7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

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12.2 Preliminary Instructions: Role Of Charging Document

This instruction is necessary because, as stated by the court in United States v. Garcia, 562 F.2d 411, 417 (7th Cir. 1977), "In almost any criminal case ... the fact of the indictment has some emphasis. To the degree an uninstructed jury considers the matter, there is a real possibility that a charge leveled by a grand jury composed of its peers will weigh in the petit jury’s balance on the side of guilt." Instruction on this subject is particularly important when the court permits the jury to take the indictment with it during deliberations. 2 C. Wright, Federal Practice and Procedure § 486 at 719-20 (1982).

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

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LESSER OFFENSES (VOLUME 12)

If you find the defendant not guilty of the offense of _____________ as charged in Count ___ [or if you cannot unanimously agree that the defendant is guilty of that offense], then you must go on to consider whether the government has proved the offense of____________________________.

This instruction is designed to be given immediately before Instruction 4.02 -- "Issues in the Case and Burden of Proof", detailing the elements of the included offense.

Rule 31(c) of the FRCRP provides that "[t]he defendant may be found guilty of an offense necessarily included in the offense charged . . . . " The rule restates prior law, see Berra v. United States, 351 U.S. 131 (1956), and permits the jury to find the defendant guilty of a lesser included offense even though it was not explicitly set forth in the indictment.

The Supreme Court resolved conflicts within the Courts of Appeals concerning how to define a lesser included offense in Schmuck v. United States, 489 U.S. 705 (1989). In order to be a lesser included offense, "one offense is not ‘necessarily included’ in another unless the elements of the lesser offense are a subset of the elements of the charged offense. Where the lesser offense requires an element not required for the greater offense, no instruction is to be given under Rule 31(c)." Schmuck v. United States, 489 U.S. at 716. This has also been addressed in the Seventh Circuit in United States v. Boyles, 57 F.3d 535 (7th Cir. 1995):

Under the elements only test, an offense is a lesser included one only if all of its statutory elements can be demonstrated without proof of any fact or element in addition to those which must be provided for the greater offense. An offense is not a lesser-included one if it contains an additional statutory element.57 F.3d at 544 (7th Cir. 1995)(citations omitted).

Second, an instruction for a lesser included offense is proper "only if the evidence would permit a rational jury to find guilt under the lesser charge and acquit on the charge alleged. United States v. Windsor, 981 F.2d 943, 946 (7th Cir. 1992). Thus, the instruction is not automatic if there is a lesser-included offense under Schmuck. "Only if under a different, but reasonable view, the evidence is sufficient to establish guilt of the lower degree and also leave a reasonable doubt as to some particular element included in the higher degree but not the lower, should the lesser crime also be submitted to the jury." United States v. Boyles, 57 F.3d 535, 545 (7th Cir. 1995).

Third, an instruction for a lesser included offense is proper only when conviction of the greater offense requires that the jury find a disputed fact which is not an element of the lesser offense. "[A] lesser-offense charge is not proper where, on the evidence presented, the factual issues to be resolved by the jury are the same as to both the lesser and greater offenses . . . . In other words, the lesser offense must be included within but not, on the facts of the case, be completely encompassed by the greater." Sansone v. United States, 380 U.S. 343, 349-50 (1965); United States v. Rein, 848 F.2d 777, 784 (7th Cir. 1988).

The mutuality doctrine which permits a lesser included offense instruction only if it may be requested by both sides of the case was rejected by the D.C. Circuit in United States v. Whitaker, 447 F.2d 314, 317 (D.C. Cir. 1971), and has been criticized by one commentator, 8A Moore’s Federal Practice ¶ 31.03(2). While the Seventh Circuit abandoned the doctrine in United States v. Schmuck, 840 F.2d 384, 387 (7th Cir. 1988), the Supreme Court reaffirmed "the mutuality implicit in the language of Rule 31(c)" on appeal. United States v. Schmuck, 489 U.S. 705, 718.

The second sentence of this instruction permits its modification to conform to Judge Friendly’s recommendation in United States v. Tsanas, 572 F.2d 340 (2d Cir.), cert. denied, 435 U.S. 994 (1978). In Tsanas, the court noted that although the prevailing practice in the federal courts is to instruct the jury that it may consider the lesser offense only after finding the defendant no guilty of the greater, some federal courts have permitted the jury if unable to agree on a verdict on the greater offense to proceed to consider the lesser. Finding that both forms of instructions had advantages as well as disadvantages for the government as well as the defense, the court concluded:

With the opposing considerations thus balanced, we cannot say that either form of instruction is wrong as a matter of law. The court may give the one that it prefers if the defendant expresses no choice. If he does, the court should give the form of instruction which the defendant seasonably elects. 573 F.2d at 346. See also Pharr v. Israel, 629 F.2d 1278, 1280-82 (7th Cir. 1980)cert. denied, 449 U.S. 1088 (1981).

If the defendant denies his guilt of the lesser included offense, the court should instruct the jury that the defendant has denied his guilt of that offense as well.

The instruction does not use the term "lesser included offense." The use of this lawyer’s terminology is never helpful to a jury in its deliberations. The use of the term may lead the jury to decide the issue by wrongly assuming that the lesser included offense may require a lesser burden of proof or carry a lesser sentence.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

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270.2 Presumption Of Innocence - Prosecution Burden To Prove Guilt

270.3 Presumption Of Innocence: Specific Words And Phrases

The defendant is presumed to be innocent of [each of] the charge[s]. This presumption continues during every stage of the trial and your deliberations on the verdict. It is not overcome unless from all the evidence in the case you are convinced beyond a reasonable doubt that the defendant is guilty as charged. The government has the burden of proving the guilt of the defendant beyond a reasonable doubt. This burden of proof stays with the government throughout the case. The defendant is never required to prove his innocence or to produce any evidence at all.

