A MANUAL OF JURY TRIAL PROCEDURES

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

4.4     Record on Instructions
          A. In General
          B. Criminal Cases
          C. Civil Cases

A MANUAL OF JURY TRIAL PROCEDURES - 2004

A. Record on Instructions: In General

Both the civil and criminal rules provide that the court must inform counsel of its proposed action upon the requested instructions prior to their arguments to the jury. The purpose of these rules is to avoid error by affording the trial judge an opportunity to correct instructions before the jury has decided the case. Investment Serv. Co. v. Allied Equities Corp., 519 F.2d 508, 510 (9th Cir. 1975). A failure to inform counsel of the disposition of their requested instructions is reversible error if it affects closing argument. United States v. Gaskins, 849 F.2d 454, 458 (9th Cir. 1988).

Both the civil and criminal rules require the court to provide an opportunity for counsel to make the objection out of the hearing of the jury and, in the case of criminal cases, out of the presence of the jury. It is customary for the court to have an in chambers conference with counsel in which the instructions are discussed and settled. While it is clear that a defendant in a criminal case need not be present during the discussions settling the instructions, see United States v. Romero, 282 F.3d 683, 689-90 (9th Cir.), cert. denied, 537 U.S. 858 (2002); United States v. Sherman, 821 F.2d 1337, 1339 (9th Cir. 1987), some judges prefer to settle the instructions in open court with the jury excused and the defendant present. If so, it would appear advisable that the entire discussion concerning instruction be on the record.

A MANUAL OF JURY TRIAL PROCEDURES - 2004

B. Record on Instructions: Criminal Cases

NCJIC Materials Related To This Issues:

NCJIC 2.5 [Record Of Instruction Proceedings]

It is the court's responsibility to ensure that the instructions adequately present the defendant's theory of the case. United States v. Munoz, 233 F.3d 1117, 1130 (9th Cir. 2000). Moreover, upon proper request, a specific instruction as to the defendant's theory of the case must be given, United States v. Hall, 552 F.2d 273, 275 (9th Cir. 1977), unless there is no evidence to support it. United States v. Winn, 577 F.2d 86, 90 (9th Cir. 1978).

Rule 30, Fed. R. Crim. P., requires that a defendant object to instructions with adequate specificity; an objection must distinctly state the matter to which the party objects, as well as "the grounds for the objection." Fed. R. Crim. P. 30; see also United States v. Kessi, 868 F.2d 1097, 1102 (9th Cir. 1989) (Rule 30 requires that a party make a "formal, timely and distinctly stated objection"). Offering an alternative instruction alone is not enough to satisfy the specificity objection. United States v. Campbell, 42 F.3d 1199, 1204 (9th Cir. 1994); United States v. Williams, 990 F.2d 507, 511 (9th Cir.), cert. denied, 510 U.S. 926 (1993). The district court must be made fully aware of the objecting party's position. See Kessi, 868 F.2d at 1102.

Global objections to the court's instructions, for instance "to the extent they are inconsistent to the ones that [were] submitted" are insufficient. United States v. Elias, 269 F.3d 1003, 1016 (9th Cir. 2001), cert. denied, 537 U.S. 812 (2002). Where there is no objection, review of jury instructions is subject to plain error analysis. United States v. Matsumaru, 244 F.3d 1092, 1102 (9th Cir. 2001); see also United States v. Keys, 133 F.3d 1282 (9th Cir.) (en banc), amended by 143 F.3d 479 (9th Cir.) and 153 F.3d 925 (9th Cir.), cert. denied, 525 U.S. 891 (1998)).

All instructions must be read by the judge to the jury, Morris v. United States, 156 F.2d 525, 531 n.4 (9th Cir. 1946), in the presence of counsel and the defendant. People of the Territory of Guam v. Marquez, 963 F.2d 1311, 1314 (9th Cir. 1992).

A MANUAL OF JURY TRIAL PROCEDURES - 2004

C. Record on Instructions: Civil Cases

Rule 51, Fed. R. Civ. P., which was substantively amended in 2003, allows a party to file a written request for instructions. The Ninth Circuit has said, however, that "[w]e have recognized one exception to the requirement of strict compliance with Rule 51. That exception is when it is obvious that in the process of settling the jury instructions the court was made fully aware of the objections of the party and the reasons therefor and further objection would have been unavailing." United States for Use &Benefit of Reed v. Callahan, 884 F.2d 1180, 1184 (9th Cir. 1989), cert. denied, 493 U.S. 1094 (1990).

The court must inform the parties of its proposed instructions and proposed action on the requests for instructions before final arguments are made to the jury. Fed. R. Civ. P. 51(b)(1). A party must object to the instructions on the record "stating distinctly the matter objected to and the grounds of the objection." Fed. R. Civ. P. 51(c)(1). An objection is timely if (A) a party that has been informed of an instruction or action on a request before the jury is instructed and before final jury arguments objects as provided in Rule 51(b)(2); or (B) a party that has not been informed of an instruction or action on a request objects promptly after learning that the instruction will be, or has been, given or refused. Fed. R. Civ. P. 51(c)(2).

Rule 51 provides that a party may assign as error (A) an error in an instruction actually given if that party made a proper objection under Rule 51(c), or (B) a failure to give an instruction if that party made a proper request under Rule 51(a), and, unless the court made a definitive ruling on the record rejecting the request, also made a proper objection under Rule 51(c). Fed. R. Civ. P. 51(d)(1). However, "[a] court may consider a plain error in the instructions affecting substantial rights that has not been preserved as required by Rule 51(d)(1)(A) or (B)." Fed. R. Civ. P. 51(d)(2).

As with Rule 30, Fed. R. Crim. P., the court in civil cases must give the parties an opportunity to make the objections out of the hearing of the jury. Fed. R. Civ. P. 51(b)(2). The parties should make all objections on the record.