PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER 1988
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1988 EDITION

In 1982, the Federal Judicial Center published a collection of pattern criminal jury instructions developed by a Judicial Center committee. The committee was chaired by Judge Prentice H. Marshall of the Northern District of Illinois. In his introduction to the committee's instructions, Judge Marshall suggested that their distinguishing characteristic was their comprehensibility to laymen. He expressed the committee's belief "that comparison of these pattern instructions with others in common use will reveal that a substantial simplification of vocabulary and syntax has been achieved."

The Marshall Committee instructions were prepared at a time when the fate of the proposed Criminal Code revision was unclear. They therefore dealt only with matters not likely to be changed by the enactment of a mew code. Specifically, they did not include instructions of the elements of particular offenses.

The present group, a subcommittee of the Judicial Conference's Committee on the Operation of the Jury System, was appointed by Chief Justice Burger to carry on the Marshall Committee's work. The subcommittee was charged with considering the need to develop instructions in other areas, "giving special emphasis to their comprehensibility to laymen."

In this collection, we offer 59 new criminal jury instructions, almost all of them dealing with particular offenses. The collection also includes reprints of the original Marshall Committee instructions, and there is a common table of contents. Except for the instruction on insanity, which we have revised to reflect the enactment of 18 U.S.C § 17, we have not revised either the original Marshall Committee instructions of the commentary that accompanied them.

In accordance with out mandate, we have focused on the task of drafting instructions that are both clear and accurate. We have made a particular effort to develop clear statements of the state of mind that is necessary for a finding of guilt. Following the leadership of the Ninth Circuit's Committee on Model Jury Instructions, we have adjured the terms "specific intent," "general intent," and "willfully."1 Indeed, we have gone a step further and avoided the word "knowingly," a term that is a persistent source of ambiguity in statute as well as jury instructions2. We have tried our best to make it clear what it is that a defendant must intend or know to be guilty of an offense. While we have no doubt fallen short of perfection, we believe that in this respect, at least, we have advanced the state of the art.

The subcommittee has followed the Marshall Committee's precedent of drafting instructions that are intended to be tailored to the particular case. We believe the judge should instruct the jury on the law applicable to the case, but only on that law. If the allegation is that the defendant forged a document by making it from scratch, it can only confuse a jury to instruct in terms of making or altering. We recognize, of course, that tailoring puts a burden on the district judge, but we believe it is a burden that should be accepted.

It follows from what has been said that the subcommittee recommends that trial judges not read criminal statutes to juries. First, the statutes often contain ambiguities -- particularly in the language about mens rea -- whose resolution is a function for the court. Second, the statutes are often drafted to cover a great variety of circumstances, most of which are irrelevant in a particular case. It may sometimes be necessary to discuss statutory language with a jury, particularly if it is used in the indictment. But we believe that reading the statute is more often harmful than helpful.

Professor Paul Marcus, reporter to the Marshall Committee, played the same role for us at the beginning of our labors. After his appointment as Dean of the University of Arizona Law School, he was joined as coreporter by Professor Thomas A. Mauet of that institution. who has in fact carried the laboring oar. Professor Thomas B. Littlewood, Head of the Department of Journalism at the University of Illinois, served again as the journalist adviser. Anthony Partridge of the Federal Judicial Center has also provided support.

The instructions were reviewed in draft by the members of the Committee on the Operation of the Jury System, by a number of other district judges, and by a number of members of the bar, including both federal prosecutors and defense lawyers. We are grateful to all of them. Their comments were carefully considered, many of them were accepted, and we are sure that our product is the better for their participation. It is our hope that, with their assistance, we have produced a set of instructions that are consistent with circuit law in all circuits except as noted in the accompanying commentary. Obviously, individual judges should make their own determinations about this, particularly in the light of evolving interpretations of many of the statutes involved.

We hope that our fellow judges, as well as members of the bar, will find that these instructions facilitate the task of empowering jurors to render verdicts in accordance with the law.

[1987]*

THOMAS A. FLANNERY. CHAIRMAN

Judge, United States District Court for the
District of Columbia

* Publisher's note -- Report was officially designated as "1987 Report."

Footnote 1: See Committee on Model Jury Instructions, Ninth Circuit, Manual of Model Jury Instructions for the Ninth Circuit, §§ 5.06, 5.07 (1985 ed.). Use of "specific intent" and "general intent" in jury instructions was criticized in Liparota v. United States, 471 U.S. 419, 433 n. 16 (1985).

Footnote 2: LaFave and Scott observed some years ago that it is often unclear how far down the sentence the word "knowingly" is intended to travel. W. LaFave & A. Scott. Jr., Handbook on Criminal Law 193 (1972). This observation was cited in Liparota v. United States, 471 U.S. 419, 424 n.7 (1985), a case in which the Court split on that issue.

PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER – 1988

The criminal jury instructions contained in this book were prepared under the auspices of the Federal Judicial Center's Committee to Study Criminal Jury Instructions, consisting of

Judge Thomas A. Flannery of the District Court for the District of Columbia, Judge Patrick E. Higginbotham of the District Court for the Northern District of Texas, and the undersigned. The instructions were prepared in the context of uncertainty about the fate of the proposed revision of the Criminal Code, and therefore are limited to matters unlikely to be changed by the enactment of a new code. Thus, the instructions do not include the definitions or elements of commonly prosecuted crimes and touch only briefly on frequently encountered defenses. For those subjects we refer the bench and bar to their present practice or the efforts of others.

