Bar, 1998 ), ["One disadvantage of the uniform jury instructions is that court and counsel tend to rely too much on them"].) Moreover, pattern instructions will always be of limited value to the advocate because they are typically "the result of compromise" -- a necessary outgrowth of committee dynamics -- and normally "no provision for the dissenting viewpoint is available." (REVISED ARIZONA JURY INSTRUCTIONS (CRIMINAL) RAJI p. iii. [Important Notice] (CLE State Bar of Arizona, 1996).)

    Pattern instructions are also of limited value in identifying or resolving issues which have not been specifically addressed by the courts or legislature. (See e.g., SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL Introductory Committee Note [Committee-Note] (State Bar of South Dakota, 1996) ["The Committee urges that particular caution be exercised in the use of these instructions involving matters of law which have not been passed upon by the South Dakota Supreme Court. The reference material cited with such instructions may show divisions of authority, requiring careful study to anticipate the rule which our Supreme Court may follow"].)

    The need for criminal practitioners to look beyond the pattern instructions is widely recognized. "Counsel should closely review standard jury instructions before they are given and aggressively move to supplement such instructions to preserve the accused’s right to propound his or her theory of defense." (McSorley, Portable Guide to Federal Conspiracy Law - Developing Strategies for Criminal and Civil Cases (ABA, 1996) p. 185.) "The value of defense-prepared and defense-submitted jury instructions should not be underestimated. Failing to aggressively to investigate and pursue theory of defense instructions simply cedes the playing field to the government and may forfeit valuable appellate rights by not preserving the record. ... Examples abound where persistent defense counsel, by aggressively pursuing theory of defense instructions, have saved the day either in obtaining a favorable verdict or by setting the stage for an appeal that overturned the conviction." (Id. at 188.)

    The rote recitation of general form instructions will not always suffice to fulfill the court's instructional obligations. (People v. Thompkins (CA 1987) 195 CA3d 244, 250 [240 CR 516], see also U.S. v. Lofton (10th Cir. 1985) 776 F2d 918, 922; Wright v. U.S. (DC Cir. 1957) 250 F2d 4, 11.) The court "should not require a party to rely on abstract generalities ... but should instruct the jury in terms that relate to the particular case before it. [Citation]." (Fish v. L.A. Dodgers Baseball Club (CA 1976) 56 CA3d 620, 642 [128 CR 807]; see also People v. Rollo (CA 1990) 20 C3d 109, 123 fn 6 [141 CR 177].)

    Hence, trial courts have been warned to "examine [pattern instructions] carefully before using them to ensure their accuracy and appropriateness to the case at hand." (People v. Petrella (MI 1985) 380 NW2d 11, 36; see also People v. Anderson (MI 1988) 421 NW2d 200, 207.)

    "[T]he fact that pattern jury instructions are available should not preclude a judge from modifying or supplementing a pattern instruction to suit the particular needs of an individual case .... The thrust of such objection goes not to the use of pattern instructions themselves, but rather to the practice of rote reliance upon such instructions without modification, a practice that may develop simply by virtue of their existence .... [P]attern instructions should be modified or supplemented by the court when necessary to fit the particular facts of a case." (American Bar Association, ABA Standards for Criminal Justice Discovery and Trial by Jury (ABA, 3rd ed., 1996) Standard 15-4.4 pp. 236-237.)

    "The lesson is that a Circuit’s pattern jury instructions are certainly helpful, but they do not always adequately cover all situations. Blind adherence to them may deprive an accused of a viable defense." (McSorley, Portable Guide to Federal Conspiracy Law - Developing Strategies for Criminal and Civil Cases (ABA, 1996) p. 189.)

    In many jurisdictions jury instruction committees expressly warn against exclusive or inflexible reliance upon the pattern instructions. Indeed, as the excerpts below explain, the trial judge and attorneys must always be free to modify or supplement the pattern instructions to comport with the circumstances of the individual case.

    "Be careful, however, of the lawyer’s tendency to...copy from a form book...without taking the time to ponder what is appropriate in this case." (1ST CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL [Afterward: How to Draft a Charge] p. 140. (1998).)

    "Many instructions require the giving of additional or accompanying instructions. The Committee has tried to make explicit cross-references wherever possible, but gives no warranty that it has done so exhaustively. In some circumstances, instructions other than or in addition to those referenced may be appropriate." (7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL [Introduction] p. 1 (1999).) "These instructions were drafted based on the most common factual and legal scenarios. The Committee anticipates that changes in the language of the instructions may be appropriate in particular cases." (Ibid.)

