Keeping Your Defense On Track Even When The Judge Denies Your Instruction Request

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 JuryInstruction.com Articles "Part II: Strategies For Persuading The Trial Judge To Modify Or Supplement The Pattern Instructions"), it is a fact of life that the judge will say "no" more often than "yes." For example, in California the appellate courts have virtually rubber-stamped the Judicial Council’s standard instructions against various attacks since adoption of the instructions in 2006. But, as with any other aspect of criminal defense, the fact that the judge says "no" shouldn’t end the fight.

This article presents some ideas for responding to the judge’s denial of a jury instruction request by finding other ways to get your message through to the jurors.

    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 F.3d 1129, 1132 [trial court erred in failing to correct defendant’s defective instruction on necessity]; People v. Castillo (CA 1997) 16 Cal.4th 1009, 1016 [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 Cal.4th 1075, 1110 [judge must tailor instruction to conform with law rather than deny outright]; State v. Sawyer (HI 1998) 966 P.2d 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 S.E.2d 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 Cal.3d 133, 140; see also Kass v. Great Coastal Express, Inc. (NJ 1996) 676 A.2d 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 P.2d 93, 94; State v. Bunce (NM 1993) 861 P.2d 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 S.W.2d 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 S.E.2d 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 S.E.2d 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, there may be a basis for asking the judge to explain how a rejected instruction can be corrected to make it acceptable.

    2. Are There Other More Acceptable Instructions That Can Be Given?

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 JuryInstruction.com Articles, "Comparison Of Standards: A Strategy For Explaining Proof Beyond A Reasonable Doubt.")

    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 U.S. 470.)

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.

Most trial practitioners are familiar with having to argue legal points upon which the trial judge – usually reciting the mantra "it’s a matter for argument"– 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. [Footnote 1]

    1. Request An Instruction That Jurors Should Follow Counsels’ Instructional Arguments That Do Not Conflict With The Judge’s Instructions

One response to the judge’s denial of an instruction because "it is a matter for argument" might be to request 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. The request for such an instruction can be grounded on the federal constitution. (See Herring v. New York (1975) 422 U.S. 853, 858 ["‘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 (2001) 532 U.S. 782, 808 [recognizing the legitimate role counsel’s argument plays in juror comprehension of the instructions].) [Footnote 2] The requested instruction could be something like the following:

I have ruled that certain specific explanations of the law governing this case may be stated to you by argument of counsel rather than by a formal instruction from me. Therefore, you are to abide by any statement of law made by counsel unless such statement conflicts with my instructions. Before deciding to reject a statement of counsel regarding the law as conflicting with my instructions you must first send out a note requesting clarification.

If counsel argues that a legal rule is included in one of the instructions, you must accept and abide by counsel’s argument as a correct statement of the law unless 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 and followed, if applicable, along with all the other instructions.

Alternative c:

If counsel argues that a legal rule is included in one of the instructions, you must accept and abide by counsel’s argument as a correct statement of the law unless it conflicts with my instructions. 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 and followed, if applicable, along with all the other instructions.