The distinguishing feature of these instructions, we believe, is their comprehensibility to laymen. How much attention juror give to even the most lucid instructions is a question that may never be answered. But surely we judges have an obligation to communicate as well as we know how.

The importance of communicating well with lay jurors is widely acknowledged by drafters of pattern instructions. It is nevertheless clear that most pattern instructions do not do it

very well. It is all too easy for the lawyers and judges who engage in the drafting process to forget how much of their vocabulary and language style was acquired in law school. The principal barrier to effective communication is probably not the inherent complexity of the subject matter, but our inability to put ourselves in the position of those not legally trained.

Our committee has tried to overcome this obstacle by including in our deliberations a distinguished journalist who is not legally trained and by following some drafting rules derived from research on juror understanding of instructions. We believe that comparison of these pattern instructions with others in common use will reveal that a substantial simplification of vocabulary and syntax has been achieved. That impression is borne out by standard tests for measuring the difficulty of written material, as is illustrated in appendix B.

The drafting rules we have tried to follow are set forth in appendix A, and we commend them to our fellow judges for guidance in fashioning instructions for situations that are not adequately covered here.

Another possible problem of communication is worthy of comment. It is that an opportunity for confusion may be created when different instructions on the same subject to jurors drawn from the same pool. Our instruction on reasonable doubt. for example, takes note of the fact that some of the jurors may have previously served in civil cases, and points out that the standard of proof in criminal cases is more exacting. It does not take note of the possibility that some of the jurors were previously exposed to a different definition of "reasonable doubt," and explain how the jurors ire to deal with the apparent conflict. This kind of problem may deserve more attention than it has traditionally received. Perhaps there are some instructions on which an entire district court should agree to take a common approach.

Following an idea developed in the pattern instructions of the Fifth Circuit District Judges Association. the instructions in this book are presented in a sequence that approximates the likely sequence in which they would be delivered. Some variation from case to case must of' course be anticipated, but this organization wilt generally enable the judge to scan the table of contents, select the instructions relevant to the particular case, and then use them without the necessity of flipping back and forth. We have not adopted the further innovation of' the Fifth Circuit instructions, that of having forms that can be assembled with little or no retyping into a complete set of instructions suitable for sending to the jury. It is our view that instructions should often contain references to the subject matter of the evidence and the names of the parties and witnesses, and we have made no effort to produce instructions that can be used without being tailored to fit the particular case.

The view that instructions should be tailored also explains our decision to use the masculine singular pronoun and singular verbs in the pattern instructions. We contemplate that, when the instructions are delivered to the jury, each pronoun wilt be masculine or feminine, and each pronoun and verb singular or plural, as the circumstances of the particular case demand. We did not think it necessary to set forth all the possible variants each time a pronoun or verb is used.

The principal burden of draftsmanship has been borne by our reporter, Professor Paul Marcus, Professor of Law, University of Illinois at Urbana-Champaign. Our journalist adviser was Professor Thomas B. Littlewood, Head of the Department of Journalism at the same institution. Allan Lind and Anthony Partridge of the Federal Judicial Center provided guidance derived from the psycholinguistic research, reviewed and criticized the several drafts, and participated in all of the committee's meetings. Each of these four people has made an important contribution to the final product. and we are grateful to them for it.

The instructions were reviewed in draft by an experienced trial judge from each circuit with a view to ensuring that conflict with circuit law had successfully been avoided. While we assume that district judges who use the instructions will exercise their own judgment, we believe that the instructions should be acceptable in all circuits except as noted in the commentary accompanying particular instructions. For this review of the draft instructions, we are indebted to Judges John J. McNaught (D. Mass), Jacob Mishler (E.D. N.Y),. Frederick B. Lacey (D. N.J), Walter E. Hoffman (E.D. Va.), William K. Thomas (N.D. Ohio), Hubert L. Will (N.D. Ill), Warren K. Urborn (D. Neb), Donald S. Voorhees (W.D. Wash). Wesley E. Brown (D. Kan), and Wm. Terrell Hodges (M.D. Fla). This group offered many helpful suggestions. They are, of course. not to be held responsible for any deficiencies that remain.

Finally, I must acknowledge that we have freely taken ideas from existing pattern instructions used in federal district courts. Naturally, we hope we have improved on them. But we are fully cognizant of the extent to which our work has depends on the work of others. Our debt to the authors of the following instructions is a substantial one:

Devitt & Blackmar, Federal Jury Practice and Instructions (3d ed. 1977).

Committee on Pattern Jury Instructions. Fifth Circuit District Judges Association. Pattern Jury Instructions (Criminal Cases) (1978).

Seventh Circuit Judicial Conference Committee on Jury Instructions, Manual on Jury Instructions in Federal Criminal,. 33 F.R.D. 523-614 (1963).

Committee on Federal Criminal Jury Instructions of the Seventh Circuit, Federal Criminal Jury Instructions (1980).

Criminal Jury Instructions Committee, Young Lawyers Section. D.C. Bar Association,. Criminal Jury Instructions, District of Columbia (3d ed. 1978).

We hope that our colleagues on the district bench and the practicing bar will find these instructions helpful.

PRENTICE H. MARSHALL, Chairman
Judge, United States District Court for the
Northern District of Illinois