(September 2001)

by Thomas Lundy

    Resiliency in the face of rejection is a characteristic of successful people in general, and criminal defense attorneys in particular. No where is this quality more important than in the realm of jury instructions. Notwithstanding techniques and strategies which can result in the acceptance of defense requested instructions (see "Part II: Strategies For Persuading The Trial Judge To Modify Or Supplement The Pattern Instructions"), it is a given that the judge will say "no" more often than "yes." But, as with any other aspect of criminal defense, the fact that the judge says "no" shouldn’t end the fight.

    This article attempts to present some ideas for responding to the judge’s denial of a jury instruction request by "finding another way" to gain an advantage or benefit from the rejected instruction.

         1.    Does The Judge Have A Duty To Correct Or Modify The Instructions?

    The first response to consider when an instruction is rejected is whether to ask the court how the instruction can be corrected or modified to make it acceptable.

    It has been widely recognized that the trial court has a duty to correct defective instruction requests arising from the trial court's ultimate responsibilities to assure that the jury is correctly instructed. (See U.S. v. Newcomb (6th Cir. 1993) 6 F3d 1129, 1132 [trial court erred in failing to correct defendant’s defective instruction on necessity]; People v. Castillo (CA 1997) 16 C4th 1009, 1016 [68 CR2d 648] [even when a trial court instructs on a matter on which it has no sua sponte duty to instruct, it must do so correctly]; People v. Fudge (CA 1994) 7 C4th 1075, 1110 [31 CR2d 321] [judge must tailor instruction to conform with law rather than deny outright]; State v. Sawyer (HI 1998) 966 P2d 637, 642 [trial court has the duty either to correct any defects or to fashion its own instructions]; Bailey v. Commonwealth (VA 2000) 529 SE2d 570, 584-85 [when a principle of law is materially vital to a defendant, it is reversible error for the trial court to fail to correct a defective instruction or verdict form when the error is patent or the subject of a proper objection even if the defendant fails to proffer alternative instructions or verdict forms]; State v. Lambert (WV 1984) 312 SE2d 311 [ultimate responsibility to ensure that jury is correctly instructed in criminal cases rests with the trial court].)

    This duty may require the trial court to correct or tailor an instruction to the particular facts of the case even though the instruction submitted by the defense was incorrect. (See People v. Stewart (CA 1976) 16 C3d 133, 140 [127 CR 117]; see also Kass v. Great Coastal Express, Inc. (NJ 1996) 676 A2d 1099, 1107 [because request as formulated by plaintiff omitted the standard of proof, the judge has the responsibility to determine the applicable standard of proof]; People v. Parsons (CO 1980) 610 P2d 93, 94; State v. Bunce (NM 1993) 861 P2d 965 [inadequate defense request on mistake of fact did not relieve trial court of obligation to correctly instruct on this defense theory]; Williams v. State (TX 1982) 630 SW2d 640, 643 [although a specially requested charge may be defective, it still may serve to call the court's attention to the need to charge on a defensive issue]; Morse v. Commonwealth (VA 1994) 440 SE2d 145 ["Trial court should have prepared its own instruction or required counsel to submit a new instruction that correctly defined the defense"]; State v. Dellinger (VA 1987) 358 SE2d 826 [failure of defense counsel to offer a sexual abuse instruction was such plain error the trial court should have intervened to avoid prejudice to the defendant].)

    Hence, in many jurisdictions there may be a basis for asking the judge to explain how a rejected instruction can be corrected to make it acceptable.

    A variation of the correction/modification response is to consider whether the point can be made using other instructions which may be more acceptable to the judge. For example, if counsel is not satisfied with the standard definition of reasonable doubt, and the judge denies counsel’s requested definition, a burden-comparison instruction could be requested. This approach instructs the jurors using the standard definition of clear and convincing evidence and then informs them that proof beyond a reasonable doubt requires more. In other words, such an instruction would effectively inform the jury that a firm belief in guilt is not enough to convict. (See NCJIC 270.6.1 [Comparison Of Reasonable Doubt With Clear And Convincing Evidence Standard].)

