Article Bank # A-92 (Re: NCJIC 1.3.10 [Limitation Of Pattern Instructions: Article].)

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In this regular feature Tom Lundy, Chief Editor of  juryinstruction.com— a jury instruction practice manual and CD-ROM for criminal defense attorneys — discusses selected criminal jury instruction issues. If you have any questions or comments about material discussed in this issue, or if you would like more information about , please call (800) 339-2483; (707) 545-3312 or FAX (707) 545-4642 or go to the juryinstruction.com "Contact " page. The article below was adapted in part from Chapter 1 "Strategies For Making Jury Instructions Part Of The Adversarial Process."

   [This is the first 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.]

    1.   The Advent Of Pattern Jury Instructions

    Pattern instructions were developed primarily for reasons of judicial efficiency. Despite the lip-service given to concerns of clarity and juror understanding, in practice the standard instructions serve the primary purpose of allowing the judge and attorneys to spend less time working on jury instructions. "Pattern instructions, widely available today, are a fairly recent phenomenon, evolving from the desire of judges to dispense with the need to reinvent the wheel with each set of jury instructions. In addition to the perceived savings in time, impetus for the development of pattern instructions was provided by the belief that pattern instructions would be less partial, lead to uniformity in the treatment of cases, result in fewer appeals, and aid in juror comprehension of instructions. The grandfather of pattern instruction projects is widely regarded as the 1938 California Book of Approved Jury Instructions (BAJI) for civil cases, which was followed by a counterpart for criminal cases in 1945. The lead of California was picked up quickly by other states, as well as federal courts, so that the jurisdiction without pattern instructions is a nearly extinct animal." (BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) §131.101[6][c]; see also generally, Nieland, Pattern Jury Instructions: A Critical Look at a Modern Movement to Improve the Jury System (1979).)

    2.    The Existence Of Pattern Instructions Promotes "Jury Instruction By Number"

    The huge demands which criminal litigation imposes on both the bench and bar has led to growing acceptance of, and reliance on, standard pattern instructions as a way of saving time and effort. In fact, pattern instructions often preempt the adversarial process with regard to jury instructions. "The proliferation of pattern instructions has lulled many judges and lawyers into a sense of complacency, pre-instruction discussions degenerating into an exercise of checking off numbers on a list." (BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) § 131.101; see also "Jury Instructions: A Judicial Perspective," by Hon. Dennis C. Kolenda, Circuit Judge, Grand Rapids, Michigan. [To read this article, go to this article at article.htm and click on it.]

    3.    Excessive Reliance On Pattern Jury Instructions Prevents The Jury From Fulfilling 
           Its Constitutional Duties

    The standard pattern instructions, no matter how respected and established, may not alone be sufficient to assure that the jury will "accomplish its constitutionally mandated purpose." (McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 836.) "Jury instructions are only judge-made attempts to recast the words of statutes and the elements of crimes into words in terms comprehensible to the lay person. The texts of 'standard' jury instructions are not debated and hammered out by legislators, but by ad hoc committees of lawyers and judges. Jury instructions do not come down from any mountain or rise up from any sea. Their precise wording, although extremely useful, is not blessed with any special precedential or binding authority. This description does not denigrate their value, it simply places them in the niche where they belong." (Id. at 840.)

    "While ... [pattern instructions] may be useful for the purpose of supplying guidelines to the trial courts, we believe that instructions to the jury must be molded to fit the factual context of each case. An instruction approved in one case, or indeed in many similar cases, may not be sufficient for the particular case at bar if the comparative circumstances are not identical or substantially similar." (U.S. v. Barber (3rd Cir. 1971) 442 F2d 517, 527-8.) One of the virtues of pattern instructions is at the same time one of its greatest vices—by definition, the universal instruction lacks the individual tailoring that makes it truly fit the facts of a case. (BNA Criminal Practice Manual (Pike & Fisher Inc. 1999), § 131.101[6][c] "Pattern Drafted Instructions"; (UNIFORM CRIMINAL JURY INSTRUCTIONS (OREGON), UCrJI User’s Guide I-C (G-3, 10/94)) [Criminal Jury Instructions User’s Guide] (Oregon State Bar, 1998 ), ["One disadvantage of the uniform jury instructions is that court and counsel tend to rely too much on them"].) Moreover, pattern instructions will always be of limited value to the advocate because they are typically "the result of compromise" -- a necessary outgrowth of committee dynamics -- and normally "no provision for the dissenting viewpoint is available." (REVISED ARIZONA JURY INSTRUCTIONS (CRIMINAL) RAJI p. iii. [Important Notice] (CLE State Bar of Arizona, 1996).)

