Article Bank # A-89 (Re: NCJIC 1.4.14 [Strategies For Persuading The Trial Judge To Modify Or Supplement The Pattern Instructions].)

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   This is the second in a series of articles addressing the role of standard pattern instructions in American criminal jurisprudence. It is the premise of these articles that judges and practitioners are overly deferential to the standard pattern instructions to the point that jury instruction practice often is almost entirely removed from the adversarial arena. It is hoped that these articles will provide conceptual, legal and practical ideas for reversing the trend toward "jury instruction by number" and returning vigorous pro-active advocacy to criminal jury instruction practice.

    Part I discussed the inherent limitations of pattern jury instructions and argued that trial judges have the power and duty to modify or supplement such instructions when appropriate.

    In recognition of the practical reality that judges will always heavily rely on the standard pattern instructions, Part II attempts to provide strategies for persuading the judge to give requested non-pattern instructions.

    1.    Lay The Groundwork For The Instruction Early

    "Preparation is still the greatest technique for winning." (Larry S. Pozner, "Lessons Learned," The Champion (NACDL 6/99) p. 7.) And, an essential part of such preparation is early consideration of jury instructions. The chances of winning later battles over jury instructions will be greatly increased if the ground work is laid before and during trial.

    This is so because "educating" the judge is crucial to a successful instruction argument. This educational process is more likely to be effective if it is done as part of a consistent, integrated defense strategy rather than a last minute request that comes without prior notice. "Litigators who desire a special ... instruction are less likely to get it if they simply wait for the end of the case and then request it. The best means for persuading a judge [to give a special instruction] is to wage a case-long campaign of education. Pretrial motions, offers of expert testimony [footnote omitted], and the cross-examination process should all have as their subsidiary goal the acceptance of a request for [a special] instruction." [Footnotes omitted.] (Loftus & Doyle, Eyewitness Testimony - Civil & Criminal (Lexis, 3rd ed. 1997) § 12.2, p. 330.)

    2.    Emphasize The Defendant’s Right To Non-Pattern Instructions Under Domestic Rules
           And The Federal Constitution

    Part I of this series discussed how a jurisdiction’s patter instructions, no matter how entrenched, are not sacrosanct. (See http://juryinstruction.com/featured_article_5.htm.) Often, specific references in this regard can be found in the pattern instruction book itself. (Ibid.) Additionally, domestic case law and/or federal constitutional jurisprudence can provide authority in support of the defendant’s right to modify and supplement the standard pattern instruction. (See Section 3a, below.)

    3.    Explain Why The Pattern Instruction Is Inadequate

            a.    The Instruction Doesn’t Cover The Point

    If the pattern instructions do not cover the issue addressed by the requested instruction then there should be a right to the instruction so long as it is legally authorized and factually appropriate. Even states with the most entrenched and dominant pattern instruction (e.g., Illinois) recognize that the pattern instructions may be supplemented to cover matters not addressed in the pattern instructions.

    For example, most pattern instruction books do not have an instruction on the defense theory of third-party guilt. Yet the defense that a person other than the accused committed the crime is one which should be available in every jurisdiction. (See generally, U.S. v. Calle (11th Cir. 1987) 822 F2d 1016, 1021 [third-party guilt is substantive defense which cannot be limited by the trial court pursuant to rules governing impeachment]; United States v. Stevens (3rd Cir.1991) 935 F2d 1380, 1401-03; United States v. Armstrong (9th Cir.1980) 621 F2d 951, 953; Larimore v. State (AR 1994) 877 SW2d 570, 575.) Hence, when such a defense is supported by the facts, a defense theory instruction should be given notwithstanding the absence of such an instruction in the pattern instruction book. (See e.g., Hill v. State (TX 1979) 585 SW2d 713.)