    2. Use The Existing Pattern Instruction On Arguments Of Counsel

Even if the judge denies your request for a specific instruction informing the jurors that they should follow instructional arguments that do not conflict with the judges instructions, you may still be able to make such an argument to the jurors based on the standard pattern instruction on the subject. Many jurisdictions impliedly incorporate this concept into their standard pattern instructions by informing the jurors that they may not follow any statement by counsel concerning the law that "conflicts" with the judge’s 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. (See California Jury Instructions - Criminal, CALJIC 1.00, [Respective Duties Of Judy And Jury] ¶ 4 (West, 6th Ed. 1996); see also Judicial Council of California Criminal Jury Instructions - CALCRIM 200 [Duties of Judge and Jury], ¶ 4 and CALCRIM 761 [Death Penalty: Duty of Jury] ¶ 4; Alaska Pattern Criminal Jury Instructions, 1.33 [Arguments of Counsel] (Alaska Bar Association, 2007): Florida Standard Jury Instructions in Criminal Cases 2.7 [Closing Argument](Florida Bar, 1987); Idaho Criminal Jury Instructions, ICJI 201 [Role Of Judge And Jury] (Idaho Law Foundation, Inc., 1995); Minnesota Jury Instruction Guides - Criminal, CRIMJIG 3.11, [Statements Of Judge And Attorneys] ¶ 2, sent. 2 (West, 4th ed. 1999); New Jersey Model Jury Charges - Criminal, Non 2C Charges, Final Charge General Information, ¶ 4 (New Jersey ICLE 4th ed. 1997); Criminal Jury Instructions - New York, CJI (NY) 2d [Pre-Summation Instructions] (New York Office of Court Administration 1996); North Dakota Pattern Jury Instructions, NDJI-Criminal, 5.50 [Statements by Counsel and Judge] (State Bar Association of North Dakota, 1999); Model Utah Jury Instructions, Second Edition (MUJI 2d), CR105 [Role of Judge, Jury and Lawyers] and CR203 [Closing Arguments]; Dinse, Berger, & Lane, VERMONT JURY INSTRUCTIONS - CIVIL & CRIMINAL 5.01, [Instruction: Opening Remarks-Responsibilities Of Court And Jury] ¶ 6. (Lexis, 1993); Model Criminal Jury Instructions - Third Circuit (2006) 2.37 [Instructions Prior to Closing Arguments]; 6th Circuit Pattern Jury Instructions - Criminal 1.02 [Juror’s Duties] ¶ 3 (1991).)

Based on such an instruction counsel should be able to admonish the jury that specific legal points made during argument–not inconsistent with the judge’s instructions–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.

3. Urge Jurors To Send A Written Request For Clarification If They Have Questions As To The Accuracy Of Your Instructional Argument

The gambit described below has been successfully used by Michael McMahon of the Santa Barbara Public Defender’s office to cleverly circumvent the judge’s denial of a requested instruction. There are three ways such a strategy can succeed. First, the jurors may simply follow your instructional explanation thus countering the misleading language from the pattern instruction. Second, the jurors may submit a question about your instructional explanation of the pattern instruction at which point the judge will be hard pressed not to provide a clarification consistent with your argument. Third, the next time you make an instructional request before the same judge, he or she will be reluctant to deny the request on the basis that it is a matter for argument.

The McMahon gambit goes something like this:

a. Remind the jurors of their duty/right to rely on your clarification or explanation of the judge’s instructions so long as their is no conflict between the two or objection by the prosecutor.

b. State your instructional clarification or explanation preferably using a visual aid so the jurors have it before them in writing and can write it down in their notes. (You may want to remind the jurors that there is no right to a readback of counsels’ arguments if that is the case in your jurisdiction.) For example, if the instruction at issue involves the pattern instruction’s erroneous implication of a correlation between eyewitness certainty and accuracy your instructional argument could be as follows:

Instruction ___ includes the following factor/language _________________<insert instructional language>. You must not infer from this factor/language that there is a correlation between eyewitness certainty and accuracy. Whether or not any such correlation exists is exclusively a matter for you, the jurors, to decide based solely on the evidence presented at trial. Unless you conclude that such a correlation does exist, you must disregard this factor in deciding whether the prosecution has proved beyond a reasonable doubt that the defendant is the person who committed the charged offense.

c. Explain to the jurors how your instructional argument does not conflict with the judge’s instructions, and the prosecutor has not objected, so they should consider the judge’s instruction in light of your explanation/clarification of that instruction.

d. Invite the jurors to send a note to the judge [Footnote 3] if they have any question as to (a) the accuracy of your explanation/clarification or (b) their duty to consider the judge’s instruction in light of your explanation/clarification of it.

e. Remind the jurors of their individual right to submit written questions about the instructions.

4. 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 co-counsel. (See JuryInstruction.com FORECITE National™ 272.3.5 [Admonition Regarding Improper Summation/Closing Argument On Term Contained In Instructions But Not Defined].)

It is hoped that the above ideas will encourage you to not be deterred by judicial rubber stamping of pattern instructions and to continually seek out new ways to make jury instruction advocacy part of the adversarial process.

FOOTNOTES:

Footnote 1:  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.