    "The instructions in this manual are models. They must be reviewed carefully before used in a particular case. They are not a substitute for the individual research and drafting that may be required in a particular case, nor are they intended to discourage juries from using their own forms and techniques for instructing juries." (9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL p. V [Introduction] (2000); see also McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 840.)

    "As a caveat, let us remind you that each case is somewhat different and forms are written to fit the average case or transaction. Consequently, each case or transaction must be carefully scrutinized to determine which charges will be required to meet the need of the particular case. Of course, we have not attempted to include every charge for every case. Also we wish to remind you [of] the importance of keeping abreast of the changing statutory and court interpretations. One should always check... [the] applicable statutes and intervening appellate decisions before relying on any charge." (ALABAMA PATTERN JURY INSTRUCTIONS - CRIMINAL Preface pp. i-ii.) [Preface] (Alabama Bar ICLE, 3rd ed. 1994).)

    "Realistically, pattern instructions cannot encompass all possible scenarios. Judges must adapt pattern charges to fit the cases before them. ... [o]ne of a judge’s most important functions is to instruct a jury. Pattern instructions assist the judge in this task, but they do not eliminate the need for much thought on the part of the judge. The committee recommends both the careful selection and use of these instructions." (ALABAMA PATTERN JURY INSTRUCTIONS - CRIMINAL Introduction p. iii. [Introduction] (Alabama Bar ICLE, 3rd ed. 1994).)

    Pattern instructions are of limited value to the advocate because they are typically "the result of compromise" -- a necessary outgrowth of committee dynamics -- and normally "no provision for the dissenting viewpoint is available." (REVISED ARIZONA JURY INSTRUCTIONS (CRIMINAL) RAJI p. iii. [Important Notice] (CLE State Bar of Arizona, 1996).)

    "...[J]udges, prosecutors and defense attorneys in California should "understand both [the] value of CALJIC recommendations, and their limitations." (McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 841; see also California Rules of Court, Appendix, Div. § I, Section 5 [no preference to CALJIC instructions].)

    "No approval of these instructions by the Court could relieve the trial judge of [the] responsibility under the law to charge the jury properly and correctly in each case as it comes before him. This order is not to be construed as any intrusion on that responsibility of the trial judges." (FLORIDA STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES p. x.) [Order of Supreme Court Adopting Pattern Instructions] (Florida Bar, 1981).)

    "Obviously, no suggested charges can cover every situation and the task will ever belong to the trial judge to tailor the charged material to the case on trial." (GEORGIA SUGGESTED PATTERN JURY INSTRUCTIONS - CRIMINAL CASES, p. vii.) [Preface] (Carl Vinson Institute of Government, University of Georgia, 2nd ed. 1999).)

    "These instructions are not intended to provide jury instructions which are applicable without change in all cases. Instead, they will provide judges and lawyers with models of clear, concise, accurate, and impartial instructions which are understandable to the average juror. They can be adapted for use in particular cases or used as a guide for tailoring instructions." (IOWA CRIMINAL JURY INSTRUCTIONS Introduction.) [Introduction] (Iowa State Bar Association, 1997).)

    "The instructions and brief comments are not, however, a substitute for critical lawyering skills." (Joseph & LaMonica, LOUISIANA CIVIL LAW TREATISE CRIMINAL JURY INSTRUCTIONS Preface p. vii.) [Preface] (West, 1994).)

    The role of pattern jury instructions should be "to provide a uniform basis of experience, but to in no way suggest a mandate, with regard to dealing with juries. Each case is unique. Jury procedures and instructions must be adjusted to the specific facts and circumstances of the case. Further, judges themselves have different styles of instructing the jury and different word usages with which they are comfortable." (Alexander, MAINE JURY INSTRUCTIONS MANUAL p. xiii. [Preface To The Third Edition] (Lexis, 1999).) "While representative jury instructions often are helpful, it is neither sufficient nor advisable to rely solely on such an instruction.... [I]nstructions should be developed in a manner that explains the law to the jury in the context of the individual case." (State v. Ashley (ME 1995) 666 A2d 103, 107.)