    Of course, counsel must be ready to answer the contention that the requested instruction is covered by other more general instructions which are already being given. For example, the judge may suggest that the third-party guilt instruction is covered by the general instruction requiring the prosecution to prove guilt beyond a reasonable doubt. Rejoinders to such objections could include the following:

    First, when it comes to defense theories there is abundant domestic law and federal constitutional jurisprudence supporting the right to an instruction. (See e.g, O'Malley, Grenig & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 7.03 [Requests For Instructions] p. 468-69 (West, 5th ed. 2000) ["party is entitled to have proper requested instructions presenting the party’s theory of the case to the jury"]; see also 250.1.1 [Litigant’s Right To Instruction On Theory Of Case]; 250.1.5 [Due Process Right To Balance Between Defense And Prosecution As Ground For Defense Theory Instruction]; 300.6.1 [Constitutional Claims: Failure To Instruct Upon Defenses]; 300.6.2 [Defense Theory Instruction Required By Due Process, Compulsory Process And Confrontation].) [Readers may access these excerpts from  at article.htm ["Going Beyond The Standard Pattern Instructions Part II: Strategies For Persuading The Trial Judge To Modify Or Supplement The Pattern Instructions"].]

    "[A]s a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor." (Mathews v. United States (1988) 485 US 58, 63 [108 SCt 883; 99 LEd2d 54]; see also Conde v. Henry (9th Cir. 1999) 198 F3d 734, 739; McKenzie v. State (TX 1975) 521 SW2d 637, 639 [court is required, when a proper request is made, to instruct on every defensive issue raised by the evidence].)

    Second, analogous pattern instructions may support the argument in favor of a supplemental instruction. For example, most pattern instructions include an alibi instruction which is closely analogous to the defense of third-party guilt. If instruction on alibi is allowed, then logically instruction on third-party guilt should also be allowed.

             b.    The Instruction Is An Incorrect Statement Of The Law

    Another major reason for modifying or supplementing standard pattern instructions is if they are incorrect, inaccurate or misleading.

    For example, because pattern instruction books are rarely updated more than once a year, there often are changes in the law not reflected in the pattern instructions.

    And, even if an instruction has been accepted for years this doesn’t mean it is correct. For example, most standard pattern instructions on specific defense theories such as intoxication and tell the jury that it "may" consider the evidence presented by the defense. This permissive language is incorrect and misleading because it implies that the jury can ignore the defense evidence without considering it. (See Giles v. State (AR 1977) 549 SW2d 479, 484-85 [misconduct for jurors to arbitrarily and completely disregard mitigating evidence of defendant’s severe cognitive impairment due to organic brain syndrome]; Duckworth v. State (AR 1907) 103 SW 601, 602 [relevant and competent testimony in a criminal case should not be arbitrarily disregarded by the jury]; People v. Sumner (IL 1982) 437 NE2d 786, 788 [jury must consider all of the evidence; trier of fact cannot simply ignore exculpatory evidence]; see also 251.4.2.4 [Good Character Evidence: Jury "Must" Consider]; 256.6.1.6 [Voluntary Intoxication: Jury "Must" Consider]; 16.3.1 [Jury Must Consider All Of The Evidence].) [Readers may access these excerpts from  at article.htm ["Going Beyond The Standard Pattern Instructions Part II: Strategies For Persuading The Trial Judge To Modify Or Supplement The Pattern Instructions"].]

   4.    Articulate The Specific Legal Principles Which Are The Basis For The Instruction

    The articulation of legal support for an instruction is challenging. There will not always be domestic authority directly on point one way or the other. In this regard it may be necessary to argue by analogy or to rely on authority from other jurisdictions.

    Special consideration should be given to federal constitutional principles that may apply such as in the case of a defense theory instruction. (See 250.1.3 [Constitutional Right To Due Process And A Fair Trial By Jury As Ground For Defense Theory Instruction]; 300.6.1 [Constitutional Claims: Failure To Instruct Upon Defenses]; 300.6.2 [Defense Theory Instruction Required By Due Process, Compulsory Process And Confrontation].)