         3.    Does Rejection Of The Defense Request Call For Rejection Of Analogous Prosecution Instructions?

    Another response to consider when a proposed defense instruction is rejected is whether other analogous prosecution instructions have been accepted. For example, defense instructions are often rejected because they are allegedly a comment on a specific witness or type of evidence. Yet most sets of standard pattern instructions contain numerous prosecution oriented instructions which also comment on the evidence or specific witnesses. (E.g., consciousness of guilt, inference instructions such as recent possession of stolen property, instructions which highlight the defendant’s confession or admission, etc.) Allowing such instructions while denying analogous defense instructions results in an instruction imbalance which unfairly and unconstitutionally favors the prosecution. (See e.g., Wardius v. Oregon (1973) 412 US 470 [93 SCt 2208; 37 LEd2d 82].)

    For example, a typical standard pattern instruction which is especially prejudicial to the defendant in a criminal case specifically informs the jury to consider the interest of a witness in the outcome of the trial in evaluating credibility. In a criminal case, this instruction effectively singles out the defendant’s testimony as less credible that the testimony of other witnesses.

    Hence, if defense counsel’s requests for instructions on specific defense evidence or witnesses is denied, then the other standard instructions which comment on the evidence, such as the "outcome-of-the-trial" instruction, should also be excluded.

    B.    Responding To Rejection Of Proposed Instruction With Argument To The Jury

    Most trial practitioners are familiar with having to argue legal points upon which the trial judge has refused specific instruction. Typically this approach is considered to be less effective than having the court to instruct on the principle. However, there are some potentially powerful techniques that can be employed to increase the stature of these legal arguments.

    For example, counsel should have the right to an instruction informing the jury that legal principles included in argument are to followed so long as they are not inconsistent with the court’s instructions. Indeed, the right to such an instruction is guaranteed by the federal constitution. (See Herring v. New York (1975) 422 US 853, 858 [95 SCt 2550; 45 LEd2d 593] ["‘the constitutional right of a defendant to be heard through counsel necessarily includes his right to have counsel make a proper argument on the ... applicable law in his favor.’ [Citation.]"]; see also Penry v. Johnson (6/4/01, No. 00-6677) ____ US ____ [121 SCt 1910; ____ LEd2d ____] [recognizing the legitimate role counsel’s argument plays in juror comprehension of the instructions].) In fact, many jurisdictions incorporate this concept into its standard pattern instructions. This is done by permitting the jury to consider as a governing legal principle any specific legal principle asserted by counsel during argument which is not inconsistent with the court’s instructions. For example:

    "You must accept and follow the law as I state it to you, regardless of whether you agree with the law. If anything concerning the law said by the attorneys in their arguments or at any other time during the trial conflicts with my instructions on the law, you must follow my instructions." (CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 1.00, [Respective Duties Of Judy And Jury] ¶¶ 4 (West, 6th Ed. 1996).)

    (6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.02 [Juror’s Duties] ¶¶ 3 (1991).)

    "If anyone states a rule of law different from any I tell you, it is my instruction that you must follow." (IDAHO CRIMINAL JURY INSTRUCTIONS, ICJI 201 [Role Of Judge And Jury] (Idaho Law Foundation, Inc., 1995).)

    "If, however, you think there is any difference between the law stated by counsel and the law stated in these instructions, you must follow the instructions I am giving you." (Alexander, MAINE JURY INSTRUCTIONS MANUAL 6-5 [Instruction 16-Mistakes Of Law In Argument] (Lexis, 1999).)

    "If an attorney’s argument contains any statement of the law, which differs from the law which I give you, you should disregard the statement." (MINNESOTA JURY INSTRUCTION GUIDES - CRIMINAL, CRIMJIG 3.11, [Statements Of Judge And Attorneys] ¶¶ 2, sent. 2 (West, 4th ed. 1999).)