    "We hope that this text will relieve judges and lawyers of the burden of drafting basic instructions. However, there is still the need to draft instructions, or modify instructions to accommodate the circumstances of a particular case." (MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS, MPJI-Cr Intro. p. xi.) [Introduction] (Micpel, 1999).)

    "For the really important jury instructions in a case, pattern jury instructions should be the beginning rather than the end of the process of preparing the instructions....[t]he pattern jury instructions and commentary will be of maximum value as a basis for instructing a jury when used as a guide to what legal principles should be propounded, an aid in draftsmanship, and a source to facilitate further legal research." (Aaronson, MARYLAND CRIMINAL JURY INSTRUCTIONS AND COMMENTARY Introduction p. xv.) [Introduction To 1999 Supplement] (Lexis, 2nd ed. 1988).)

    NORTH DAKOTA PATTERN JURY INSTRUCTIONS, NDJI-Criminal Introduction:; General Directions, p. 5 [General Directions For Use 1(b); 1(c)] (State Bar Association of North Dakota, 1985) [instructions are not all inclusive and do not cover every possible legal principle even as to the subjects which are covered; instructions must be modified in light of new statutes and appellate decisions; parties are entitled to instructions as to their theories of the case].

    "The uniform instructions do not cover all the possible issues that may arise at trial and do not have the force and effect of a statute. There is no statutory requirement that instructions be given in uniform jury instruction form. The uniform instructions serve only as a framework for building a set of instructions. One disadvantage of the uniform jury instructions is that court and counsel tend to rely too much on them. Special instructions must often be drafted for situations not contemplated by the uniform instructions." (UNIFORM CRIMINAL JURY INSTRUCTIONS (OREGON), UCrJI User’s Guide I-C (G-3, 10/94) [Criminal Jury Instructions User’s Guide] (Oregon State Bar, 1998).)

    "[D]rafting proposed instructions is not a mechanical process even if pattern jury instructions are available." (Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS Introduction (C)(1) [Basic Framework For All Trials] (South Carolina CLE, 1994).) "Even where the law is clear and settled, pattern or form jury charges often require rephrasing in order to apply them to the circumstances of a particular case." (Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS Introduction, (B)(2)(b)(2) [Application To Circumstances Of Case] (South Carolina CLE, 1994).) "Refusal by a trial judge to grant a request to tailor the charge to the facts of a specific case has resulted in reversals of guilty verdicts." (Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS Introduction, (B)(2)(b)(2)) [Application To Circumstances Of Case] (South Carolina CLE, 1994); see e.g., State v. Fuller (SC 1989) 377 SE2d 328, 330-31 [reversible error to refuse requests to supplement standard charge on self defense; trial judge should "consider the facts and circumstances of the case at bar in order to fashion an appropriate charge"]; see also State v. Smith (SC 1991) 403 SE2d 162, 164 ["It is not always sufficient for a judge to simply open a charge book and read a generic statement of the law to a jury, no matter how correct the statement may be in the abstract"].)

    (SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL Committee Note [Committee Note] (State Bar of South Dakota, 1996) [It should be remembered that these instructions are patterns, and must be altered as required for any specific case"].)

    "The principle purpose for which pattern jury instructions exist is to help judges communicate more effectively with juries. As the term "pattern" suggests, however, they are not intended to provide instructions applicable without change to every case. Instead, they are meant to provide judges and lawyers with models of instructions designed to aid in juror comprehension. These instructions are not designed to serve as a legal treatise, but rather, to improve the quality of communication with juries." (TENNESSEE PATTERN INSTRUCTIONS - CRIMINAL, T.P.I.-Crim Preface, p. vii [Preface] (West, 5th ed. 1999).)

    "The pattern jury charge is a work of fiction, although based on cases. The reader, therefore, must adapt it to suit his or her particular case and needs. The pattern cannot encompass all statutory alternatives and fact situations." (McClung, & Carpenter, TEXAS CRIMINAL JURY CHARGES [Preface] p. iii (James Publishing, 2000).)

    In Virginia, a proposed jury instruction submitted by a party, which constitutes an accurate statement of the law applicable to the case, must not be rejected solely for its nonconformance with model jury instructions. (VIRGINIA MODEL JURY INSTRUCTIONS - CRIMINAL Chapter 1(1) [Role Of Instructions Generally] (Lexis, 1999).)

    "The user...should consider each instruction a model to be examined carefully before use for the purpose of determining what modifications are necessitated by the facts of the particular case. In addition, the effect of the instructions upon each other must be considered." (WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal [Introduction] p. xi (University of Wisconsin Law School, 1999).)