Footnote 2: See also Wharton’s Criminal Procedure (West, 13th ed. 1989) § 450, pp. 997-999 [counsel is allowed to discuss the pertinent law and argue it to the jury]; see also Davis v. State (GA 1994) 443 S.E.2d 638, 640 [prosecutor permitted to discuss meaning of reasonable doubt instruction during argument]; Freels v. State (GA 1990) 394 S.E.2d 405, 407 [defense counsel has right to refer to applicable law as part of intelligent presentation of case]; see also People v. Glasco (IL 1993) 628 N.E.2d 781; 785 [trial court erred in precluding defense from arguing substance of accepted instruction regarding special scrutiny to be used when considering accomplice testimony]; see also In re Wagner (CA 1981) 119 Cal.App.3d 90, 113-14; People v. Sudduth (CA 1966) 65 C.2d 543, 548 [in court’s discretion counsel may incorporate correct statements of the law into argument]; People v. Travis (CA 1954) 129 Cal.App.2d 29, 36-39; People v. Anderson (CA 1872) 44 Cal. 65, 70-71.)

Footnote 3:  It is fundamental that the judge should stand ready to answer juror questions about the instructions. "The responsibility for adequate instruction becomes particularly acute when the jury asks for specific guidance." (Trejo v. Maciel (CA 1966) 239 Cal.App.2d 487, 498; see also McDowell v. Calderon (9th Cir. 1997) 130 F.3d 833, 837; accord, Estate of Mann (CA 1986) 184 Cal.App.3d 593, 614; People v. Miller (CA 1981) 120 Cal.App.3d 233, 236; Bartosh v. Banning (CA 1967) 251 Cal.App.2d 378, 387; Price v. Glosson Motor Lines (4th Cir. 1975) 509 F.2d 1033, 1036.) "Where ... the need for more [instruction] appears it is the duty of the judge ... to provide the jury with light and guidance in the performance of its task." (Wright v. U.S. (DC Cir. 1957) 250 F.2d 4, 11.) "When a jury makes explicit its difficulties a trial judge should clear them away with concrete accuracy." (Bollenbach v. U.S. (1946) 326 U.S. 607, 612-13; accord, Powell v. U.S. (9th Cir. 1965) 347 F.2d 156, 157-58; U.S. v. Harris (7th Cir. 1968) 388 F.2d 373, 377.) "To perform their job properly and fairly, jurors must understand the legal principle they are charged with applying ... A jury's request for ... clarification should alert the trial judge that the jury has focused on what it believes are the critical issues in the case. The judge must give these inquiries serious consideration." (People v. Thompkins (CA 1987) 195 Cal.App.3d 244, 250.) It is also well settled that the jurors should submit their questions writing. All jury inquiries should be submitted in writing, marked as court exhibit, and read into the record in the presence of defendant and counsel before the jury is recalled to the courtroom. Counsel should then be given an opportunity to be heard on what would constitute an appropriate responsive instruction. The jury should then be brought in, the note should be read again, and the response given. (See Rogers v. U.S. (1975) 422 U.S. 35, 39; Fillippon v. Vein Slate (1919) 250 U.S. 76, 81; U.S. v. Tillem (2nd Cir. 1990) 906 F.2d 814, 827; People v. Lozario (NY 1993) 81 N.Y.2d 801, 803; People v. O’Rama (NY 1991) 78 N.Y.2d 270, 277 [it is the preferred procedure to obtain juror questions in writing, mark the written inquiry as an exhibit and read it into the record. Counsel should then be afforded an opportunity to respond with any response to the question provided to the jury in open court]; United States v. Bustamante (6th Cir. 1986) 805 F.2d 201, 203 ["[I]t [i]s error for the trial judge to respond to the jury’s question other than in open court and in the presence of counsel for both sides"].)

Accordingly, there should be no dispute about a requested instruction that informs the jurors’ of their right to submit questions about the instructions such as the following:

Any juror may submit a question about the jury instructions to the court at any time by submitting a note to the bailiff or otherwise indicating to the bailiff that communication with the court is necessary. It is not necessary that the question be from the jury as a whole or that it be sent through the jury foreperson.

© Copyright 2010: Thomas Lundy, individually and doing business as JuryInstruction.com. All Rights Reserved. Reprinted with permission.