    (Dinse, Berger, & Lane, VERMONT JURY INSTRUCTIONS - CIVIL & CRIMINAL 5.01, [Instruction: Opening Remarks-Responsibilities Of Court And Jury] ¶¶ 6. (Lexis, 1993).)

    Based on such an instruction counsel should be able to admonish the jury that specific legal points made during argument, to which the prosecutor does not object, should be accorded the same stature as the instructions given by the court. To bolster this view the actual language of the specific legal principle can be included in a "blow-up" or graphic for use during the argument.

    Of course, in jurisdictions without the necessary language in the standard pattern instructions, appropriate language will have to be requested.

    Additionally, for greater emphasis, more express language can be requested. For example:

    If counsel argues that a legal rule is included in one of the instructions, you must accept and abide by that rule as a correct statement of the law unless it conflicts with the instructions or I sustain an objection to counsel's argument on that point. Thus even if there is no specific instruction on the rule argued by counsel you must treat it as the equivalent of an instruction to be considered, if applicable, along with all the other instructions in deciding the case.]

[Source: NCJIC.]

    Nor should the prosecutor be allowed to argue a contrary interpretation of the legal principle to the jury. While differing interpretations of the facts are appropriate for the jury to resolve, it is not appropriate for the jury to resolve different interpretations of the law. (See e.g., People v. Thomas (CA 1945) 25 C2d 880, 897 [156 P2d 7]; U.S. v. Delano (W.D.N.Y. 1993) 825 FSupp 534.) Hence, the prosecutor who has a quarrel with defense counsel’s argument of the specific legal principles should object at the time defense counsel’s argument is made or be deemed to have waived the opportunity to advance a different interpretation.

    In sum, fundamental constitutional principles require that the defendant be allowed to assure that the jury fully understands any correct principle of law which may have a bearing on its verdict. (See Herring, supra; Penry, supra.) If counsel is precluded from conveying this principle by specific instruction, then the jury should be informed to accept and follow counsel's recitation of the principle during argument.

CAVEAT: This approach will also apply to the prosecution’s argument. This strategy should, therefore, be carefully evaluated because it may allow the jury to consider legal argument from either side in the same fashion. Hence, caution should be used to object to or preclude argument on any misstatements of the law by the District Attorney and/or cocounsel. (See NCJIC 272.3.5 [Admonition Regarding Improper Summation/Closing Argument On Term Contained In Instructions But Not Defined].)

    Trial judges often deny proposed defense instructions because the point is "covered by" or "included in" other instructions or is within the general understanding of the jury. And, their appellate brethren often back them on this point. (See e.g., People v. Musselwhite (CA 1998) 17 C4th 1216, 1271 [74 CR2d 212] [jury will glean specific mitigating factors from the general catch-all mitigating factor instruction in death penalty cases].)

    Similarly, many jurisdictions hold that the trial judge has no obligation to clarify "commonly understood" terms. (See generally Wharton’’s Criminal Procedure (West, 13th ed. 1989) §§ 463.)

    However, these justifications for rejecting a proposed instruction are founded on assumptions which may be subject to challenge.

         1.    Use Of Empirical Studies To Illustrate Jurors’ Difficulty In Understanding Instructions

    Empirical studies suggest that jurors have much more difficulty understanding instructions than the courts assume they do. For example, in one study of ten separate California juries, the following findings were made: (1) Consideration of mitigating evidence -- "[F]ully 8 out of the 10 California juries included persons who dismissed mitigating evidence because it did not directly lessen the defendant's responsibility for the crime itself." (2) Comprehension of Legal Crimes and Legal Terms -- "Of the 30 California jurors interviewed, only 13 showed reasonably accurate comprehension of the concepts of aggravating and mitigating." (See Haney, Sontag and Costanzo, "Deciding to Take a Life: Capital Juries, Sentencing Instructions, and the Jurisprudence of Death" 50 Journal of Social Sciences No. 2 (Summer 1994) [For a copy of this study contact: Subscription Dept., Plenum Publishing Corporation, 233 Spring Street, New York, NY 10013. Orders can also be faxed to the Subscription Dept. at 212/807-1047. Single issues are $49.50 each.]

