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2.3 Timing Of Instructions (When To Instruct)

       2.3.1 Timing Of Instructions: Miscellaneous Issues

    2.3.1.1 Propriety And Importance Of Preliminary Instructions
    2.3.1.2 Whether To Instruct Before Or After Arguments
    2.3.1.3 Failure To Repeat Preliminary Instructions At End Of Trial
    2.3.1.4 Interruption Of Jury Instructions As Prejudicial Error
    2.3.1.5 Duty Of Court To Advise Counsel Before Argument As To Which Instructions Will Be Given
    2.3.1.6 New Or Additional Instructions After Argument
    2.3.1.7 Supplemental Instructions During Deliberations

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PRACTICE NOTE: "The idea of orienting the jury before it gets down to work is of paramount importance. There are almost certain to be some members who are truly bewildered or who have gross misconceptions about their role. They should not have to wait until the judge gives his final charge before they are set straight." (PENNSYLVANIA SUGGESTED STANDARD CRIMINAL JURY INSTRUCTIONS, Pa. SSJI (crim) 2.00 [Introduction: General Suggestions] (Pennsylvania Bar Institute, PBI Press, 12/98).)

    For a preliminary instruction checklist, see NCJIC 12.1.2 [Specific Subjects Appropriate For Preliminary Instructions].

    See also NCJIC Chapter 12 [Preliminary Instructions].

See A Manual On Jury Trial Procedures [4.2.3 C. Record On Instructions: Timing].

See also generally, NCJIC 305.20.5 [Timing Of Instructions/When To Instruct].

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PRACTICE NOTE: While judges have traditionally instructed jurors following the arguments of counsel, there is often no requirement that the instructions be given at that time. Hence, the court may in its discretion give a major part of the instructions before arguments to assist the jury in understanding the arguments and to avoid the need for lawyers to preview the instructions in their arguments. (See 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL Introductory Comment, (2000); see also Schwarzer, Communicating With Juries, Problems and Remedies, 69 Calif. L.Rev. 731, 768 (1981).)

    "...[T]here are advantages to giving the bulk of the instructions before argument.  Instructions on the law may make closing arguments easier to understand, and counsel, instead of previewing the court’s instructions during argument, can refer to instructions already given in arguing their application to the facts. Hearing the instructions may also help counsel structure their arguments. The court should, however, reserve the final closing instructions until after arguments, reminding the jury of the instructions previously given and instructing them about the procedures to be followed in deliberations." [Footnote omitted.] (Herr, Annotated Manual for Complex Litigation (West, 3rd ed. 1999) § 22.434, p. 162.)

    In People v. Murillo (CA 1996) 47 CA4th 1104, 1109 [55 CR2d 21] Justice Epstein concluded that the "preferable" method is to instruct the jury after the close of evidence, but before the arguments of counsel, reserving only the concluding instruction to follow the arguments. "This approach allows the jury to understand the governing rules before hearing from the attorneys about how those rules apply to the facts at hand. It also protects all parties from a careless misstatement of the law in argument, and avoids the awkward and repetitive preface 'the judge will instruct you....' Most important, it lays a foundation upon which both parties can build, better enabling the jury to evaluate the relative sturdiness of the arguments constructed." (Ibid.)

See A Manual On Jury Trial Procedures [4.2.3 C. Record On Instructions: Timing].

See also generally, NCJIC 305.20.5 [Timing Of Instructions/When To Instruct].

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PRACTICE NOTE: The failure to repeat preliminary instructions at the end of the case may be federal constitutional error. (See Little v. State (GA 1998) 498 SE2d 284, 287-88.) 

    However, People v. Chung (CA 1997) 57 CA4th 755, 758-59, [67 CR2d 337] held that, in the absence of evidence of juror confusion, it was not error for the trial court to omit, at the end of trial, certain instructions which were given as preliminary instructions. In Chung, the trial court gave half of the instructions -- including those relating to evaluation of the credibility of witnesses -- after the opening statements and before the first witness was called. The Appellate Court held that this practice was not prohibited.

