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1.2 Jury Instruction Advocacy Is Important At Every Stage Of The Criminal Process

    1.2.1 Instruction Preparation Helps With Pre-Trial Strategy And Investigation
    1.2.2 Instruction Preparation Helps With Plea Bargaining
    1.2.3 Instruction Preparation Helps With Pre-Trial Motions
    1.2.4 Pre-Trial Rulings On Jury Instruction Issues Can Help With Trial Strategy And Make A Better Appellate Record
    1.2.5 Instruction Preparation Helps With Evidentiary Issues
    1.2.6 Instruction Preparation Helps With The Opening Statement
    1.2.7 Instruction Preparation Helps With Argument Or Summation To The Jury
    1.2.8 Instruction Preparation Helps With Arguing Points Of Law Not In The Instructions
    1.2.9 Instruction Preparation Helps To Preserve Issues For Appeal

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PRACTICE NOTE: It is never too early to review and consider jury instructions. (See Larry S. Pozner, "Lessons Learned," The Champion (NACDL 6/99) p. 7 ["Preparation is still the greatest technique for winning"]; see also G. Fred Metos, "Making a Record for Appeal," The Champion (NACDL 5/99) p. 51 [discussing the importance of early preparation and its role in arguing for defense jury instructions and against prosecution proposed instructions].) After all, jury instructions are founded upon the law and it is the law which governs the case. "Marshalling and selecting the evidence in preparation for trial cannot intelligently and effectively be done in a vacuum insulated from governing legal principles. And the bedrock legal principles which govern a criminal trial are the elements of the charged offense as spelled out in the statute. As the elements are elementary, so also is it elementary that the jury cannot possibly determine the material facts without reference to the elements of the charged offense upon which, perforce, it must be fully and accurately instructed." (People v. Martin UNPUBLISHED (C012734) p. 9 fn 5.) Hence, even before developing a trial or investigation strategy, counsel should be familiar with the appropriate jury instructions and any issues or developments relating thereto. (See Riordan and Gillette, California Criminal Law (CEB, 1986), § 32.3, p. 671.)

    As observed by Justice Dennis C. Kolenda in an address to the Criminal Defense Attorneys of Michigan:

[Attorneys should] research and draft proposed jury instructions very early in trial preparation. Most attorneys draft them as the last step in trial preparation. Many do nothing more than write out a list of [the standard pattern instruction] numbers. They should do much more, and they should do it very early. Because instructions tell juries what has to be proven and what is appropriate evidence to prove it, researching them early can reveal to trial counsel what has to be proven and by whom, what has to be defended and by whom, and what is an appropriate way to do either or both. Drafting instructions also helps counsel develop a theme for trial. The more closely trial presentation parallels what will be in the instructions, the more comprehensible is that presentation and the more likely it is that the jury will find that presentation to satisfy what the judge's instructions say must be proven. At a minimum, early preparation avoids the discovery just a few days before trial, when it usually is too late to do anything about it, that counsel has missed some key element, that there is something which must be proven at which no discovery has been directed, and/or that there is some defense available to the opponent for which no response can be crafted quickly.

("Jury Instructions: A Judicial Perspective," by Hon. Dennis C. Kolenda, Circuit Judge, Grand Rapids, Michigan. [To read the Kolenda article, click here. [Article Bank # A-81].)

"Regardless of the fact that the requests for instructions may not actually be lodged until the end of the evidence, the advance work for the requests must begin early in the preparation of the case. Research into entitlement to instructions is to a great extent coterminous with the necessary research for presentation of the case, and conversely, the instructions requested are governed by what evidence has been presented and what arguments are planned for closing. For instance, in planning its requests, the defense should take into consideration the government’s theory (e.g., aiding and abetting, felony murder), the factual elements required, the areas in which the government might fall short, vulnerable areas of the witnesses, and the defense relied upon.