    Additionally, Free v. Peters (7th Cir. 1993) 12 F3d 700, 704-06, provides a basis for challenging confusing jury instructions by the use of a jury study conducted by an appropriate expert. In Free, the trial court relied upon such a study to conclude that the instructions given were overly confusing and invalid. Although the Court of Appeals reversed the lower court, it did not rule out the use of an appropriate jury study for jury instruction evaluation. Rather, the Court of Appeal relied on two perceived defects in the study methodology. ( Free,12 F3d at 705.) Presumably, a study which eliminates those defects would be a valid basis upon which to challenge jury instructions as overly confusing. (But see also Gacy v. Welborn (7th Cir. 1993) 994 F2d 305, 309.)

        2.    Challenging The Assumption That The Jurors Are Walking Dictionaries

    The assumptions that all jurors necessarily understand the correct meaning of every word in the instructions which is not a technical or legal term is patently false, as demonstrated by the countless cases in which jurys have unilaterally referred to dictionaries to seek definitions of supposedly common terms. (See e.g., People v. Karis (CA 1988) 46 C3d 612, 642 [250 CR 659]; State v. Williamson (HI 1991) 807 P2d 593, 596; U.S. v. Gillespie (6th Cir. 1995) 61 F3d 457, 459; Maslinski v. Brunswick Hosp. Center Inc. (NY 1986) 118 AD2d 834 [500 NYS2d 318]; State v. Richards (VA 1995) 466 SE2d 395, 400; but see People v. Landwer (IL 1996) 664 NE2d 677, 682 [error to refuse jury's request for dictionary].)

    Hence, given the fact that, on the one hand, jurys are forbidden from referring to dictionaries and, on the other hand, it is falsely assumed that jurys do understand the correct meaning, there is no logical support for denial of a request to give the jury the dictionary definition of important terms used in the instructions.

         3.    Counsel Should Be Permitted To Include The Dictionary Definition In Argument

    As already discussed in Section B above, the defendant has a federal constitutional right to argue specific points of law to the jury that are legally correct and consistent with the more general instructions given by the judge.

    Certainly, the correct dictionary definition of a term used in the instructions should fall within this right to argue specific points of law. Moreover, the propriety of this argument is further supported by the fact that the jurors are typically not permitted to consult the dictionary themselves to obtain the correct definition.

D.    Strengthening The Appellate Record

    The focus of this article has been trial strategy, not appeal. Appellate concerns will be addressed in a future article. However, it bears noting at this juncture that when a defendant’s instructional argument is rejected trial counsel can greatly help the appellate attorney by assuring that potential sources of prejudice are on the record. For example, when the judge instructs, over objection, on a prosecution theory not included in the charging document, a specification of how the new theory unfairly surprised the defense and a request for continuance could make the appellate issue much stronger. (Compare Sheppard v. Rees (9th Cir. 1989) 909 F2d 1234, 1236-37 [habeas petition granted where defendant unfairly surprised] with People v. Memro (CA 1995) 11 C4th 786, 869 [47 CR2d 219 [failure to ask to reopen waived error in instructing on uncharged felony murder theory].)

    This is the last in our series of three articles on "Going Beyond The Pattern Instructions" at trial. It is hoped that they have been of some help in providing ideas and techniques for making jury instruction advocacy part of the adversarial process at trial.

    In the future we hope to include additional articles on "Going Beyond The Pattern Instructions" on appeal.

RETURN TO TABLE OF CONTENTS

ADDITIONAL MATERIALS

NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM

VOLUME 13 - CHAPTER 270

RATIONALE: Because the reasonable doubt standard may be difficult to define, and in some courts no definition is given at all, the jury may be aided by comparing proof beyond a reasonable doubt with the lesser standard of clear and convincing evidence.