    See NCJIC 12.1.3 [Preliminary Instructions Not A Substitute For Final Instruction].

    See NCJIC 12.3.10 [Preliminary Instructions: Admonition That Final Instructions Control].

    See NCJIC 10.2.3 [Pretrial Instruction During Voir Dire: Impact On Jury Instruction Errors At Trial].

    See NCJIC 270.2.9 [Failure To Instruct On Burden Of Proof: Reference To Burden In Other Instructions Or Argument Does Not Cure The Error].

    See NCJIC  297.2.10 [Prejudice On Appeal: Correct Preliminary Instruction Does Not Cure Error].

See A Manual On Jury Trial Procedures [4.2.3 C. Record On Instructions: Timing].

See also generally, NCJIC 305.20.5 [Timing Of Instructions/When To Instruct].

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PRACTICE NOTE: Interruptions in the oral rendition of jury instructions may be improper and prejudicial. (See e.g., People v. Fujah (NY 1992) 582 NYS2d 497, 497 [reversible error where judge began instructing the jury before the arguments of counsel and then allowed the summations to be completed before completing the instructions to the jury thus creating a likelihood that the jury was confused].)

    Although it has been held permissible to start the instructions late one day and complete them the next (see State v. Cickelli (OH 1962) 193 NE2d 409, 415), such a procedure should "be avoided if possible...." (OHIO JURY INSTRUCTIONS, VOLUME 4 - CRIMINAL, OJI 403.01, comment [Delivery] (Anderson, 1997).) This is for the obvious reason that the instructions must be considered as a whole (see NCJIC 16.10.4 [Duty To Consider Instructions As A Whole]; see also NCJIC 297.1.5 [Instructions Must Be Considered As Whole]) and undue emphasis should not be given to one instruction over another (see NCJIC 284.2.2 [Readback Of Testimony: Necessity Of Cautionary Instruction To Avoid Undue Emphasis]; see also NCJIC 285.2.3 [Admonition That Supplemental Instructions Have No Greater Weight Than Original Instructions]) and these principles may be undermined if the jury receives piecemeal instruction over two different days.

See A Manual On Jury Trial Procedures [4.2.3 C. Record On Instructions: Timing].

See also generally, NCJIC 305.20.5 [Timing Of Instructions/When To Instruct].

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PRACTICE NOTE: In Wright v. United States (9th Cir. 1964) 339 F2d 578, 579 the Court of Appeals held that the defendant's conviction of a federal offense should be reversed since the trial court had failed to comply with the provision of FRE 30 (FRCP) requiring the trial court to inform counsel of its proposed action upon the request for instructions, prior to argument to the jury. The court noted that the defendant's counsel, who had submitted written request for instructions reflecting his theory of defense, asked to be advised prior to closing arguments which of the submitted requests the trial court was going to accept. The trial court had responded, "I am going to give the general instructions. And you go ahead and argue the case any way you want to argue it. And I will instruct the jury as to the law involved in this case."  The court further noted that the defendant's counsel proceeded to make his argument, basing it in part upon the theory of defense reflected in his request, and the trial court then charged the jury without giving the requested instructions, or any others dealing adequately with the defendant's theory.

    The rationale for requiring the court to disclose its rulings on the requested instructions prior to argument is that counsel is entitled to shape their arguments around the instructions that will follow. "If the court decides not to give one or more instructions requested by counsel, ... counsel should know that before addressing the jury, not only to avoid embarrassment and the appearance of ineptness, but to avoid needless comment upon irrelevant matters, to avoid the risk of alienating jurors with what appears, to them, to be unfair attention to inconsequential or inappropriate matters or even an attempt to confuse them." (Moody v. Pulte Homes Inc., (MI 1985) 378 NW2d 319, 323; see also People v. Sanchez (CA 1978) 83 CA3d Supp 1 [147 CR 850] ["We are persuaded that the trial judge, by changing her mind in the presence of the jury and in effect requiring defense counsel to change the entire thrust of his argument (without any time to ponder it further or to reflect upon the court’s ruling) had the effect of destroying the credibility of the defense attorney in the eyes of the jury. Such required shifting of gears rendered defense counsel ineffective"].)

