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1.4 Proven Strategies For Successful Jury Instruction Advocacy Beyond The Pattern Instructions

    1.4.1 Consider Instructions Early; Lay The Groundwork For The Instruction Before And During Trial
    1.4.2 Review The Pattern Instructions Critically And Skeptically
    1.4.3 Use Other Resources To Find Issues Not Addressed In The Pattern Instructions
    1.4.4 Understand And Argue The Rationale And Legal Underpinnings Of The Issue
    1.4.5 Seek Preliminary Instructions
    1.4.6 Model Proposed Instructions On Published Opinions
    1.4.7 Avoid Argumentative Instructions
    1.4.8 Relate The Law To The Facts
    1.4.9 Compare Alternatives And Explain Differences
    1.4.10 Keep Instructions Simple And Short
    1.4.11 Prioritize Your Instruction Requests
    1.4.12 Have Alternative Or Fall Back Positions
    1.4.13 Each Instructional Issue Should Be In A Separate Request
    1.4.14 Strategies For Persuading The Trial Judge To Modify Or Supplement The Pattern Instructions
    1.4.15 Jury Instruction Strategies: Article

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PRACTICE NOTE: "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. (See NCJIC 1.2.6 [Instruction Preparation Helps With The Opening Statement]; see also NCJIC 31.1 [Eyewitness Identification Strategy: Early Preparation And Development Of "Total-Case" Strategy].) 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.)

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PRACTICE NOTE: "Review all pattern instructions critically and skeptically. Do not accept them simply because they are the standard. Do your own research and do not hesitate to redraft a form instruction where appropriate. Even if they are not inaccurate, it is useful to redraft standard instructions to fit the particulars of your case. Standard instructions do not accommodate the "personality" of the individual case. The more realistically instructed is a jury, the more likely they are to understand the case and to accurately evaluate the issues.  Admittedly, judges will almost surely use the standard instructions, ignoring your substitutes. Nonetheless, draft substitutes. The drafting process will educate you significantly. ("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: There are numerous resources available which can aid in finding issues not addressed by your pattern instructions. (See e.g., NCJIC  HOW TO USE NCJIC [Publication Information For Cited Materials].) In particular, NCJIC will aid the critical review of any jurisdiction's pattern instructions. Each chapter of NCJIC is designed to highlight issues which may not be adequately addressed, if at all, by the pattern instructions. (See generally, HOW TO USE NCJIC.)

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PRACTICE NOTE: Due to the preference of many judges to rely primarily upon the standard pattern instructions, counsel must be prepared to argue persuasively in favor of any nonpattern instructions. It is rarely sufficient to simply submit a written request even if it is accompanied with supporting citations. Rather, the written and oral argument in favor of an instruction must explain why the standard instruction is not sufficient and how the proposed instruction will cure the insufficiency. This requires counsel to have a clear understanding of the rationale for the instruction so that the judge can be educated, convinced, and persuaded, as to the need for the instruction.

    Such argument should also include any federal constitutional basis for the instruction. (See NCJIC 299.1.2 [Reasons For Federalizing Jury Instruction Requests]; see also NCJIC Chapter 300 [Substantive Federal Constitutional Claims Relevant To Jury Instruction].)

    The NCJIC  points and authorities in support of sample instructions include links to federalizing language and authorities which may help to raise and preserve federal constitutional issues.

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PRACTICE NOTE: Judge Kolenda makes the following recommendation:

"Submit preliminary instructions and press the trial court to use them. Instructions at the end of trial are far less useful than instructions before trial. Many jurors have said so. It does not do much good to tell a jury, days after they have heard some information, that that information is not evidence to be considered by them or is evidence to be considered by them, or to tell them what are the issues to be decided. Not having known that when the evidence and argument were presented, the jury did not receive either with an awareness of their significance. If most cases are decided early, quality preliminary instructions are crucial...[p]reliminary instructions give counsel their greatest opportunity to mold the instructions to fit the case and educate the jury."

