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2.11 Right Of Party To Object To Instructions Out Of The Jury's Presence

    2.11.1 Absolute Right Of Defendant To Object Outside The Presence Of The Jury
    2.11.2 Requiring Objection To Instruction In Front Of Jury As Reversible Error

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VOLUME 1 - CHAPTER 2

PRACTICE NOTE: The defendant should have an absolute right to object to jury instructions outside the presence of the jury. Allowing such objection at a bench conference does not suffice and is reversible error. (See e.g., FRCRP 30; United States v. Salinas (5th Cir. 1979) 601 F2d 1279, 1284; U.S. v. Sloan (10th Cir. 1987) 811 F2d 1359, 1362 [bench conference objection -- even if out of hearing of jury -- insufficient to satisfy defendant's absolute right to object to instructions outside the presence of the jury]; U.S. v. Donato (CA DC 1996) 99 F3d 426, 430; Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) § 3:11.)

    This is so because the jury should not be privy to any jury instruction objection or request. For example, if the jury is aware that the defendant requested a lesser included offense instruction, the jury could infer a consciousness of guilt from such a request. (See FORECITE National™ 2.2.3 [Error To Reveal The Requesting Party].)  Furthermore, in Hamling v. U.S. (1974) 418 US 87, 134 [94 SCt 2887; 41 LEd2d 590], the court noted that the courts examining Rule 30 "have found that it is principally designed to avoid the subtle psychological pressures upon the jurors which would arise if they were to view and hear defense counsel in a posture of apparent antagonism toward the judge."

    Therefore, after completing the charge, the judge should excuse the jurors with the admonition that they are not to start their deliberations, then permit counsel to make objections, bring the jury back and deliver any corrections that are warranted, and tell the jury that it may begin its deliberations. (See U.S. v. Watson (8th Cir. 1982) 669 F2d 1374, 1388; U.S. v. Salinas (5th Cir. 1979) 601 F2d 1279, 1283; State v. Weeks (ME 1970) 270 A2d 366, 369; BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) § 131.101[7].)

    See also FORECITE National™ 2.11.2 [Requiring Objection To Instruction In Front Of Jury As Reversible Error].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
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VOLUME 1 - CHAPTER 2

PRACTICE NOTE: "Requiring objections to instructions to be made in the presence and hearing of the jury is ordinarily prejudicial error unless it affirmatively appears that no prejudice resulted. [Footnotes omitted.]" (O’Malley, Grenig, & Lee, FEDERAL JURY PRACTICE INSTRUCTIONS 7.04 [Objections To Instructions] pp. 480-497 (West, 5th ed. 2000).)

    See FORECITE National™ 2.11.1 [Absolute Right Of Defendant To Object Outside The Presence Of The Jury].