BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

2.08.1 General Instructions To Jury At End Of Criminal Case: Introductory Note

FORECITE National™ Materials Related To This Issue:

Chapter 276: Deliberations: Conduct and Duty of the Jury

Chapter 280: Jury Nullification

FRCP 30 outlines the procedure for the submission and consideration of the parties’ requests for specific jury instructions. It requires

1. that the court inform the parties before closing arguments of its proposed action upon the instructions requested by counsel; and

2. that the court give counsel adequate opportunity to object to the court’s instructions outside the hearing of the jury or, if requested, outside the presence of the jury.

There is no prescribed method for the court to settle on its final set of instructions. Some courts hold an on-the-record charge conference with counsel during trial. At that conference the tendered instructions are discussed and are accepted, rejected, or modified by the court.

Other courts, without holding a charge conference, prepare a set of proposed instructions from those tendered by counsel. These courts then give a copy of the proposed instructions to all counsel and permit counsel to take exception to the instructions. Thereafter, the court may revise its instructions if convinced by counsel’s objections that the instructions should be modified.

Still other courts require counsel to confer during trial and to agree, to the extent that they can, on the instructions that should be given. The court then considers only those instructions upon which the parties cannot agree.

The court may, of course, give an instruction to the jury that neither party has tendered.

While the court is free to ignore tendered instructions and to instruct the jury sua sponte, the usual practice is for the court to formulate the final instructions with the assistance of counsel and principally from the instructions counsel tendered.

Local practice varies as to whether a written copy of the instructions is given to the jury for use during its deliberations. Many courts always give the jury a written copy of the instructions. Some courts have the instructions recorded as they are given in court and permit the jury to play them back in the jury room. Some courts do neither but will repeat some or all of the instructions in response to a request from the jury.

Note that the court may instruct the jury either before or after closing arguments, or at both times. FRCP 30(c).

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

2.08.2 General Instructions To Jury At End Of Criminal Case: Outline Of Instructions

FORECITE National™ Materials Related To This Issue:

Chapter 276: Deliberations: Conduct and Duty of the Jury

Chapter 280: Jury Nullification

Instructions delivered at the end of a case consist of three parts: first, general rules that define and control the jury’s duties in a criminal case; second, definitions of the elements of the offenses charged in the indictment (information); third, rules and guidelines for jury deliberation and return of verdict. Many circuits have developed model or pattern jury instructions, and judges should consult the instructions that have been prepared for use in their circuits.

A. General rules:

1. Outline the duty of the jury:

(a) to find the facts from admitted evidence;

(b) to apply the law as given by the court to facts as found by the jury; and

(c) to decide the case on the evidence and the law, regardless of personal opinions and without bias, prejudice, or sympathy.

2. Clearly enunciate the three basic rules in a criminal case:

(a) presumption of innocence;

(b) burden of proof on government; and

(c) proof beyond a reasonable doubt.

3. Indicate the evidence to be considered:

(a) sworn testimony of witnesses;

(b) exhibits;

(c) stipulations; and

(d) facts judicially noticed.

4. Indicate what is not evidence:

(a) arguments and statements of counsel;

(b) questions to witnesses;

(c) evidence excluded by rulings of the court; and

(d) indictment (information).

B. Define with precision and with specific consideration of the law of your circuit the elements of each offense to be submitted to the jury and of each defense the jury is to consider.

C. Jury procedure

D. Consider providing the jury with a written copy or transcript of the jury instructions.

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

2.08.3 General Instructions To Jury At End Of Criminal Case: Other Sources

Pattern Criminal Jury Instructions (1987)

For a discussion of techniques for assisting the jury in civil trials, some of which may also be helpful in criminal trials, see Civil Litigation Management Manual 87–88 (Judicial Conference of the United States 2001) and Manual for Complex Litigation, Fourth 154–60 (2004)

For a discussion of jury-related problems in criminal cases, see Donald S. Voorhees, Manual on Recurring Problems in Criminal Trials 18–39 (5th ed. 2001)