POINTS AND AUTHORITIES: A comparison of burdens is a common and accepted method of distinguishing between the preponderance and clear and convincing standards. (See e.g., UNIFORM CRIMINAL JURY INSTRUCTIONS (OREGON), UCrJI 1001 [General Instructions-Introduction] ¶ 4. (Oregon State Bar, 1998 )]; SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 1-5-1 [Burden Of Proof] (State Bar of South Dakota, 2000); MISSISSIPPI MODEL JURY INSTRUCTIONS - CRIMINAL, MJI-Criminal C:1:8 [Burden Of Proof; Evidentiary Matters -- Reasonable Doubt] (West, 2000).) There is no reason why it shouldn't also be used in distinguishing proof beyond a reasonable doubt from other lesser standards. Such a comparison provides added perspective and protects against the jurors use of the lesser standard. (See also Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS 21 [Definition Of Reasonable Doubt] (1988) [comparing burden in civil trial] Available to subscribers.  To become a subscriber, click here.; Hrones & Homans, MASSACHUSETTS JURY INSTRUCTIONS - CRIMINAL 1-2 [Reasonable Doubt] (Lexis, 2nd ed. 1999) ["It is not sufficient for the prosecution to establish a probability, even a strong probability, that the charge against the defendant is more likely to be true than not. That is not enough"];  see also NCJIC 270.6.2 [Comparison Of Reasonable Doubt With Preponderance Standard] Available to subscribers.  To become a subscriber, click here.)

    Moreover, without a comparison instruction there is a danger that the jury will convict under the lesser standard even if proof beyond a reasonable doubt is defined. For example, in South Dakota clear and convincing evidence is defined as follows: "Clear and convincing evidence is produced when the witnesses are found to be credible and their testimony is so clear, direct and weighty and convincing as to enable the jury to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue. It is not required that the proof be voluminous or undisputed before it may be characterized as 'clear and convincing.' But the facts must be strong and such that produce in the minds of the jurors a firm belief or conviction. "It takes less proof to establish a position by clear and convincing evidence than it takes to establish the same position beyond a reasonable doubt." (SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 2-5-4 [Insanity-Burden Of Proof-Clear And Convincing Evidence] (State Bar of South Dakota, 2000); see also State v. Rough Surface (SD 1989) 440 NW2d 746, 757-58.) On the other hand, in South Dakota juries are informed that [proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt...if, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find the defendant guilty." (SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 1-6-1 [Reasonable Doubt] ¶ 2 (State Bar of South Dakota, 2000).)

    Hence, the lesser, clear and convincing evidence standard requires "firm belief or conviction" while the greater, beyond a reasonable doubt standard, requires "proof that leaves you firmly convinced...." Regardless of whether a principled distinction may be made between these two standards, at a minimum, the defendant should have the option of instructing the jury on the clear and convincing evidence standard and further informing them that it takes "more proof" to meet the proof beyond a reasonable doubt standard.

    Certainly, since the proof beyond a reasonable doubt standard is for the benefit of the defendant, the defendant should have the right to waive definition of that standard and utilize definition on the lesser standard. Additionally, even if such instruction is not allowed, counsel should be able to read the clear and convincing evidence standard to the jury for purposes of establishing that proof beyond a reasonable doubt requires more.

    It is a "much higher standard" than preponderance of the evidence. (People v. Allen (CA 1993) 20 CA4th 846, 857 [25 CR2d 26]; see also Brown v. Bowen (7th Cir. 1988) 847 F2d 342, 345-46 ["all burdens of persuasion deal with probabilities. The preponderance standard is a more-likely-than-not rule, under which the trier of fact rules for the plaintiff if it thinks the chance greater than 0.5 that the plaintiff is in the right. The reasonable doubt standard is much higher, perhaps 0.9 or better"]; Binion v. Chater (7th Cir. 1997) 108 F3d 780, 783 [same]; Lane v. Sullivan (8th Cir. 1990) 900 F2d 1247, 1252 ["much higher"]; U.S. v. Clawson (D. Oregon 1994) 842 FSupp 428, 430; U.S. v. Washington (N.D. Ill. 1993 840 FSupp 562, 573 ["substantially more demanding legal standard"].)