    Pattern or model jury instructions "represent only the lawyer's starting point for creating instructions that reflect the particular facts of each case." (CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA [Introduction to 1996 Supplement] (Bar Association of the District of Columbia, 4th ed. 1993).)

    Some jurisdictions designate the pattern instructions as "mandatory" which requires the court to give the applicable pattern instruction unless it would be erroneous to do so. (See, e.g., Ill SupCtR 451(a) (Ill RevStat Ch. 110A) ["Whenever Illinois Pattern Instructions in Criminal Cases (IPI-Criminal) contains an instruction applicable in a criminal case, giving due consideration to the facts and the governing law, and the court determines that the jury should be instructed on the subject, the IPI-Criminal instruction shall be used, unless the court determines that it does not accurately state the law"].) However, "[e]ven in the mandatory jurisdictions, the instructions should not be regarded as sacrosanct. A pattern instruction can be attacked either as an incorrect statement of law or as applied in a particular case." (BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) § 131.101[6][c].)

    Moreover, if the pattern instructions do not address an issue, nonpattern supplemental instructions may be appropriate: "Still, IPI Criminal does not provide all the answers... the trial lawyer should consider drafting nonpattern instructions." (ILLINOIS PATTERN JURY INSTRUCTIONS - CRIMINAL, IPI-Criminal 3d [Preface to 4th Ed.] p. xi (West, 4th ed. 2000).)

    The trial judge is vested with broad discretionary powers as to decisions which are best made by an arbitrator who has heard the evidence and observed the witnesses. It is interesting, therefore, that judges are allowed to abdicate their discretionary powers with regard to jury instructions, while in many other areas, from the admission of evidence to sentencing, judicial discretion is jealously coveted. Why then shouldn’t these discretionary powers be exercised on a case-by-case basis with respect to jury instructions which are manifestly controlled by the specific evidence and witnesses?

    In point of fact, the trial court should and does have broad discretion regarding instructions. (See §§ 5 and 6, above.) "The trial judge has the power and duty to control the manner in which the trial is conducted. In so doing, he is acting within a judicial discretion, and his rulings will not be disturbed unless there has been an abuse of such discretion. By virtue of this control, the judge seeks to obtain a trial which is orderly, fair, and impartial, and one at which the truth is discovered, and equal justice administered." [Footnotes omitted.] (Wharton’s Criminal Procedure (West, 13th ed. 1989) § 435.) This inherent power and discretion is applicable to decisions regarding jury instructions. (See e.g., State v. Nuetzel (HI 1980) 606 P2d 920, 931 [instructions should be "flexible with wide discretion vested in the trial judge to clarify the terms of the definition"].) Hence, "[e]ven if [a pattern] instruction accurately states the law and is applicable, an experienced trial judge, ‘in the exercise of informed discretion,’ can conclude that it may confuse the jurors or distract them from the material issues in the case, or prolong the instructions out of proportion to the educational benefit to the jurors, unduly emphasize a potentially prejudicial aspect of the evidence, or simply add nothing to the ability of the jurors to decide the case intelligently, fairly, and impartially. ("Jury Instructions: A Judicial Perspective," by Hon. Dennis C. Kolenda, Circuit Judge, Grand Rapids, Michigan [citing Johnson v. Corbet (MI 1985) 377 NW2d 713, 723-24.) "The conferring of such discretion is an invitation to counsel to massage the [pattern] to fit the particular case." (Kolenda, supra.)

    In sum, even if the pattern instructions have been "approved" by a judicial committee, the legislature, or even a reviewing court, the trial court should retain discretion to decide which instructions are needed in each individual case:

    "No approval of these instructions by the Court could relieve the trial judge of [the] responsibility under the law to charge the jury properly and correctly in each case as it comes before him. This order is not to be construed as any intrusion on that responsibility of the trial judges." (FLORIDA STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES p. x.) [Order of Supreme Court Adopting Pattern Instructions] (Florida Bar, 1981).)

[Coming next: Part II: Strategies For Persuading The Judge To Supplement Or Modify The Pattern Instructions.]

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Jury Instructions: A Judicial Perspective

[Editor's Note: this article was part of a presentation made by the Hon. Dennis C. Kolenda at a conference sponsored by the Criminal Defense Attorneys of Michigan. It appears here with Judge Kolenda"s permission.]

