A MANUAL OF JURY TRIAL PROCEDURES - 2004
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Chapter Four: Jury Instructions

4.2    Submission of Instructions

NCJIC 2.1 [Instruction Delivery: Written/Oral/Recorded]   

Rule 30, Fed. R. Crim. P. and Rule 51, Fed. R. Civ. P., govern instructions to a jury in a criminal and civil case, respectively. Both rules provide that at the close of the evidence or at an earlier time that the court reasonably sets, a party may file a written request that the court instruct the jury on the law as specified in the request. In civil cases a party may also file requests for instructions after the close of the evidence on issues that could not reasonably have been anticipated at an earlier time set for requests. Fed. R. Civ. P. 51(a)(2). When the request is made, the requesting party must furnish copies to every other party. The court should be careful to consider instructions submitted at any time during trial. See Fed. R. Crim. P. 30; Fed. R. Civ. P. 51.

Ordinarily a party may not assert error where an instruction was not submitted in writing, Swiderski v. Moodenbaugh, 143 F.2d 212, 213 (9th Cir. 1944). However, where the pretrial order specified the parties§ legal contention, and the record demonstrated that the trial court was fully informed but believed the contention in error, the fact that the charge was requested orally did not preclude a finding of error. Id.