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2.3.2 Propriety Of Mid-Trial Instructions

    2.3.2.1 Propriety Of Midtrial Instructions: General Principles
    2.3.2.2 Use Of Interim Or Mid-Trial Instructions
    2.3.2.3 Mid-Trial Instructions: Admonition That Final Instructions Control
    2.3.2.4 Mid-Trial Change In Ruling Regarding Instruction: Unfair Surprise

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
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VOLUME 1 - CHAPTER 2

PRACTICE NOTE: "The judge should also consider giving instructions at any point in the trial where they might be helpful to the jury; an explanation of applicable legal principles may be more helpful when given at the time the issue arises than if deferred until the close of trial." (Herr, Annotated Manual for Complex Litigation (West, 3rd ed, 1999) § 22.433, p. 162.)

    For example, cautionary and limiting instructions are normally more effective if given midtrial concurrently with, or in anticipation of, the prejudicial matter. "In recognition of the shortcomings of instructions at the tail end of trial, certain matters are held to trigger the need for an immediate cautionary instruction, e.g., cautioning the jury to consider a prior conviction for impeachment use only, to disregard testimony to which an objection has been sustained, to consider evidence of other crimes only for the distinct purpose for which it was admitted, how to evaluate evidence of prior consistent and inconsistent statements, propriety of expression of opinion by expert and proper consideration of such opinion, photographs or mug shots of defendants. [Citation.]" (BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) §131.101[1][b]; see also  NCJIC  26.1.2 [Timing Of Limiting Instruction].)

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].

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
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PRACTICE NOTE: Some instructions are most logically and effectively given midtrial at the time the issue arises. For example, limiting instructions are more likely to be effective if the are given at the time the limited purpose evidence is admitted. (See NCJIC 26.1.2 [Timing Of Limiting Instruction].) Similarly, cautionary instructions as to potentially prejudicial events occurring during trial will obviously be most effective if given immediately after the event occurs. (See e.g., NCJIC 16.12 [Disruptive Spectators In The Courtroom].)

    "The judge should also consider giving instructions at any point in the trial where they might be helpful to the jury; an explanation of applicable legal principles may be more helpful when given at the time the issue arises than if deferred until the close of trial." (Herr, Annotated Manual for Complex Litigation (West, 3rd ed, 1999) § 22.433, p. 162.)

    Additionally, in long or complex trials it may be appropriate to repeat some of the preliminary instructions midtrial so the jury remembers these principles.

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].

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
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VOLUME 1 - CHAPTER 2

RATIONALE: As with preliminary instructions, the court should caution the jury that [midtrial instructions] are only interim explanations, and that the final, complete instructions on which they will base their verdict will be given at the close of trial.

POINTS AND AUTHORITIES: Herr, Annotated Manual for Complex Litigation (West, 3rd ed, 1999) § 22.433, p. 162; see also 11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL Trial Instruction 1.2 [Preliminary Instructions Before Opening Statements (Long Form)] (1997).

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.3].

See A Manual On Jury Trial Procedures [General Principles].

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].

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

VOLUME 1 - CHAPTER 2

PRACTICE NOTE: In People v. Dennis (CA 1998) 17 C4th 468, 532-35 [71 CR2d 680], the court implicitly recognized that the defendant could be unfairly surprised if the trial court, at the end of the evidence, changed its midtrial rulings regarding cautionary and limiting instructions as to the evidence admitted. However, Dennis made it clear that the trial attorney must object and put the basis for the unfair surprise on the record as soon as possible. Failure to do so waives the error.

    See alsoNCJIC 300.2.3 [Changing The Rules In The Middle Of The Game].

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].