    The court's objective at a trial is the truth, ascertained with rules designed to imbue the outcome with integrity and fairness. The attorneys are out to win. Those are not incompatible objectives. The truth is easier to prove than fiction. But neither objective can be expected if the decision maker does not understand the rules which govern the particular proceeding. When the decision maker is a jury, the instructions given by the court become essential to finding the truth and winning. Somebody will prevail, but the outcome will be whimsical [not accurate, or, if factually accurate, not acceptable as fair and honest] unless the jury genuinely knows and understands the applicable law. That can happen only if the instructions are both legally correct and understood by the jury. Achieving the latter is far more difficult and takes far more effort than the former.

    Every trial judge and every trial lawyer entertains a personal theory on what is the most important portion of any trial. Since several studies indicate that approximately 75% of all jurors claim that their ultimate verdict was the same as their evaluation based on the opening statement, such statements are prime contenders for the title of "most important." But, in any given case, something else can be determinative. Voir dire can be critical. All of us have seen cases won or lost by an especially good or ineffective closing argument. Obviously, the impression jurors get from witnesses and from counsel can be critical, making the actual presentation of proofs critical.

    Another aspect of trial, the instructions, can be especially significant. Unless a jury knows what it is to decide and what it can do with the information given to it, the entire trial process becomes whimsical. Instructions tell jurors what they can do with what they have seen and heard. In addition, the preparation of instructions educates counsel, and one of the most common reasons for reversal is error in instructions. Hence, even if proposed instructions are ignored at the trial level, they can be very useful. They can get a new trial.

    A review of the court rules, cases and literature dealing with instructions, as well as experience, uncovers several rules of thumb. The point of these comments is to give one judge's views on how to compose and pose instructions to accomplish as much as possible, i.e., to intelligently instruct a jury, to educate trial counsel, and to have something left for appeal if trial does not go well. Sample criminal instructions will appear in next month's newsletter.

    Research and draft proposed jury instructions very early in trial preparation. Most attorneys draft them as the last step in trial preparation. Many do nothing more than write out a list of SJI2d or CJI2d numbers. They should do much more, and they should do it very early. Because instructions tell juries what has to be proven and what is appropriate evidence to prove it, researching them early can reveal to trial counsel what has to be proven and by whom, what has to be defended and by whom, and what is an appropriate way to do either or both. Drafting instructions also helps counsel develop a theme for trial. The more closely trial presentation parallels what will be in the instructions, the more comprehensible is that presentation and the more likely it is that the jury will find that presentation to satisfy what the judge's instructions say must be proven. At a minimum, early preparation avoids the discovery just a few days before trial, when it usually is too late to do anything about it, that counsel has missed some key element, that there is something which must be proven at which no discovery has been directed, and/or that there is some defense available to the opponent for which no response can be crafted quickly.

    Review all pattern instructions critically and skeptically. Do not accept them simply because they are the standard. Do your own research and do not hesitate to redraft a form instruction where appropriate. Even if they are not inaccurate, it is useful to redraft standard instructions to fit the particulars of your case. Standard instructions do not accommodate the "personality" of the individual case. The more realistically instructed is a jury, the more likely they are to understand the case and to accurately evaluate the issues. Admittedly, judges will almost surely use the standard instructions, ignoring your substitutes. Nonetheless, draft substitutes. The drafting process will educate you significantly. You may get lucky and have your substitutes used at trial. More likely, and no less significantly, proposing a revised instruction will preserve a point for appeal. People v Joseype Johnson, 407 Mich 196, 216 (1979). Remember, if you have not proposed anything other than the form, you will not be allowed to complain on appeal, even if the form is clearly incorrect. See MCR 2.516(A) and MCR 6.414(F).

    It is common wisdom that verbatim use of this State's standard instructions, the SJI2d and CJI2d, is mandatory. Their use is common practice, but not as is required as thought. In People v Petrella, 424 Mich 221, 277 (1985), the Supreme Court tartly "remind[ed] the bench and bar once again that the Michigan Criminal Jury Instructions do not have the official sanction of this Court. Their use is not required, and trial judges are encouraged to examine them carefully before using them, in order to insure their accuracy and appropriateness to the case at hand." In that case, the Court concluded that CJI 20:2:11(5) was wrong. Other standard criminal instructions have also been found to be wrong. Whenever you draft a better criminal instruction, feel free to present it and feel free to remind the Court of the admonition in Petrella.