    Pattern instructions are also of limited value in identifying or resolving issues which have not been specifically addressed by the courts or legislature. (See e.g., SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL Introductory Committee Note [Committee-Note] (State Bar of South Dakota, 1996) ["The Committee urges that particular caution be exercised in the use of these instructions involving matters of law which have not been passed upon by the South Dakota Supreme Court. The reference material cited with such instructions may show divisions of authority, requiring careful study to anticipate the rule which our Supreme Court may follow"].)

    The need for criminal practitioners to look beyond the pattern instructions is widely recognized. "Counsel should closely review standard jury instructions before they are given and aggressively move to supplement such instructions to preserve the accused’s right to propound his or her theory of defense." (McSorley, Portable Guide to Federal Conspiracy Law - Developing Strategies for Criminal and Civil Cases (ABA, 1996) p. 185.) "The value of defense-prepared and defense-submitted jury instructions should not be underestimated. Failing to aggressively to investigate and pursue theory of defense instructions simply cedes the playing field to the government and may forfeit valuable appellate rights by not preserving the record. ... Examples abound where persistent defense counsel, by aggressively pursuing theory of defense instructions, have saved the day either in obtaining a favorable verdict or by setting the stage for an appeal that overturned the conviction." (Id. at 188.)

    The rote recitation of general form instructions will not always suffice to fulfill the court's instructional obligations. (People v. Thompkins (CA 1987) 195 CA3d 244, 250 [240 CR 516], see also U.S. v. Lofton (10th Cir. 1985) 776 F2d 918, 922; Wright v. U.S. (DC Cir. 1957) 250 F2d 4, 11.) The court "should not require a party to rely on abstract generalities ... but should instruct the jury in terms that relate to the particular case before it. [Citation]." (Fish v. L.A. Dodgers Baseball Club (CA 1976) 56 CA3d 620, 642 [128 CR 807]; see also People v. Rollo (CA 1990) 20 C3d 109, 123 fn 6 [141 CR 177].)

    Hence, trial courts have been warned to "examine [pattern instructions] carefully before using them to ensure their accuracy and appropriateness to the case at hand." (People v. Petrella (MI 1985) 380 NW2d 11, 36; see also People v. Anderson (MI 1988) 421 NW2d 200, 207.)

    "[T]he fact that pattern jury instructions are available should not preclude a judge from modifying or supplementing a pattern instruction to suit the particular needs of an individual case .... The thrust of such objection goes not to the use of pattern instructions themselves, but rather to the practice of rote reliance upon such instructions without modification, a practice that may develop simply by virtue of their existence .... [P]attern instructions should be modified or supplemented by the court when necessary to fit the particular facts of a case." (American Bar Association, ABA Standards for Criminal Justice Discovery and Trial by Jury (ABA, 3rd ed., 1996) Standard 15-4.4 pp. 236-237.)

    "The lesson is that a Circuit’s pattern jury instructions are certainly helpful, but they do not always adequately cover all situations. Blind adherence to them may deprive an accused of a viable defense." (McSorley, Portable Guide to Federal Conspiracy Law - Developing Strategies for Criminal and Civil Cases (ABA, 2003) Chapter 7, § O.)

    In many jurisdictions jury instruction committees expressly warn against exclusive or inflexible reliance upon the pattern instructions. Indeed, as the excerpts below explain, the trial judge and attorneys must always be free to modify or supplement the pattern instructions to comport with the circumstances of the individual case.

    "Be careful, however, of the lawyer’s tendency to...copy from a form book...without taking the time to ponder what is appropriate in this case." (1ST CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL [Afterward: How to Draft a Charge] p. 169. (2002).)

    "Many instructions require the giving of additional or accompanying instructions. The Committee has tried to make explicit cross-references wherever possible, but gives no warranty that it has done so exhaustively. In some circumstances, instructions other than or in addition to those referenced may be appropriate." (7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL [Introduction] p. 1 (1999).) "These instructions were drafted based on the most common factual and legal scenarios. The Committee anticipates that changes in the language of the instructions may be appropriate in particular cases." (Ibid.)