The instructions should be designed to echo these theories, e.g., if the theory is that the chief prosecution witness is a liar, the requested instruction should draw the jury’s attention to his prior convictions and prior inconsistent statements. If the government brought in evidence of defendant’s use of an alias, an instruction should be crafted to inform the jury that the use of an alias is not illegal, thereby defusing the power of this evidence. [Citation.] As far as is lawyerly possible, the appropriate instructions should be anticipated, rather than leaving the compilation of requests and the drafting of special instructions to the inevitably hectic end-of-trial phase." (BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) § 131.101[6][a].)

    "Probably the best time for counsel to draw tentative drafts of instructions is when the case is being prepared for trial, and many lawyers do this as early as the pleading stage. The law that will govern the case will act as a guide during discovery, and in the preparation of the evidence to be presented at trial. Well-prepared and documented instructions may act as a substitute for a trial brief in some jurisdictions, or will be used to supplement the points made in a trial brief. Indeed, the trial brief and proposed instructions serve a similar purpose." (O'Malley, Grenig & Lee, FEDERAL JURY PRACTICE INSTRUCTIONS 7.02 [Preparation Of Instructions] p. 458.)

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PRACTICE NOTE: "Pretrial preparation is key." (Hrones & Czar, Criminal Practice Handbook (Lexis, 1995) § 10-2(a), p. 394.) "It cannot be overly emphasized how important aggressive discovery and preparation for trial is necessary for effective plea bargaining. The prosecutor must be shown that counsel is prepared to go to trial if necessary and is fully prepared to vigorously contest the government’s case with a reasonable opportunity for obtaining a not-guilty finding." (Ibid.)

    This applies with equal force to jury instruction preparation. Defense theories which can be leveraged into successful plea bargains can be discovered by early jury instruction analysis and the inevitable educating process which results. (See "Jury Instructions: A Judicial Perspective," by Hon. Dennis C. Kolenda, Circuit Judge, Grand Rapids, Michigan [Article Bank # A-81].

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    1.2.3    Instruction Preparation Helps With Pretrial Motions

PRACTICE NOTE: Early jury instruction preparation may help with pretrial motion practice. (See e.g., Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS Introduction (B)(1)(a) [Pretrial Preparation] (South Carolina CLE, 1994) ["preparing detailed instructions early...may indicate that pretrial motions...are in order"].)

    For example, jury instruction issues may be an additional basis for seeking severance of multi-defendant trials. If evidentiary or legal issues are only going to be applicable to one defendant, there may be a danger that the jury will be confused by the complexity inherent in applying different rules to different defendants. Additionally, if there is stronger or more prejudicial evidence as to one defendant which is not admissible against the other defendant, a limiting instruction may be inadequate to preclude the prejudice. (See NCJIC 16.1.6 [Situations Where Cautionary Or Limiting Instructions May Not Cure Prejudice].) However, in a multi-defendant trial, the limiting instruction may be the only alternative available to counsel unless the cases are severed.

    Another jury instruction issue which relates to the need for severance in multi-defendant cases pertains to the cautionary instructions regarding the defendant’s right not to testify. Such an instruction normally should only be given when requested by the defense in recognition of the fact that they may well actually prejudice the defendant. (See NCJIC 18.3.4 [Waiver Of Instruction Regarding The Defendant's Failure To Testify To Avoid Prejudicially Highlighting The Matter].) However, in multi-defendant cases where neither defendant has testified and one defendant requests the instruction and the other doesn't, there is no way to reconcile the interests of both defendants. (See NCJIC 18.3.3 [Whether Instructions Against Drawing Inference From Codefendant's Failure To Testify Should Be Given When Defendants Disagree].)

    In sum, instruction issues, if considered early, may provide additional support for pretrial motions.

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PRACTICE NOTE: "As a general proposition, instructions should not be filed any earlier than absolutely required, as the requests may tip one’s hand, revealing information about evidence and theories. Of course, instructions that are part and parcel of a request to the court to allow certain evidence, e.g., expert testimony on the battered spouse syndrome, are exceptions to this rule." (BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) § 131.101[6][a].)