Regardless of what may be constitutionally required, compare Taylor v. Kentucky, 436 U.S. 478 (1978) (failure to give instruction on the presumption of innocence is reversible error) with Kentucky v. Wharton, 441 U.S. 786 (1979) (instruction is not constitutionally required in every case), it is well established that juries in federal criminal trials should be instructed on both the presumption of innocence (See also Delo v. Lashley, 507 U.S. 272 (1993) (failure to give instruction in capital case not automatically reversible error) and United States v. DeJohn, 638 F.2d 1048, 1057-59 (7th Cir. 1981) (instruction recommended, but a long and confusing instruction may do more harm than good)) and the government's burden to prove guilt beyond a reasonable doubt. Coffin v. United States, 156 U.S. 432, 452-61 (1895); United States v. Nelson, 498 F.2d 1247 (5th Cir. 1974); McDonald v. United States, 284 F.2d 232 (D.C. Cir. 1960). The instruction conforms to this practice while eliminating confusing and unhelpful elaborations which sometimes accompany instructions on the presumption of innocence.

The Committee decided that there should be no instruction stating that the burden of proof does not shift to the defendant. This is a legal concept foreign to most laymen which might only confuse jurors and detract from the main thrust of the instruction that the burden of proof lies with the government.

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270.4 Reasonable Doubt Standard: General Principles

270.5 Reasonable Doubt Standard: Specific Words And Phrases

The Committee recommends that no instruction be given defining "reasonable doubt. "In a long line of cases, the Seventh Circuit has repeatedly eschewed attempt to define reasonable doubt. See, e.g., United States v. Hanson, 994 F.2d 403, 408 (7th Cir. 1993); United States v. Bardsley, 884 F.2d 1024, 1029 (7th Cir. 1989); and cases cited in United States v. Blackburn, 992F.2d 666, 668 (7th Cir.), cert. denied, 114 S. Ct. 393 (1993). The Court has found that "‘an attempt to define reasonable doubt presents a risk without any real benefit.’" United States v. Reynolds, 64 F.3d 292, 298 (7th Cir. 1995), quoting Hanson, 994 F.2d at 408. Therefore, the Court has consistently upheld district court refusals to define the phrase, finding that the definitions are likely to "confuse juries more than the simple words themselves." Blackburn, 992F.2d at 668. Accord, United States v. Langer, 962 F.2d 592, 599 (7th Cir. 1992); United Statesv. Shaffner, 524 F.2d 1021, 1023 (7th Cir. 1975).

The phrase "reasonable doubt" is self-explanatory and is its own best definition. Further elaboration "tends to misleading refinements" which weaken and make imprecise the existing phrase. United States v. Lawson, 507 F.2d 433, 443 (7th Cir. 1974), cert. denied, 420 U.S. 1004(1975). A judge should not define the term for the jury even if asked to do so during deliberations. United States v. Blackburn, 992 F.2d 666, 668 (7th Cir.), cert. denied, 114 S.Ct.393 (1993).

Neither "substantial doubt" nor "honest doubt" is an acceptable explanation. United States v. Loman, 551 F.2d 164 (7th Cir.), cert. denied, 433 U.S. 912 (1977), United States v. Wright, 542 F.2d 975 (7th Cir. 1976), cert. denied, 429 U.S. 1073 (1977), United States v. Hall, 854 F.3d 1036 (7th Cir. 1988), United States v. Crouch, 528 F.2d 625 (7th Cir.), cert. denied, 429 U.S. 900 (1976), United States v. Gratton, 525 F.2d 1161 (7th Cir. 1975), United States v. Emalfarb, 484 F.2d 787 (7th Cir.), cert. denied, 414 U.S. 1064 (1973). "Fair doubt" is unhelpful, but not automatically reversed. United States v. Hall, 854 F.2d 1036 (7th Cir. 1988). The Supreme Court has also recently rejected "grave uncertainty," "actual substantial doubt," and "moral certainty." Cage v. Louisiana, 498 U.S. 39 (1990). Defining reasonable doubt in a constitutionally deficient manner cannot be harmless error. Sullivan v. Louisiana, 508 U.S. 275 (1993).

Although the Seventh Circuit has refused to adopt a per se rule against defining reasonable doubt, it did, in another context, describe the "use of an instruction defining [it as] equivalent to playing with fire." United States v. Shaffner, 524 F.2d 1021, 1023 (7th Cir. 1975), cert. denied, 424 U.S. 920 (1976). See also United States v. Blackburn, 992 F.2d 666, 668 (7th Cir.), cert. denied, 114 S.Ct. 393 (1993).

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

In view of Instruction 4.02--"Issues in the Case and Burden of Proof", and the earlier charge informing the jury as to the charge and the defendant's plea of not guilty, no further definition of the crime is necessary.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

The Committee finds that it is unnecessary to have a general instruction defining the terms "felony" or "misdemeanor" because that determination is a question of law.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

The Committee determined that no instruction should be given with respect to the content or effect of a bill of particulars. The admissibility of evidence in light of a bill of particulars is a question of law for the court. If the court receives it, then it should be considered by the jury under the instructions relating to the case as a whole.