    "The instructions in this manual are models. They must be reviewed carefully before used in a particular case. They are not a substitute for the individual research and drafting that may be required in a particular case, nor are they intended to discourage juries from using their own forms and techniques for instructing juries." (9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL p. V [Introduction] (2000); see also McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 840.)

    "As a caveat, let us remind you that each case is somewhat different and forms are written to fit the average case or transaction. Consequently, each case or transaction must be carefully scrutinized to determine which charges will be required to meet the need of the particular case. Of course, we have not attempted to include every charge for every case. Also we wish to remind you [of] the importance of keeping abreast of the changing statutory and court interpretations. One should always check... [the] applicable statutes and intervening appellate decisions before relying on any charge." (ALABAMA PATTERN JURY INSTRUCTIONS - CRIMINAL Preface pp. i-ii.) [Preface] (Alabama Bar ICLE, 3rd ed. 1994).)

    "Realistically, pattern instructions cannot encompass all possible scenarios. Judges must adapt pattern charges to fit the cases before them. ... [o]ne of a judge’s most important functions is to instruct a jury. Pattern instructions assist the judge in this task, but they do not eliminate the need for much thought on the part of the judge. The committee recommends both the careful selection and use of these instructions." (ALABAMA PATTERN JURY INSTRUCTIONS - CRIMINAL Introduction p. iii. [Introduction] (Alabama Bar ICLE, 3rd ed. 1994).)

    Pattern instructions are of limited value to the advocate because they are typically "the result of compromise" -- a necessary outgrowth of committee dynamics -- and normally "no provision for the dissenting viewpoint is available." (REVISED ARIZONA JURY INSTRUCTIONS (CRIMINAL) RAJI p. iii. [Important Notice] (CLE State Bar of Arizona, 1996).)

    "...[J]udges, prosecutors and defense attorneys in California should "understand both [the] value of CALJIC recommendations, and their limitations." (McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 841; see also California Rules of Court, Appendix, Div. § I, Section 5 [no preference to CALJIC instructions].)

    "No approval of these instructions by the Court could relieve the trial judge of [the] responsibility under the law to charge the jury properly and correctly in each case as it comes before him. This order is not to be construed as any intrusion on that responsibility of the trial judges." (FLORIDA STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES p. x.) [Order of Supreme Court Adopting Pattern Instructions] (Florida Bar, 1981).)

    "Obviously, no suggested charges can cover every situation and the task will ever belong to the trial judge to tailor the charged material to the case on trial." (GEORGIA SUGGESTED PATTERN JURY INSTRUCTIONS - CRIMINAL CASES, p. vii.) [Preface] (Carl Vinson Institute of Government, University of Georgia, 2nd ed. 1999).)

    "These instructions are not intended to provide jury instructions which are applicable without change in all cases. Instead, they will provide judges and lawyers with models of clear, concise, accurate, and impartial instructions which are understandable to the average juror. They can be adapted for use in particular cases or used as a guide for tailoring instructions." (IOWA CRIMINAL JURY INSTRUCTIONS Introduction.) [Introduction] (Iowa State Bar Association, 1997).)

    "The instructions and brief comments are not, however, a substitute for critical lawyering skills." (Joseph & LaMonica, LOUISIANA CIVIL LAW TREATISE CRIMINAL JURY INSTRUCTIONS Preface p. vii.) [Preface] (West, 1994).)

    The role of pattern jury instructions should be "to provide a uniform basis of experience, but to in no way suggest a mandate, with regard to dealing with juries. Each case is unique. Jury procedures and instructions must be adjusted to the specific facts and circumstances of the case. Further, judges themselves have different styles of instructing the jury and different word usages with which they are comfortable." (Alexander, MAINE JURY INSTRUCTIONS MANUAL p. xiii. [Preface To The Third Edition] (Lexis, 1999).) "While representative jury instructions often are helpful, it is neither sufficient nor advisable to rely solely on such an instruction.... [I]nstructions should be developed in a manner that explains the law to the jury in the context of the individual case." (State v. Ashley (ME 1995) 666 A2d 103, 107.)