USE NOTE: One definition of clear and convincing evidence is that it "requires that the existence of a disputed fact be highly probable." (American Cyanamid Co. v. Electrical Indus., Inc. (5th Cir. 1980) 630 F2d 1123, 1127; see also 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 6.4, comment [Insanity] (2000).

STRATEGY NOTE: "James H. McComas [of Friedman, Rubin & White, Anchorage, Alaska] says that voir dire of prospective jurors, if 'properly done,' offers 'the best opportunity in the entire trial to educate the jury on the meaning of reasonable doubt.' He suggests questioning them in the Socratic style, 'which enables jurors to participate actively in the definition and consideration of the reasonable doubt/beyond a reasonable doubt standard.' But his starting point is the terminology of the anticipate reasonable doubt instruction, including the hesitation standard, and his goal is to help the jurors 'really understand how high the reasonable doubt standard is.' He explores with the jurors the meaning of key phrases, including 'honest uncertainty,' 'not convinced to a moral certainty,' and 'pause or hesitate to act.' And he helps them identify what proof beyond a reasonable doubt is not: 'maybe,' 'probably,' 'more likely than not,' 'a preponderance' (contrasting it with the civil standard, which can dispose of millions of dollars), 'very likely,' or 'clear and convincing' (contrasting it with the standard for involuntary commitment of the mentally ill)." (BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) Vol. 13, No. 1, 1/13/99, p. 3.)

See Capital Punishment Handbook [3.5.2 a. Reasonable Doubt Instructions: General Principles And Authorities]. Available to subscribers.  To become a subscriber, click here.

See also generally, NCJIC 305.2.5 [Burden Of Proof/Presumptions]. Available to subscribers.  To become a subscriber, click here.

See 1st Circuit Pattern Jury Instructions - Criminal 3.02. Available to subscribers.  To become a subscriber, click here.

See also 5th Circuit Pattern Jury Instructions - Criminal 1.05. Available to subscribers.  To become a subscriber, click here.

    Proof beyond a reasonable doubt is the highest level of certainty recognized in the law. Clear and convincing evidence requires that the existence of the disputed fact be highly probably. Again, the proof beyond a reasonable doubt standard requires a significantly greater degree of certainty than that required to meet the clear and convincing evidence standard.

[Source: NCJIC.]

    Proof beyond a reasonable doubt is the highest level of certainty recognized in the law. It requires a significantly greater degree of certainty than the next lower standard of "clear and convincing evidence." The clear and convincing standard requires evidence of such convincing force that it demonstrates, in contrast to the opposing evidence, a high probability of the truth of the facts for which it is offered as proof. To be clear and convincing, the evidence must be so clear as to leave no substantial doubt and be sufficiently strong to command the unhesitating assent of every reasonable mind. Again, the proof beyond a reasonable doubt standard requires a significantly greater degree of certainty than that required to meet the clear and convincing evidence standard.

[Source: NCJIC.]

[Source: UNIFORM CRIMINAL JURY INSTRUCTIONS (OREGON), UCrJI 1001, [General Instructions-Introduction] ¶ 4. (Oregon State Bar, 1998).]

    The State has the burden of proving every element of the offense charged beyond a reasonable doubt. The burden of proof never shifts* to the defendant, but rests upon the State throughout the trial. A mere preponderance of the evidence is not enough.

* But see NCJIC 270.2.10 [Avoiding Language That Burden Never "Shifts" To Defendant]. Available to subscribers.  To become a subscriber, click here.

[Source: SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 1-5-1 [Burden Of Proof] (State Bar of South Dakota, 2000).]