    The civil instructions do have the sanction of the Supreme Court, but it is error to conclude that their unvarying use is required. It is not. Pertinent provisions of the Michigan Standard Jury Instructions (SJI2d) "must" be given "if" they are applicable, accurately state the applicable law, and are requested by a party, MCR 2.516(D)(2). In other words, if they do not accurately state the law or if they are inapplicable in the particular case, the SJI need not be given. In addition, the subrule dealing with the SJI2d specifically states that it "does not limit the power of the court to give additional instructions on applicable law not covered by the SJI," MCR 2.516(D)(4). The Court of Appeals has held that "[w]here a standard jury instruction does not adequately cover a particular area, the trial court is obligated to give additional instructions when requested where those instructions properly instruct on the applicable law." Sherrard v Stevens, 176 Mich App 650, 655 (1988).

    Furthermore, the "automatic reversal rule" for any departure or deviation from the SJI2d is no longer the law. "No presumption of error arises as a result of a deviation or addition to the Standard Jury Instructions . . ."  Jones v Porretta, 428 Mich 132, 146 (1987). Trial verdicts should be set aside for instructional error, including departures from the SJI2d, only if "noncompliance with the rule resulted in such unfair prejudice to the complaining party that the failure to vacate the jury verdict would be 'inconsistent with substantial justice.'" Johnson v Corbet, 423 Mich 304, 327 (1985). In short, how juries are to be instructed has been returned to the discretion of the trial courts, giving counsel plenty of opportunity to ask for what they think are appropriate instructions molded to the particular case.

    Even if an SJI2d instruction accurately states the law and is applicable, an experienced trial judge, "in the exercise of informed discretion," can conclude that it may confuse the jurors or distract them from the material issues in the case, or prolong the instructions out of proportion to the educational benefit to the jurors, unduly emphasize a potentially prejudicial aspect of the evidence, or simply add nothing to the ability of the jurors to decide the case intelligently, fairly, and impartially, Johnson v Corbet, supra. The conferring of such discretion is an invitation to counsel to massage the SJI2d to fit the particular case. In Jones v Poretta, supra, at 146-147, fn 3, the Court cautioned against reading that opinion and Johnson v Corbet, supra, as encouraging deviations from, or additions to, the SJI2d, but the rejection of any presumption of error does not discourage such modifications. Therefore, citing to trial courts the aforequoted passages from Johnson v Corbet, supra, and Jones v Poretta, supra, justifies the exercise in altering the standard instructions. See also Moody v Pulte Homes, Inc, 423 Mich 150 (1985).

    Submit preliminary instructions and press the trial court to use them. Instructions at the end of trial are far less useful than instructions before trial. Many jurors have said so. It does not do much good to tell a jury, days after they have heard some information, that that information is not evidence to be considered by them or is evidence to be considered by them, or to tell them what are the issues to be decided. Not having known that when the evidence and argument were presented, the jury did not receive either with an awareness of their significance. If most cases are decided early, quality preliminary instructions are crucial.

    Remind trial judges that they must give properly requested preliminary instructions. One of the civil court rules says that they "shall" be given and that what must be given goes beyond simply the duties of the jury and trial procedure. If properly requested, a trial court must preliminarily instruct a jury as to "the law applicable to the case." MCR 2.516(B)(1). The criminal rule which deals with instructions is silent regarding preliminary instructions, but nothing in it or elsewhere prohibits such instructions, and MCR 6.414(A) gives enough control over trial proceedings to include preliminary instructions. Of particular usefulness is the fact that preliminary instructions do not have to be standard instructions. MCR 2.516(B)(1). In other words, preliminary instructions give counsel their greatest opportunity to mold the instructions to fit the case and to educate the jury.

    Unless impossible because of a last-minute development, submit all proposed instructions in writing, hand-written if need be. The court rules require written proposed instructions. MCR 2.516(A)(1) and MCR 6.414(F). While oral requests can be entertained, and the failure to honor an oral request might result in a reversal. Johnson v Corbet, supra, at 316, and People v VanWyck, 72 Mich App 101, 102-103 (1976), 76 Mich App 17 (1977), 402 Mich 266 (1978), 83 Mich App 581 (1978), no lawyer should count on such luck on appeal. Besides, judges are more comfortable with what they can study. The more comfortable a judge is with a proposed instruction, the more likely it will be used.