    "We hope that this text will relieve judges and lawyers of the burden of drafting basic instructions. However, there is still the need to draft instructions, or modify instructions to accommodate the circumstances of a particular case." (MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS, MPJI-Cr Intro. p. xi.) [Introduction] (Micpel, 1999).)

    "For the really important jury instructions in a case, pattern jury instructions should be the beginning rather than the end of the process of preparing the instructions....[t]he pattern jury instructions and commentary will be of maximum value as a basis for instructing a jury when used as a guide to what legal principles should be propounded, an aid in draftsmanship, and a source to facilitate further legal research." (Aaronson, MARYLAND CRIMINAL JURY INSTRUCTIONS AND COMMENTARY Introduction p. xv.) [Introduction To 1999 Supplement] (Lexis, 2nd ed. 1988).)

    NORTH DAKOTA PATTERN JURY INSTRUCTIONS, NDJI-Criminal Introduction:; General Directions, p. 5 [General Directions For Use 1(b); 1(c)] (State Bar Association of North Dakota, 1985) [instructions are not all inclusive and do not cover every possible legal principle even as to the subjects which are covered; instructions must be modified in light of new statutes and appellate decisions; parties are entitled to instructions as to their theories of the case].

    "The uniform instructions do not cover all the possible issues that may arise at trial and do not have the force and effect of a statute. There is no statutory requirement that instructions be given in uniform jury instruction form. The uniform instructions serve only as a framework for building a set of instructions. One disadvantage of the uniform jury instructions is that court and counsel tend to rely too much on them. Special instructions must often be drafted for situations not contemplated by the uniform instructions." (UNIFORM CRIMINAL JURY INSTRUCTIONS (OREGON), UCrJI User’s Guide I-C (G-3, 10/94) [Criminal Jury Instructions User’s Guide] (Oregon State Bar, 1998).)

    "[D]rafting proposed instructions is not a mechanical process even if pattern jury instructions are available." (Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS Introduction (C)(1) [Basic Framework For All Trials] (South Carolina CLE, 1994).) "Even where the law is clear and settled, pattern or form jury charges often require rephrasing in order to apply them to the circumstances of a particular case." (Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS Introduction, (B)(2)(b)(2) [Application To Circumstances Of Case] (South Carolina CLE, 1994).) "Refusal by a trial judge to grant a request to tailor the charge to the facts of a specific case has resulted in reversals of guilty verdicts." (Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS Introduction, (B)(2)(b)(2)) [Application To Circumstances Of Case] (South Carolina CLE, 1994); see e.g., State v. Fuller (SC 1989) 377 SE2d 328, 330-31 [reversible error to refuse requests to supplement standard charge on self defense; trial judge should "consider the facts and circumstances of the case at bar in order to fashion an appropriate charge"]; see also State v. Smith (SC 1991) 403 SE2d 162, 164 ["It is not always sufficient for a judge to simply open a charge book and read a generic statement of the law to a jury, no matter how correct the statement may be in the abstract"].)

    (SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL Committee Note [Committee Note] (State Bar of South Dakota, 1996) [It should be remembered that these instructions are patterns, and must be altered as required for any specific case"].)

    "The principle purpose for which pattern jury instructions exist is to help judges communicate more effectively with juries. As the term "pattern" suggests, however, they are not intended to provide instructions applicable without change to every case. Instead, they are meant to provide judges and lawyers with models of instructions designed to aid in juror comprehension. These instructions are not designed to serve as a legal treatise, but rather, to improve the quality of communication with juries." (TENNESSEE PATTERN INSTRUCTIONS - CRIMINAL, T.P.I.-Crim Preface, p. vii [Preface] (West, 5th ed. 1999).)

    "The pattern jury charge is a work of fiction, although based on cases. The reader, therefore, must adapt it to suit his or her particular case and needs. The pattern cannot encompass all statutory alternatives and fact situations." (McClung, & Carpenter, TEXAS CRIMINAL JURY CHARGES [Preface] p. iii (James Publishing, 2000).)

    In Virginia, a proposed jury instruction submitted by a party, which constitutes an accurate statement of the law applicable to the case, must not be rejected solely for its nonconformance with model jury instructions. (VIRGINIA MODEL JURY INSTRUCTIONS - CRIMINAL Chapter 1(1) [Role Of Instructions Generally] (Lexis, 1999).)

