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2.2 Sanitizing The Written Instructions

    2.2.1 Sanitizing The Written Instructions: General Rules
    2.2.2 Whether To Include Descriptive Titles On Written Instructions Given To The Jury
    2.2.3 Error To Reveal The Requesting Party
    2.2.4 Jury Should Not Be Concerned About Gap In Numbering Of Instructions

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PRACTICE NOTE: It is "preferable" for the jury to be given sanitized written instructions rather than copies of the "working" instructions. (People v. Douglas (CA 1990) 50 C3d 468, 516 [268 CR 126]; People v. Bloyd (CA 1987) 43 C3d 333, 355-56 [233 CR 368]; see also Cornett v. State (IN 1982) 436 NE2d 765, 766 [improper to give jury written instructions which contained notations such as "refused" or "modified" and indicated the source of the instructions].) Thus, [i]f written instructions are furnished to the jury, all references that would identify the instruction as having been submitted by one side or the other should be excised. (BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) § 131.101(2)(a); see also Lewis v. State (IN 1981) 424 NE2d 107, 110.)

    However, unless counsel makes an appropriate request or objection the error may be waived. (See People v. Hardy (CA 1992) 2 C4th 86, 208 [5 CR2d 796].)

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PRACTICE NOTE: A determination should be made as to whether descriptive titles should be included on the written instructions. It has been held that no error is committed when descriptive titles -- even if erroneous -- are on the written instructions submitted to the jury. (See People v. Bloyd (CA 1987) 43 C3d 333, 355 [233 CR 368]; but see People v. Thomas REV GTD/DISD/DEPUB (CA 1994) 26 CA4th 891, 899 [31 CR2d 731] [harmless error to give wrong label for correct substantive instruction].) However, if the descriptive titles are misleading or incomplete, and/or if some of the instructions are untitled, it may be beneficial to request modification or deletion of the titles so that the jurors are not misled by the titles when they leaf through the written instructions in search of guidance on a given subject. Note that no such request or objection was made in Bloyd. (See e.g., FORECITE National™ 103.1.2.17 [Theft/Larceny With A Prior: Cautionary Instruction Regarding The Prior].)

    A number of pattern instructions from various jurisdictions directly address this question. For example, in Hawaii, the jury instruction committee has specifically stated that "titles are not part of the instructions and are not intended to be read to the jury...." (HAWAII PATTERN JURY INSTRUCTIONS - CRIMINAL, HAWJIC Introduction (West, 1998); see also 5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.17 [Expert Witness] note (2001) ["When the judge gives written instructions to the jury, the judge may wish to delete the title 'expert witness'"]; ALASKA PATTERN CRIMINAL JURY INSTRUCTIONS General use notes (Alaska Bar Association, 1987) [titles of instructions are not intended to come to the attention of the jury]; IDAHO CRIMINAL JURY INSTRUCTIONS, ICJI Introduction and General Directions for Use (Idaho Law Foundation, Inc., 1995) [subject and title "must be omitted"]; WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 926 [Contributory Negligence] comment p. 2 (University of Wisconsin Law School, 1999) ["The term 'contributory negligence' is used only in the title of the instruction. The Committee recommends that the title not be communicated to the jury and has drafted this instruction without using the term"].)

    On the other hand, in North Dakota, it is recommended that the heading of the instruction be given to make oral delivery of the instructions more understandable and assist the jury in reviewing the instructions in the juryroom. (NORTH DAKOTA PATTERN JURY INSTRUCTIONS, NDJI-Criminal Introduction, page 1 (State Bar Association of North Dakota, 1985).)

BRIEFING AVAILABLE: Click here. [Brief Bank # B-624].

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PRACTICE NOTE: The judge should not give the jury any indication as to which instructions were requested by which party. (See e.g., People v. Holiday (NY 1979) 416 NYS2d 663, 664 [improper for court to inform jury that specific instruction was being given at defendant's insistence]; see also Presley v. State (AL 1990) 587 So2d 1016, 1020; Jones v. State (AL 1980) 392 So2d 1270, 1271; see also People v. Knowell (NY 1983) 464 NYS2d 525, 529; People v. Giamanco (NY 1979) 413 NYS2d 746; Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 2.22 [Charging The Jury – Sufficiency Of Charge -- Balanced And Non-Prejudicial Wording] (West, 1999).) By informing the jury that the defendant requested a particular instruction there is a danger that the jury may view this as a concession or admission on the part of the defendant. Additionally, such a statement by the court may be viewed by the jury as a comment on the evidence expressing the judge's view that the evidence does not support the instruction. (See generally FORECITE National™ 16.14.3.5 [No Inference From Rulings Of The Court: Cautionary Instruction].)

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RATIONALE: Even when the descriptive titles of the instruction are not included in the written instructions submitted to the jury, often the instructions will be numbered for ease of reference. If an instruction is omitted at the last moment, there may be a gap of the numbering of the instructions which could confuse the jury.

POINTS AND AUTHORITIES: In view of its duty to assure that the jurors fully understand the instructions (see McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 836-41) the court should either renumber the instructions or provide an instruction such as the one below.  (See e.g., IDAHO CRIMINAL JURY INSTRUCTIONS, ICJI 206 [Instructions And Exhibits] (Idaho Law Foundation, Inc., 1995).)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.1].