    Even when state law is directly to the contrary federal constitutional principles may provide a viable argument. The U.S. Supreme Court has consistently held that domestic rules of evidence may not be invoked to preclude a criminal defendant from establishing that he has been denied a fair trial. (See Rock v. Arkansas (1987) 483 US 44 [107 SCt 2704; 97 LEd2d 37]; Green v. Georgia (1979) 442 US 95 [99 SCt 2150; 60 LEd2d 738]; Davis v. Alaska (1974) 415 US 308 [94 SCt 1105; 39 LEd2d 347]; Chambers v. Mississippi (1973) 410 US 284 [93 SCt 1038; 35 LEd2d 297]; Washington v. Texas (1967) 388 US 14 [87 SCt 1920; 18 LEd2d 1019].) [To read the excerpts from  go to article.htm ["Going Beyond The Standard Pattern Instructions Part II: Strategies For Persuading The Trial Judge To Modify Or Supplement The Pattern Instructions"].]

    5.    Emphasize The Factual Predicate For The Instruction

           a.    The Evidentiary Threshold Is Low

    The amount of evidence required to justify an instruction request is minimal. Some jurisdictions use the "any evidence" standard (see e.g., U.S. v. Dove (2nd Cir. 1990) 916 F2d 41, 47 [criminal defendant is entitled to instructions relating to his theory of defense, for which there is some foundation in the proof, no matter how tenuous the defense may appear to the trial court]; State v. Powell (NJ 1980) 419 A2d 406, 412 ["very slight evidence on a theory of defense will justify the giving of an instruction"].) Other jurisdictions require evidence deserving of consideration or substantial evidence. (See e.g., U.S. v. Perez (7th Cir. 1996) 86 F3d 735, 736; People v. Barrick (CA 1982) 33 C3d 115, 132 [187 CR 716] [internal citations and quotation marks omitted].)

    Hence, under either standard, the evidentiary threshold is low and counsel should make sure that the trial judge understands this.

             b.    The Trial Judge May Not Evaluate Witness Credibility

    In deciding whether there is sufficient evidence to instruct, the trial court may not evaluate the credibility of witnesses. (See People v. Wickersham (CA 1982) 32 C3d 307, 324-25 [185 CR 436].) Hence, if there is evidence in support of the instruction, the instruction must be given regardless of the source of the evidence. (See e.g., People v. Castillo (CA 1987) 193 CA3d 119, 125-26 [238 CR 207]; see also U.S. v. Hairston (9th Cir. 1995) 64 F3d 491, 493-94.)

    "It is not for the judge, but rather for the jury, to ‘appraise the reasonableness or unreasonableness of the evidence’ relating to the [defense] theory." (U.S. v. Duncan (6th Cir. 1988) 850 F2d 1104, 1117; see also People v. Marshall (CA 1996) 13 C4th 799, 847 [55 CR2d 347].)

            c.    The Evidence Must Be Viewed In Light Most Favorable To Party Requesting The Instruction

    Courts review the evidence "in a light most favorable [to the proponent of the instruction]" in determining whether or not the instruction should be given. (State v. Thiel (ND 1987) 411 NW2d 66, 67; see also Cobo v. Raba (MO 1997) 481 SE2d 101, 104 ["trial court must instruct the jury on a claim or defense if there is substantial evidence, when viewed in the light most favorable to the proponent, of the claim or defense"]; Smith v. Buckhram (NC 1998) 372 SE2d 90, 94 [evidence must be viewed "in the light most favorable to the proponent"].)

    Thus, where the evidence at trial, viewed in the light most favorable to the accused, sufficiently supports a claimed defense, the court should instruct the jury as to the defense and must do so when requested. (See U.S. v. Ruiz (11th Cir. 1995) 59 F3d 1151, 1154; State v. O'Daniel (HI 1980) 616 P2d 1383, 1390; State v. Colbert (KS 1989) 769 P2d 1168, 1173; People v. Farnsworth (NY 1985) 481 NE2d 552, 552; Larsen v. State (WI 1978) 271 NW2d 647, 650; Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 2:03.) [Charge The Jury-Necessity To Charge] (West, 1999).)