    "Strategy also enters into the decision of whether to request an instruction or whether to fight an instruction the court intends to impose. For example, a lesser included offense instruction in effect gives the jury an opportunity to compromise, acquitting on the more serious charge and convicting on the lesser, which may or may not be desirable. A reading of the jury’s apparent reaction to the defendant and to the facts as they were laid out may tip the odds in favor of an all-or-nothing gamble, in which event a lesser included offense instruction would be counterproductive." (Ibid.)

    "In some cases, it may be advisable to seek an earlier ruling in order to prepare earlier parts of the defense case. However, it should be remembered that such earlier rulings present the trial judge with problems because the charge may depend upon all the evidence and because time pressures may make it difficult to address instructions before the end of trial. Nevertheless, where a special need exists, counsel can request rulings early in the trial or may file a motion in limine for a pretrial ruling. Where such advance rulings are against the defense, it will probably be necessary to renew the request later in order to preserve error." (Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS Introduction (B)(1)(b) [Pretrial Presentation] (South Carolina CLE, 1994).)

CAVEAT: A possible solution to the problem of tipping the defendant's hand would be to make the motion outside of the presence of the prosecutor (in camera or ex parte). However, any ruling resulting from such a proceeding would likely have to be renewed at a later time when the prosecutor is able to be present.

    See NCJIC 2.5.6 [Sufficiency Of Record On Appeal To Present Instructional Error To Reviewing Court].

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PRACTICE NOTE: Jury instruction advocacy is interwoven with countless evidentiary issues. (See NCJIC Volume 4: Evidence--Issues And Instructions (Ch. 24-42).)

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PRACTICE NOTE: Several studies indicate that approximately 75% of all jurors claim that their ultimate verdict was the same as their evaluation based on the opening statement, such statements are prime contenders for the title of "most important." (See "Jury Instructions: A Judicial Perspective," by Hon. Dennis C. Kolenda, Circuit Judge, Grand Rapids, Michigan [Article Bank # A-81]; see also BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) vol 13, No. 1, 1/13/99, p. 3, quoting McComas ["A high impact opening statement is the necessary foundation upon which reasonable doubts will be built during trial"]; but see NCJIC 16.1.2 [Opening Statements: Strategic Considerations].) Obviously, therefore, early consideration of jury instructions is important so that the most effective defense strategies can be considered in formulating the opening statement strategy. 

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PRACTICE NOTE: Closing argument and jury instruction advocacy are inter-related. One supports the other. (See NCJIC  Chapter 272 [Summation/Closing Argument To Jury].) As explained by Judge Kolenda:

"Weave into your arguments to the jury as much of the actual language of the instructions to be given by the court as you can. However, do not tell the jury that the judge will instruct them thus and so. Just talk to them in the language which you know the judge will use. That way, in the end, when the jury hears the judge instruct them in your words, your credibility is greatly enhanced. Instead of being reminded by the judge that you knew what he or she was going to say, the jury is being told that you know the law, can be trusted on to fairly tell them, and that the judge is in fact agreeing with you, not you with him or her. With any luck, the jurors' natural reaction will be to accept everything else you said. After all, the judge told them that you were correct and can be trusted."

("Jury Instructions: A Judicial Perspective," by Hon. Dennis C. Kolenda, Circuit Judge, Grand Rapids, Michigan [Article Bank # A-81].)

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PRACTICE NOTE: An important spin-off of comprehensive and thoughtful jury instruction preparation is that it may pave the way to arguing important legal points upon which the judge has rejected specific instruction. In cases where jury instruction requests have been rejected, creative use of closing arguing may fill the gap. (See NCJIC  272.3 [Summation/Closing Argument: Use Of Argument To Explain The Law Or Instructions].)

    For example, judges will frequently deny a request because they feel that the request is adequately covered in the standard instructions. In such situations counsel should be permitted to argue the legal point to the jury. "Where defense counsel is unable to persuade the judge to substitute or add the proposed charge, an alternative approach is to use the proposed charge in the closing argument. While this approach does not have the authoritative impact of a judge-given instruction, it does give the jury a perspective that resolves ambiguity or vagueness in favor of the defendant." (Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS Introduction § B(2)(b)(3)(e), p. 17 [Tactical Decisions] (South Carolina CLE, 1994).) Certainly, where the trial judge has indicated that the standard instruction covers the request and has not disagreed with the validity of the requested charge, "there is a good argument that using the proposed charge [instruction] in closing argument does not involve improper argument." (Id. at p. 19.)

