Argument vs. Instruction: Keeping Each In Its Place

(May 2002)

by Thomas Lundy

    Instruction of the jury by the court and argument to the jury by counsel are two distinct phases of trial, each with its own purpose and impact. On a conceptual level, these functions are not interchangeable--each must fulfill its own discrete purpose. "A jury's response to instructions from the judge is, and should be, quite different from its response to arguments from counsel. Counsel's argument is neither law nor evidence, and the jury is so instructed." (United States v. Bernard (9th Cir. 1980) 625 F2d 854, 857.) "Any suggestion that counsel's argument can perfect an otherwise faulty jury charge is totally erroneous. Arguments of counsel can never substitute for the instructions given by the Court." (Goodwin v. Balkcom (11th Cir. 1982) 684 F2d 794, 803, fn 8; see also U.S. v. Ruiz (11th Cir. 1995) 59 F3d 1151, 1154 [court rejected as "disingenuous" prosecution’s argument that defense theory was adequately presented by closing argument of counsel; jury deliberations are guided by the court’s instructions not counsel’s arguments].)

    However, as a practical matter the courts tend to blur this distinction, often to the detriment of criminal defendants. For example, it is common at the trial for the judge to refuse a defendant’s request for a instruction on a specific defense theory or legal principle on the basis that the instruction is "a matter for argument." And, at the appellate level there is a trend toward relying on the arguments of counsel in assessing instructional error.

    The following article provides some suggestions for limiting the adverse impact of these trends.

    The point may seem obvious, but it may be useful to first focus on the fundamental precept that it is the judge’s obligation to instruct the jury on the relevant legal criteria.

    "Discharge of the jury's responsibility for drawing appropriate conclusions from the testimony depend[s] on discharge of the judge's responsibility to give the jury the required guidance by a lucid statement of the relevant legal criteria." (Bollenbach v. U.S. (1946) 326 US 607, 612 [66 SCt 402; 90 LEd 350].) "Jurors are not experts in legal principles; to function effectively, and justly, they must be accurately instructed in the law." (Carter v. Kentucky (1981) 450 US 288, 302 [101 SCt 1112; 67 LEd2d 241].) "It is quite simply a hallmark of our legal system that juries be carefully and adequately guided in their deliberations." (Gregg v. Georgia (1976) 428 US 153, 193 [96 SCt 2909; 49 LEd2d 859] [opn. of Stewart, Powell, and Stevens, JJ.].)

    Of course, persuading a judge of his or her duty to instruct conceptually is much easier than getting the judge’s agreement to give a particular instruction. However, many instructional requests, if closely examined, can be tied into important legal, if not constitutional, rules which are relevant to the jury’s consideration and resolution of the case. For example, two important legal criteria which can trigger a duty to instruct are:

1) Elements of the charge; and

2) Defense theories.

    Instructions which accurately define, explain or clarify an element or elements of the offense are appropriate matters for instruction by the court rather then argument of counsel. (See generally Neder v. U.S. (1999) 527 US 1 [119 SCt 1827; 144 LEd 2d 35]; U.S. v. Gaudin (1995) 515 US 506, 515 [115 SCt 2310; 132 LEd2d 444]; Eaglin v. Welborn (7th Cir. 1995) 57 F3d 496, 500.)

    Similarly, the defense has the right to instruction on the defense theory or theories of the case. (See generally Mathews v. United States (1988) 485 US 58, 63 [108 SCt 883; 99 LEd2d 54]; Conde v. Henry (9th Cir. 1999) 198 F3d 734, 739; U.S. v. Oreto (1st Cir. 1994) 37 F3d 739, 748.) Such defense theories can range from affirmative defenses such as self defense to evidentiary theories based on logic or reasonable inference such as good character.

    The judge’s assertion that a requested instruction is "a matter for argument" can sometimes be refuted by reference to an analogous instruction in the standard pattern instructions. For example, a third party guilt defense theory instruction is operatively identical to most instructions on alibi since each defense seeks to raise a reasonable doubt that the defendant committed the charged offense. (See generally People v. Hall (86) 41 C3d 826, 833 [226 CR 112].) Hence, in jurisdictions which have standard alibi instructions it would be inconsistent to conclude that third party guilt is a "matter for argument" while alibi is not. In fact, it might be possible to make an equal protection challenge to such a result.

    Another use of analogy is to identify circumstances where the prosecution is given an instruction but the defense is not. For example, if there are standard instructions on permissive presumptions which favor the prosecution (e.g., consciousness of guilt, possession of recently stolen property) then it would violate the requirement of balance and potentially implicate due process principles (see generally Wardius v. Oregon (73) 412 US 470 [37 LEd2d 82; 93 SCt 2208]) to relegate to argument analogous defense inferences such as consciousness of innocence. (See e.g.,People v. Williams (CA 1997) 55 CA4th 648, 652 [64 CR2d 203]; see also FORECITE National™ 35.1 [Instruction On Consciousness Of Innocence; Absence Of Flight; Voluntary Surrender, Consent To Search, Etc.] Available to subscribers.  To become a subscriber, click here.)

    If the defense is left with having to present a legal principle or defense theory by argument there may be ways to enhance the weight of the argument. (See "Going Beyond The Standard Pattern Instructions Part III: Jury Instruction Strategies When The Judge Says "No," (B) Responding To Rejection Of Proposed Instruction With Argument To The Jury.")

    Some courts have relied on argument to find the instructional ambiguities were not prejudicial. (See e.g., People v. Brown (CA 1988) 45 C3d 1247, 1256 [248 CR 817]; see also Buchanan v. Angelone (1998) 522 US 269, 277 [118 SCt 757; 139 LEd2d 702] [relying on argument of counsel to "buttress" the conclusion that the jury was not precluded from considering mitigating evidence].)

    However, the bottom line should be that argument cannot substitute for instruction. (See Carter v. Kentucky, supra; People v. Mathews (CA 1994) 25 CA4th 89, 99 [30 CR2d 330] ["[I]nstruction by the trial court would weigh more than a thousand words from the most eloquent defense counsel"]; Ovalle v. State (TX 2000) 13 SW3d 774 [argument of prosecutor did not cure error in failing to inform capital sentencing jury to consider sentencing phase evidence].)

    The United States Supreme Court has considered the arguments of counsel in trying to determine how the jury interpreted conflicting or confusing instructions. (See e.g., Penry v. Johnson (2001) 532 US 782 [121 SCt 1910, 1923; 150 LEd2d 9].) However, the high court has never said that the arguments of counsel are an adequate substitute for statements of the law by the court. (See Penry, 121 SCt at 1923 [noting that Boyde v. California (1990) 494 US 370, 384 [110 SCt 1190; 108 LEd2d 316] is to the contrary].)

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