            d.    Doubt Resolved In Favor Of Defendant

    "Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused." (People v. Flannel (CA 1979) 25 C3d 668, 685 [160 CR 84]; see also People v. Gaines (NY 1994) 83 NY2d 925, 927.)

            e.    Instruction Required Even If Evidence Presented By The Prosecution

    It is not necessary that the evidence authorizing an instruction be affirmatively introduced by the defendant. (See Cooper, KENTUCKY INSTRUCTIONS TO JURIES 1.04 (b), p. 12 [Affirmative Instructions On Theory Of Defense - Sufficiency Of The Evidence] (Anderson, 4th ed. 1999).) The trial court has a duty to instruct on defense theories even when the evidence is offered by the prosecution. (See U.S. v. Hairston (9th Cir. 1995) 64 F3d 491, 493 [prosecution introduced defendant’s pretrial statements as to alibi].)

            f.    Defendant’s Testimony Is Sufficient For Instruction

    The defendant’s testimony, even if "less than convincing," is sufficient to require instruction upon a lesser included offense even without a request, sua sponte. (See People v. Turner (CA 1990) 50 C3d 668, 690 [268 CR 706]; People v. Best (CO 1983) 665 P2d 644, 646; Kansas v. Dixon (KS 1992) 843 P2d 182, 184; State v. Colbert (KS 1989) 769 P2d 1168, 1173.) It follows a fortiori that "disbelief of a defendant's version of the facts is not ... a reason for rejecting a requested instruction [since] it is the jury's function to weigh the evidence and determine credibility." (People v. Sullivan (CA 1989) 215 CA3d 1446, 1452 [264 CR 284]; see also People v. Jeffers (CA 1996) 41 CA4th 917, 924 [49 CR2d 86]; People v. Phillips (IL 1989) 541 NE2d 1298, 1305; Hunter v. State (TX 1983) 647 SW2d 657, 658.)

            g.    Defendant’s Testimony Is Not Necessary For An Instruction On A Defense Theory

    Often the availability of an instruction on a defense is measured by the affirmative evidence of that defense presented by the defendant. However, the principle is well recognized that intent may be inferred from the surrounding circumstances. (See Morissette v. U.S. (1952) 342 US 246, 276 [72 SCt 240, 96 LEd 288]; State v. Tomasko (CT 1996) 681 A2d 922, 926; LaFave & Scott Substantive Wharton’s Criminal Law (West 1986) § 3.5(f); MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS, MPJI-Cr 3:31 [Proof Of Intent] (Micpel, 1999); 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 2.08 [Inferring Required Mental State] (1991); see also O'Malley, Grenig & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 14.13 [Failure To Follow A Lawful Order Of The Court] (West, 5th ed. 2000).) Accordingly, whether the defendant had the required subjective mental state for a particular defense may be inferred from the circumstances even when no affirmative defense evidence has been presented.

   6.    Consider Techniques For Increasing The Effectiveness Of The Instruction Request Presentation

As with any other important adversarial proceeding, technique and strategic planning can help achieve better results at the jury instruction conference. Here are some ideas:

            a.   Make Oral Argument On Important Issues

    Given the bias in favor of the standard pattern instructions it is unlikely that the judge will agree to modify or supplement a pattern instruction without persuasive oral argument on the issue.

            b.    Each Instructional Issue Should Be A Separate Request

    In some jurisdictions, the denial of a requested instruction is proper so long as any portion of the instruction is incorrect. (See Wharton’s Criminal Procedure (West, 13th ed. 1989) §§ 465, pp. 16-17; see also Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS I(A)(2) [Motions-Severance Of Portions Of Defendant’s Requested Instructions] (South Carolina CLE, 1994).) Accordingly, there may be a danger that an instruction with multiple legal propositions may be properly refused if any single one of those propositions is invalid. (But see Section 6d, below.)