    It is not sufficient that [the defendant’s] guilt is probable only, or even more probable than his innocence. Nor can the defendant be convicted upon mere suspicion. No amount of suspicion however strong, will warrant his conviction.

[Source: Whaley v. Commonwealth (VA 1973) 200 SE2d 556, 558.]

    There is always a reasonable doubt of the defendant’s guilt when the evidence simply makes it probable that the defendant is guilty. Mere probability of guilt will never warrant you to convict the defendant.

[Source: MISSISSIPPI MODEL JURY INSTRUCTIONS - CRIMINAL, MJI-Criminal C:1:8 [Burden of Proof; Evidentiary Matters--Reasonable Doubt] (West, 2000).]

Return to Part III: Jury Instruction Strategies When The Judge Says "No"

NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM

VOLUME 13 - CHAPTER 272

RATIONALE: When common terms are not defined, the jury may accept erroneous or misleading definitions offered by counsel. Hence, the jury should be informed that it may request clarification of undefined terms which it does not understand.

POINTS AND AUTHORITIES: Most jurisdictions impose no obligation upon the court to define "terms which have an ordinary or common meaning." (See NEW MEXICO UNIFORM JURY INSTRUCTIONS - CRIMINAL, UJI Criminal 14-108, committee commentary [Explanation; Closing Argument; Improper Argument On Meaning Of Words Contained In Instructions But Not Defined] (Lexis, 1998); see also NCJIC 3.2.6 [Duty To Define Terms with Specialized/Technical Meaning].

    See also NCJIC 272.3.3 [Jury May Consider Summation/Closing Argument Of Counsel As To Meaning Of Instructions If Not Inconsistent With The Judge’s Instructions]. Available to subscribers.  To become a subscriber, click here.

CAVEAT: All of this highlights the importance of preparing accurate definitional statements for use as jury instruction requests or argument and closely scrutinizing opposing [and codefendants] counsel’s argument for possible misstatements in defining the terms in the instructions. (See generally 23 Corpus Juris Secundum, Criminal Law §1116.) The assumption that the jury will properly understand the meaning of common terms may not always be valid.

See Manual On Recurring Problems In Criminal Trials [1a. Right To Final Argument: General Principles]. Available to subscribers.  To become a subscriber, click here.

See also Manual On Recurring Problems In Criminal Trials [2a. Control By Court]. Available to subscribers.  To become a subscriber, click here.

See also Manual On Recurring Problems In Criminal Trials [3a. Time Limitations: General Principles]. Available to subscribers.  To become a subscriber, click here.

See also A Manual On Jury Trial Procedures [3.17 A. Closing Argument: In General]. Available to subscribers.  To become a subscriber, click here.

SAMPLE INSTRUCTION # 1:

    The [word] [language] ____ is not defined in the instruction because a definition was not considered to be necessary.

    During your deliberation, if you have a question as to the meaning of the [word] [language], you may make a written request for a definition and I will give you one.

[Source: NEW MEXICO UNIFORM JURY INSTRUCTIONS - CRIMINAL, UJI Criminal 14-108 [Explanation; Closing Argument; Improper Argument On Meaning Of Words Contained In Instructions But Not Defined] (Lexis, 1998).]

SAMPLE INSTRUCTION # 2:

    The following [term] [phrase] has not been defined because definition was not considered necessary.  

    However, if any juror has a question as to the meaning of the [term] [phrase] that juror may make a written request for definition. 

[See NCJIC16.2.4.3 [Any Juror May Communicate With The Court At Any Time]. Available to subscribers.  To become a subscriber, click here.; cf. NEW MEXICO UNIFORM JURY INSTRUCTIONS - CRIMINAL, UJI Criminal 14-108 [Explanation; Closing Argument; Improper Argument On Meaning Of Words Contained In Instructions But Not Defined] (Lexis, 1998).]

Return to Part III: Jury Instruction Strategies When The Judge Says "No"

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