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

4.5     Preliminary Charge and Final Instructions
          A. Preliminary Charge to Jurors
          B. Formal Charge at End of Trial
          C. Providing Copies of Instructions to Jury
          D. Supplemental Instructions During Deliberations

A MANUAL OF JURY TRIAL PROCEDURES - 2004

A.     Preliminary Charge and Final Instructions: Preliminary Charge to Jurors

NCJIC Chapter 12: Preliminary Instructions

In addition to the preliminary instructions, some judges give a preliminary charge to the jury regarding the elements of the offense and related principles. See 9TH CIR. CRIM. JURY INSTR. Preliminary Instructions 1.1, 1.2, 1.3, 1.4, 1.5, 1.6, 1.7, 1.8, 1.9, 1.10, 1.11, 1.12, 1.13 (2003); 9TH CIR. CIV. JURY INSTR. Preliminary Instructions 1.1-1.16 (2001). If the judge gives the jury a preliminary charge on the elements of the offense, the jury should be cautioned that the formal charge to the jury will come at the end of the trial and will be binding on the jury.

See also §§ 3.2 and 3.3.

A MANUAL OF JURY TRIAL PROCEDURES - 2004

B.     Preliminary Charge and Final Instructions: Formal Charge at End of Trial

Many courts are now instructing at the close of the evidence and before argument. The Federal Rules were specifically amended in 1987 to permit this practice. See FRCRP 30(c); Fed. R. Civ. P. 51(b)(3). Accordingly, a judge has discretion to give the bulk of the instructions (including a description of the elements of the claims or offenses) before argument. The judge may then instruct on the rules governing deliberations after counsel have concluded their arguments. The court reporter should record the jury instructions as they are being read by the judge. Under 28 USC 753(b), court reporters are required to record verbatim "all proceedings in criminal cases had in open court." However, if the reporter fails to record the instructions, the case will not result in a reversal unless the defendant can demonstrate prejudice. See United States v. Antoine, 906 F.2d 1379, 1381 (9th Cir.), cert. denied, 498 U.S. 963 (1990); United States v. Carrillo, 902 F.2d 1405, 1409-10 (9th Cir. 1990).

A MANUAL OF JURY TRIAL PROCEDURES - 2004

C.     Preliminary Charge and Final Instructions: Providing Copies of Instructions to Jury

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

The trial court should furnish the jury with a copy of the written instructions to assist them during deliberations. See United States v. McCall, 592 F.2d 1066, 1068 (9th Cir.) (". . . the preferred procedure [is] sending a copy of [the] instructions to the jury at the start of deliberations"), cert. denied, 592 U.S. 1066 (1990); and see United States v. Tagalicud, 84 F.3d 1180, 1184 (9th Cir. 1996) (criticizing the trial court for giving instructions once, orally, and for not sending the jury instructions into the jury room). The trial court may consider providing a copy of the jury instructions to each juror during the reading of the instructions and for use during deliberations.

Providing a correct copy of the instructions may assist in nullifying a judge's misstatement of the law made during the reading of the jury instructions. See United States v. Ancheta, 38 F.3d 1114, 1116-17 (9th Cir. 1994).

A MANUAL OF JURY TRIAL PROCEDURES - 2004

D.     Preliminary Charge and Final Instructions: Supplemental Instructions During Deliberations

See § 5.2.C.