    This rationale should also permit the reopening of argument and/or testimony if the court misleads counsel by changing the instructions after argument. (See BNA Criminal Practice Manual (Pike and Fisher, 1999) § 131.101[4]; see also NCJIC 272.2.2 [Right To Reopen Summation/Closing Argument When New Instructional Theory Presented After Argument]; see also NCJIC 285.4.2 [Supplemental Instructions: New Charges Or Theories]; NCJIC 285.4.3 [Right To Reopen Argument If Supplemental Instruction Covers New Subject].)

See generally O’Malley, Grenig, & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 7.01 [In General] (West, 5th ed. 2000).

See A Manual On Jury Trial Procedures [4.2.3 C. Record On Instructions: Timing].

See also generally, NCJIC 305.20.5 [Timing Of Instructions/When To Instruct].

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PRACTICE NOTE: When the jury instructions are changed after the arguments of counsel, several potential constitutional rights of the defendant may be implicated. For example, if the new instruction presents a crime of which the defendant lacked notice, due process may be implicated (14th Amendment).  (See Sheppard v. Rees (9th Cir. 1989) 909 F2d 1234, 1236.)  Additionally, the federal constitutional rights to effective assistance of counsel and to argument to the jury (see Herring v. New York (1975) 422 US 853, 858 [95 SCt 2550; 45 LEd2d 593]) may be violated if the changed instruction unfairly prevented defense counsel from arguing the defense to the jury or substantially misled counsel in formulating and presenting arguments. (See U.S. v. Gaskins (9th Cir. 1988) 849 F2d 454, 458; see also Lankford v. Idaho (1991) 500 US 110 [111 SCt 1723; 114 LEd2d 173]; People v. Sanchez (CA 1978) 83 CA3d Supp 1, 7 [147 CR 850] [reversal required because defense counsel's credibility was destroyed when the trial court changed an intended instruction in open court in front of the jury and in the middle of defense counsel's closing argument].)

    However, to avoid waiving such an error, it has been held that counsel must make a request to reopen closing argument and/or for a continuance. (See People v. Bishop (CA 1996) 44 CA4th 220, 235 [51 CR2d 629]; see also People v. Memro (CA 1995) 11 C4th 786, 869 [47 CR2d 219 [failure to ask to reopen waived error in instructing on uncharged felony murder theory].)

    It has been recognized that giving additional instructions after argument is "bad practice" but not necessarily reversible error. (Cooper, KENTUCKY INSTRUCTIONS TO JURIES Section 1.54 [Matters Of Form And Procedure - Giving Additional Instructions] (Anderson, 4th ed. 1999).) However, where the prosecution requests additional instruction during argument it is questionable whether the giving of such an instruction can be cured even by allowing the defense attorney to argue the additional instruction. (Ibid.; see also U.S. v. Blackmon (2nd Cir. 1988) 839 F2d 900, 909-10; U.S. v. Gaskins (9th Cir. 1988) 849 F2d 454, 458-60.)

    See also NCJIC 272.2 [Summation/Closing Argument: Right To Notice Of Instructions Before Argument].

    See also NCJIC 285.4.2 [Supplemental Instructions: New Charges Or Theories].

    See also NCJIC 285.4.3 [Right To Reopen Argument If Supplemental Instruction Covers New Subject].

    See also NCJIC 300.2 [Due Process: Notice].

Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) § 3.10.

See A Manual On Jury Trial Procedures [4.2.3 C. Record On Instructions: Timing].

See also generally, NCJIC 305.20.5 [Timing Of Instructions/When To Instruct].

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    See NCJIC Chapter 285 [Supplemental Instructions].