    To avoid this risk, and to focus your arguments, each instructional issue should be submitted as a separate legal proposition.

            c.    Have Alternate Or Fall Back Positions

    Like any other phase of litigation, jury instructions require that tactical decisions be made. "Where existing doctrine is clear and well grounded, the process of drafting proposed instructions requires only careful research and clear, precise writing. Where doctrine is unclear or where there is reason to question its current validity, criminal defense attorneys will want to request instructions that resolve questions in favor of the defense. Implementing this approach may require a tactical choice between requesting the instructions most favorable to defendant or requesting an instruction which is not as favorable but is more likely to be accepted, either at trial or on appeal." (Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS Introduction (B)(2)(b)(3) [Tactical Decisions] (South Carolina CLE, 1994).) A useful approach in such circumstances is to request the most favorable instruction and also submit (or hold in reserve) the less favorable instruction as an alternative for use if the more favorable request is denied. (Ibid..)

    For example, a standard instruction dealing with the testimony of the defendant might invite the jury to conclude that his "vital interest in the outcome of the case" may cause the defendant not to tell the truth. A viable fall-back position for the defense attorney who fails to convince the judge that the instruction ought not to be given at all (or that it is adequately covered by the general instruction on credibility of witnesses), is that the court should omit the word "vital" from the phrase "vital interest in the outcome of the case." (See BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) §§ 131.101[6][d].)

            d.    If An Instruction Is Denied As Incorrect, Argue That The Court Has A Duty To Correct It

    A number of jurisdictions recognize the judge’s duty to correct defective instruction requests arising from the trial court's ultimate responsibilities to assure that the jury is correctly instructed. (E.g., People v. Fudge (CA 1994) 7 C4th 1075, 1110 [31 CR2d 321] [judge must tailor instruction to conform with law rather than deny it outright]; State v. Sawyer (HI 1998) 966 P2d 637, 642 [trial court has the duty either to correct any defects or to fashion its own instructions]; Bailey v. Commonwealth (VA 2000) 529 SE2d 570, 584-85 [when a principle of law is materially vital to a defendant, it is reversible error for the trial court to fail to correct a defective instruction or verdict form when the error is patent or the subject of a proper objection even if the defendant fails to proffer alternative instructions or verdict forms]; State v. Lambert (WV 1984) 312 SE2d 311 [ultimate responsibility to ensure that jury is correctly instructed in criminal cases rests with the trial court].)

    This duty may require the trial court to correct or tailor an instruction to the particular facts of the case even though the instruction submitted by the defense was incorrect. (See People v. Stewart (CA 1976) 16 C3d 133, 140 [127 CR 117]; see also Kass v. Great Coastal Express, Inc. (NJ 1996) 676 A2d 1099, 1107 [because request as formulated by plaintiff omitted the standard of proof, the judge had the responsibility to determine the applicable standard of proof]; People v. Parsons (CO 1980) 610 P2d 93, 94; State v. Bunce (NM 1993) 861 P2d 965 [inadequate defense request on mistake of fact did not relieve trial court of obligation to correctly instruct on this defense theory]; Williams v. State (TX 1982) 630 SW2d 640, 643 [although a specially requested charge may be defective, it still may serve to call the court’s attention to the need to charge on a defensive issue]; Morse v. Commonwealth (VA 1994) 440 SE2d 145 ["Trial court should have prepared its own instruction or required counsel to submit a new instruction that correctly defined the defense"]; State v. Dellinger (VA 1987) 358 SE2d 826 [failure of defense counsel to offer a sexual abuse instruction was such plain error the trial court should have intervened to avoid prejudice to the defendant].)

    In short, "[w]hen the defendant submits a theory of the case instruction the trial court is responsible for making the necessary alterations to the instruction, assuming arguendo that the theory on the whole was legally sound and that [defendant] presented sufficient evidence to justify the instruction." (U.S. v. Newcomb (6th Cir. 1993) 6 F3d 1129, 1132 [trial court erred in failing to correct defendant’s defective instruction on necessity].)

    7.    Conclusion

    The foregoing are only a few examples of strategies and techniques which can be employed when trying to obtain modified or supplemented pattern instructions. By using these and other strategies counsel can be an effective advocate in the jury instruction arena notwithstanding the entrenchment of the standard pattern instructions.

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