    Whenever you propose something other than a form instruction, cite the court to the source, down to the precise page in the opinion upon which you are relying. If possible, append to proposed instructions the case, etc. which is their source and highlight the passages used in the instruction. An instruction grounded in case law is more likely to be given. A cite-less proposed instruction may be sound, but is not likely to be given by a court because it looks unsupported.

    The pertinent rule, the cases and the treatises all say that instructions are to be written in the vernacular, not in the language of appellate decisions. See Aikin v Weakerly, 19 Mich 482, 500-501 (1870); and Austin Mfg Co v Vroman, 35 Mich 310, 330 (1877). See also MCR 2.516(D)(4), which commands that supplemental instructions be "concise, understandable, conversational, and nonargumentative." If the courts would listen to what they write, that would be a good rule to follow. Unfortunately, the best hope of getting different instructions accepted is to model them on published decisions. In that way, you are not asking a court to do anything other than read the law, which is something judges are comfortable doing. Accordingly, draft your instructions around the decisions, although do your best to avoid jargon and legalese. After all, you want the instructions to be used.

    Avoid argumentative instructions. A rule, MCR 2.517(D)(4), as well as common sense, says so. When certain points of law favor your opponent, put them in. That way, your instructions have credibility. The law is seldom all one-sided in any case, so judges virtually presume that one-sided instructions are inaccurate.

    Relate the applicable law to the facts of your case, remembering to do it in a fair manner. There is good case law, which should be cited to the trial court, saying that instructions should be written that way. Hill v Harbor Steel & Supply Co, 374 Mich 194, 208 (1965); and In re Wood's Estate, 374 Mich 218, 292 (1965). Abstract instructions are difficult for lawyers to understand. They probably make no sense whatsoever to juries. Juries are not being asked to engage in jurisprudential discourses. They are being asked to decide a specific case by applying the law to the particulars of that case. Help them by focusing the law on the case.

    When a jury is being given several alternatives, e.g., multiple counts in civil cases, or lesser-included offenses in criminal cases, propose instructions which explicitly compare the alternatives and explain differences. When several complex principles are stated correctly, but without a comparison which spells out the differences between them, the effect of the court's silence on the differences can be to obscure them and to leave the jury at liberty to speculate. Point out to the trial judge that inadequate distinctions can be reversible error. People v Ray, 406 Mich 999 (1979). Always use as your guiding principle that juries are not likely to know what they are not explicitly told. Because jurors are not lawyers, they cannot be expected to deduce anything about the law.

    Keep all instructions as simple as possible and as short as possible. Remember that your perspective is much, much different than the jury's. You are schooled in the law. Jurors know nothing about the law, save what they remember from civics class, what they have heard on television, and what they pick up on the street, all of which are probably wrong. Also, you know the case in and out, or should know it that well. Be careful the instructions do not presume things you know, but the jury does not. But, don't be terse to the point of being uninformative. To comprehend, jurors need some repetition, examples, etc.

    Keep in mind that you have another, much different perspective, one you probably do not appreciate. You are reading written instructions. That gives them extra meaning. The jury is not reading those instructions. They are hearing them read to them. Oral instructions aurally received do not have the impact of, and are not retained as well as, instructions which can be seen on the printed page, studied and restudied. The eye imprints in the mind what it sees. The ear tends not to do the same thing. Instructions which are legally correct because of the various phrases and nuisances in them may be worthy of publication, and say much about your legal abilities, but will be lost on a jury. After all, the point of jury instructions is to educate the jury so that they decide the case in your favor, not merely to show to everyone that you know what the law is. That law has to be meaningfully conveyed to the jurors, not just put on the record in their presence.

    Do not be afraid to tell juries the truth. The appreciate and reward the respect for their intelligence and deal appropriately with the truth. If evidence is admissible for only a limited purpose, tell the jury the legitimate use of the evidence, what it is not to be considered for, and the why of both. If something inappropriate is said or done during a trial, tell the jury to ignore it and why that is the proper thing to do. Contrary to lawyers' popular belief, cautionary instructions work. Juries understand them and work hard to obey such instructions. Juries also recognize efforts to cover-up or misinform them, and their imaginations then run wild. The truth is far easier to deal with than inaccurate speculation.