    "Trial lawyers can argue the law and its application to the evidence. So long as they accurately state the law they are ordinarily within their rights [citations] [but] ... counsel is bound, in such arguments, by the trial court's determination of the law and is well-advised to acknowledge that the judge will be the one who instructs on the law. It is not proper argument to read from a law book." (State v. Mayes (IA 1980) 286 NW2d 387, 392.)

    "Counsel may, of course, explain propositions of law to the jury if this is reasonably necessary for a proper understanding of the evidence. [Citations.] Counsel does not have the right, however, to project or persist in a mistaken presentation of the controlling legal principles." (State v. Hanly (NJ 1974) 317 A2d 746, 753.)

    "In addressing the jury, counsel must be allowed to select and pursue their own line of argument, their own methods of dealing with the testimony. They may state the principles of law applicable to the case, and may argue such principles, and quote from books in elucidation of their views of the law. This, however, is an argument before the court, and for the court; for the jury are not judges of the law. It is their sworn duty to receive and apply the law as the same is given them in charge by the court... Thus it is the right of counsel under the guidance of the court to discuss the rules of law applicable to different phases of the testimony." (Van Antwerp v. State (AL 1978) 358 So2d 782, 787.)

    Additionally, many standard instructions include an instruction informing the jury that it should disregard any statements of law by counsel during argument which are inconsistent with the judge’s instructions. (See NCJIC 272.3.3 [Jury May Consider Summation/Closing Argument Of Counsel As To Meaning Of Instructions If Not Inconsistent With The Judge’s Instructions].) In the case of argument which clarifies or further explains more general instructions, this standard instruction may be utilized by the jury to accept counsel’s explanation or clarification as having the same force of law as the judge’s instructions.

Annotation. "Counsel's Right In Criminal Prosecution To Argue Law Or To Read Lawbooks To The Jury," 67 ALR2d 245, 276.

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PRACTICE NOTE: While the precise procedures and requirements may vary from jurisdiction to jurisdiction, the following recommendations from the South Carolina CLE Book on Criminal Jury Instructions would be prudent to follow in most situations: "In all cases, in order to insure that any objections to the trial judge’s charge are preserved for appeal, it is important to object before the jury begins deliberations and to do the following:

    (1)    insure that any proposed instructions that are refused are made part of the record;

    (2)    make objections on the record, not simply in chambers (see also NCJIC 2.5.1 [Instruction Conference Should Be On The Record]; NCJIC 2.5.10 [Record Of Bench Conference]);

    (3)    if the objection is made prior to the charge by the trial judge, renew the objection after the charge but before the jury retires;

    (4)    if the judge instructed improperly (including a situation where a proposed charge is omitted or modified), consider whether you want a corrective instruction or a motion for mistrial (or both if your first choice is denied), and make the chosen request before the jury retires for deliberation; and

    (5)    renew the objection in the form of a motion for a new trial if the jury renders a guilty verdict; and 

    (6)    at all points, be specific and give the basis for the requested charge and for objections to the charge by the trial judge." (Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANT'S REQUESTED INSTRUCTIONS Introduction (B)(1)(c) [Preservation Of Error For Appeal] (South Carolina CLE, 1994).)

    See also NCJIC 299.1 [Preserving Federal Constitutional Claims: General Principles].

    See also NCJIC 2.5.6 [Sufficiency Of Record On Appeal To Present Instructional Error To Reviewing Court].

    See also NCJIC 2.5.7 [Making Appellate Record As To Matters Which Cannot Be Recorded By Court Reporter].

    See also NCJIC 295.1.3.1 [Appellate Practice Note: Making A Record Of Impediments To Appellate Review].