    "The user...should consider each instruction a model to be examined carefully before use for the purpose of determining what modifications are necessitated by the facts of the particular case. In addition, the effect of the instructions upon each other must be considered." (WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal [Introduction] p. xi (University of Wisconsin Law School, 1999).)

    Pattern or model jury instructions "represent only the lawyer's starting point for creating instructions that reflect the particular facts of each case." (CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA [Introduction to 1996 Supplement] (Bar Association of the District of Columbia, 4th ed. 1993).)

    Some jurisdictions designate the pattern instructions as "mandatory" which requires the court to give the applicable pattern instruction unless it would be erroneous to do so. (See, e.g., Ill SupCtR 451(a) (Ill RevStat Ch. 110A) ["Whenever Illinois Pattern Instructions in Criminal Cases (IPI-Criminal) contains an instruction applicable in a criminal case, giving due consideration to the facts and the governing law, and the court determines that the jury should be instructed on the subject, the IPI-Criminal instruction shall be used, unless the court determines that it does not accurately state the law"].) However, "[e]ven in the mandatory jurisdictions, the instructions should not be regarded as sacrosanct. A pattern instruction can be attacked either as an incorrect statement of law or as applied in a particular case." (BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) § 131.101[6][c].)

    Moreover, if the pattern instructions do not address an issue, nonpattern supplemental instructions may be appropriate: "Still, IPI Criminal does not provide all the answers... the trial lawyer should consider drafting nonpattern instructions." (ILLINOIS PATTERN JURY INSTRUCTIONS - CRIMINAL, IPI-Criminal 3d [Preface to 4th Ed.] p. xi (West, 4th ed. 2000).)

    The trial judge is vested with broad discretionary powers as to decisions which are best made by an arbitrator who has heard the evidence and observed the witnesses. It is interesting, therefore, that judges are allowed to abdicate their discretionary powers with regard to jury instructions, while in many other areas, from the admission of evidence to sentencing, judicial discretion is jealously coveted. Why then shouldn’t these discretionary powers be exercised on a case-by-case basis with respect to jury instructions which are manifestly controlled by the specific evidence and witnesses?

    In point of fact, the trial court should and does have broad discretion regarding instructions. (See §§ 5 and 6, above.) "The trial judge has the power and duty to control the manner in which the trial is conducted. In so doing, he is acting within a judicial discretion, and his rulings will not be disturbed unless there has been an abuse of such discretion. By virtue of this control, the judge seeks to obtain a trial which is orderly, fair, and impartial, and one at which the truth is discovered, and equal justice administered." [Footnotes omitted.] (Wharton’s Criminal Procedure (West, 13th ed. 1989) § 435.) This inherent power and discretion is applicable to decisions regarding jury instructions. (See e.g., State v. Nuetzel (HI 1980) 606 P2d 920, 931 [instructions should be "flexible with wide discretion vested in the trial judge to clarify the terms of the definition"].) Hence, "[e]ven if [a pattern] instruction accurately states the law and is applicable, an experienced trial judge, ‘in the exercise of informed discretion,’ can conclude that it may confuse the jurors or distract them from the material issues in the case, or prolong the instructions out of proportion to the educational benefit to the jurors, unduly emphasize a potentially prejudicial aspect of the evidence, or simply add nothing to the ability of the jurors to decide the case intelligently, fairly, and impartially. ("Jury Instructions: A Judicial Perspective," by Hon. Dennis C. Kolenda, Circuit Judge, Grand Rapids, Michigan [citing Johnson v. Corbet (MI 1985) 377 NW2d 713, 723-24.) "The conferring of such discretion is an invitation to counsel to massage the [pattern] to fit the particular case." (Kolenda, supra.) [To read this article, go to this article at article.htm and click on it.]

    In sum, even if the pattern instructions have been "approved" by a judicial committee, the legislature, or even a reviewing court, the trial court should retain discretion to decide which instructions are needed in each individual case:

    "No approval of these instructions by the Court could relieve the trial judge of [the] responsibility under the law to charge the jury properly and correctly in each case as it comes before him. This order is not to be construed as any intrusion on that responsibility of the trial judges." (FLORIDA STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES p. x.) [Order of Supreme Court Adopting Pattern Instructions] (Florida Bar, 1981).)

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