    The timing of cautionary instructions is very important. Studies show that they are most effective when given in anticipation of, i.e., before, something happening, e.g., evidence being accepted for a limited purpose. Immediately afterwards is the next most effective time for a cautionary instruction. The least effective, although not ineffective, time for such an instruction is in the court's final instructions. Therefore, the need for cautionary instructions must be anticipated, and such instructions, like all instructions, should be drafted and submitted in advance, unless such an early submission will prompt opposing counsel to submit what would otherwise not be offered in the belief that it is not properly submissible for any purpose. Even when the truly unexpected happens, draft in longhand, if need be, an instruction and ask for it to be given right away.

    Weave into your arguments to the jury as much of the actual language of the instructions to be given by the court as you can. However, do not tell the jury that the judge will instruct them thus and so. Just talk to them in the language which you know the judge will use. That way, in the end, when the jury hears the judge instruct them in your words, your credibility is greatly enhanced. Instead of being reminded by the judge that you knew what he or she was going to say, the jury is being told that you know the law, can be trusted on to fairly tell them, and that the judge is in fact agreeing with you, not you with him or her. With any luck, the jurors' natural reaction will be to accept everything else you said. After all, the judge told them that you were correct and can be trusted.

    Be inventive and innovative. Do not feel compelled to do things as they have always been done. Tradition is a brick of the law, but don't be trapped by it. If something different appears useful to your case, try it, or, at least, try to try it. For example, civil jury instructions can be given before final argument, not only afterwards as is common. See MCR 2.516(B)(3). Sometimes, that different order of proceedings makes your final words to the jury all the more persuasive. In criminal cases, the instructions must still come last. MCR 6.414(F). You won't ever get the unusual unless you ask for it. The worst that can happen if you ask for the unusual is being told no. Lawyers ought be able to handle rejection.

    Whenever a trial judge does not give an instruction with which you are satisfied and on which subject you have proposed a concrete alternative, object on the record. Submitting a proposed instruction will not preserve your entitlement to complain on appeal that the judge did not use your proposal, unless, after the jury was instructed, but before it began its deliberations, you placed on the record your objection to the fact that the judge did not use your proposal. See MCR 2.516(C); People v Pollick, 448 Mich 376, 387-388 (1995); and People v Hodges, 179 Mich App 629, 632 (1989). Every trial judge must give you an opportunity to then state objections. If the judge does not, remind him or her. Usually they will have just forgotten. If they refuse to listen to you before the jury begins deliberations, at the first convenient point make it known on the record that you asked to be heard and were not allowed to be heard. Remember, demand to be heard. If the judge says no, you have preserved your point. But, if you did not ask, you have nothing to appeal.

    If at all possible, have a hard copy of the instructions available to give to the jury. Have a complete set of instructions on a word processor. Make that word processor available to the judge. When, after you have argued as much as you can to get your instructions, take whatever the court says it will give and make a hard copy. You understand the instructions, it you do, because you have had the opportunity to study them, to read them and reread them until you understand them. Unless jurors are given a copy of the instructions, all they know is what they remember having heard, which, almost by definition, will not have been all of the instructions. And, even if they heard all the words spoken by the court and remember everything they heard, jurors cannot possibly have understood it all on the first hearing. Only a hard copy of the instructions will give them what they really need: an understandable and usable version; a statement to which they can refer to study what was said and to answer questions as they come up during deliberations.

    The trial court can give the jury a full set of the instructions, either in writing or electronically re-corded. If the court wants to give the jury only a portion of the instructions, counsel for all parties must agree, VanBelkum v Ford, 183 Mich App 272, 274-275 (1989). No one need agree if the court gives an entire set of the instructions, MCR 2.516(B)(5) and 6.414(G).

    If three quarters of all jurors make up their minds after the opening statements, little else we do during the course of a trial is important. However, if the few who do not make up their minds are the dominant members of the jury, good trial techniques and proper instructions may educate them to agree with you, and they may then influence their colleagues. Furthermore, none of us will ever know when we have one of those cases which will not be decided until the end. That case does require educating the jury on what to do with all of the evidence. Do not leave it up to your opponent or to a judge's law clerk. The former is not going to help you if he or she can avoid it, and the latter is usually too inexperienced to understand the reality of trial. Finally, if all else fails, properly drafted jury instructions may enable you to reverse an adverse verdict, or at least, give you the wherewithal to settle a case.

                                                                            By Hon. Dennis C. Kolenda, 
                                                                            Circuit Judge, Grand Rapids, Michigan

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