("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: The pertinent rule, the cases, and the treatises all say that instructions are to be written in the vernacular, not in the language of appellate decisions. (See Aikin v. Weckerly (MI 1870) 19 Mich 482, 500-501; and Kimball & Austin Mfg. Co. v. Vroman (MI 1877) 35 Mich 310, 330; see also NCJIC 5.2.6 [Instructions Approved By The Reviewing Court].) "If the courts would listen to what they write, that would be a good rule to follow. Unfortunately, the best hope of getting different instructions accepted is to model them on published decisions. In that way, you are not asking a court to do anything other than read the law, which is something judges are comfortable doing. Accordingly, draft your instructions around the decisions, although do your best to avoid jargon and legalese. After all, you want the instructions to be used." ("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: "Avoid argumentative instructions. When certain points of law favor your opponent, put them in. That way, your instructions have credibility. The law is seldom all one-sided in any case, so judges virtually presume that one-sided instructions are inaccurate." ("Jury Instructions: A Judicial Perspective," by Hon. Dennis C. Kolenda, Circuit Judge, Grand Rapids, Michigan [Article Bank # A-81].)

    "[M]uch of the court’s resistance to tailored instructions can be overcome by good draftsmanship that strips out the slant and argumentative nature. For example, rather than an instruction on the weaknesses of eyewitness testimony that zeroes in on the complaining witness, one could be submitted that invites the jury’s attention to the weaknesses of all eyewitnesses; rather than an instruction that refers to the 'fact' that the decedent possessed a knife, reference could be made to the 'evidence that was admitted' regarding the possession. [Citation.]" (BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) § 131.101[6][d].)

    See also NCJIC 6.1 [Permissive Inference As Improper Comment On Evidence].

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PRACTICE NOTE: Relate the applicable law to the theory of your case in a fair manner. (See NCJIC 3.3.2 [Duty To Give Requested Defense Theory Or Pinpoint Defense Instructions]; see also NCJIC 256.6.2.4 [Failure To Request Instruction Pinpointing Intoxication And Mental State As Ineffective Counsel]; Hill v. Harbor Steel & Supply Co. (MI 1965) 132 NW2d 54, 60; and In re Wood's Estate (MI 1965) 132 NW2d 35, 45.) "Abstract instructions are difficult for lawyers to understand. They probably make no sense whatsoever to juries. Juries are not being asked to engage in jurisprudential discourses. They are being asked to decide a specific case by applying the law to the particulars of that case. Help them by focusing the law on the case." ("Jury Instructions: A Judicial Perspective," by Hon. Dennis C. Kolenda, Circuit Judge, Grand Rapids, Michigan [Article Bank # A-81].)

   See also NCJIC 3.2.5 [Sua Sponte Duty To Instruct On Defense Theory Supported By Substantial Evidence].

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PRACTICE NOTE: When a jury is being given several alternatives, e.g., multiple counts in civil cases, or lesser-included offenses in criminal cases, counsel may wish to propose instructions which explicitly compare the alternatives and explain differences. (See NCJIC 270.4.8 [Definition Of Lesser Offense Should Focus On Distinction Between Greater And Lesser Offenses].) "When several complex principles are stated correctly, but without a comparison which spells out the differences between them, the effect of the court's silence on the differences can be to obscure them and to leave the jury at liberty to speculate. ... Always use as your guiding principle that juries are not likely to know what they are not explicitly told. Because jurors are not lawyers, they cannot be expected to deduce anything about the law." ("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: "Keep all instructions as simple as possible and as short as possible. Remember that your perspective is much, much different than the jury's. You are schooled in the law. Jurors know nothing about the law, save what they remember from civics class, what they have heard on television, and what they pick up on the street, all of which are probably wrong. Also, you know the case in and out, or should know it that well. Be careful the instructions do not presume things you know, but the jury does not. But, don't be terse to the point of being uninformative. To comprehend, jurors need some repetition, examples, etc." ("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: Tactical decisions must be made in terms of which and how many instructions to request. "Trial judges face important demands on their time and will be reluctant to allocate time to review an excessively large number of requests. Consequently, defense counsel should focus on the instructions that are likely to be both important and controversial." (Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS Introduction (B)(2)(b)(3) [Tactical Decisions] (South Carolina CLE, 1994).)

    On the other hand, NCJIC subscribers have reported success in using the strategy of submitting a large number of instructions, many of which will be rejected, in anticipation of getting a few targeted instructions accepted in the exchange.

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PRACTICE NOTE: 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. (Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS Introduction (B)(2)(b)(3) [Tactical Decisions] (South Carolina CLE, 1994).)

    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 him 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." (BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) § 131.101[6][d].)

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PRACTICE NOTE: 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 NCJIC 3.3.3 [Duty To Correct Defects].)

    To avoid this risk, the instructions should be submitted as separate legal propositions or the defense could submit a motion requesting severance of any legal proposition rejected by the trial judge. (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).)

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 1 - CHAPTER 1

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 1 - CHAPTER 1