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2.4 Sequence Of Instructions

    2.4.1 Sequence Of Instructions: Court's Discretion
    2.4.2 Sequence Of Instructions Can Cause Confusion And Influence Deliberations

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PRACTICE NOTE: The sequence of the instructions is a matter for the discretion of the trial court. (See e.g., Nungaray v. Pleasant Valley etc Assn. (CA 1956) 142 CA2d 653, 661-62 [300 P2d 285].) Hence, the trial judge should have the discretion to alter the sequencing of instructions used by the standard pattern instructions. (See e.g., People v. Carrasco (CA 1981) 118 CA3d 936, 944 [173 CR 688] ["The editors of [California's pattern instructions] could not have meant to sequence the instructions to relieve the court of all initiative and responsibility"]; Downie v. Powers (10th Cir. 1951) 193 F2d 760, 767 [instructions should be given orally in logical sequence].)

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PRACTICE NOTE: It is also an "obvious fact that the sequence of instructions can, in some cases, result in jury confusion." (People v. Carrasco (CA 1981) 118 CA3d 936, 943 [173 CR 688].) "'The instructions should be arranged in a logical sequence so that the whole will be intelligible to the jury. Symmetry is as necessary to legal exposition for easy understanding as it is to any other form of literary exposition.'" (Id. at 943, quoting address of Chief Judge Devitt of the United States District Court, District of Minnesota, in an address entitled "Ten Practical Suggestions About Federal Jury Instructions" delivered at the Tenth Circuit Judicial Conference held July 9, 1965, as reported in 38 F.R.D. 75, 77; State v.Grey (NJ 1996) 685 A2d 923, 926-27 [unusual circumstances in the sequence and delivery of the instructions to the jury led the jury to improperly predicate its conviction of felony murder on its conviction of conspiracy].) In other words, "[j]uror comprehension will be enhanced if instructions about related topics are given in a related, logical sequence, as, for example, interposing the explanation of the concept of lesser included crimes between the instruction of murder in the first degree and second-degree murder." (FLORIDA STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES Introduction, p. xxvii §3.04(d)[Justifiable Use Of Deadly Force].) [Model Charge For Use In Capital Cases] (Florida Bar, 10/81).)

    The following quotation illustrates how the sequence of the instructions may impact jury deliberations: "Considering the instructions as a whole, we note that the murder instruction precedes the two voluntary manslaughter instructions. This has significance because just as a supplemental instruction may take on special prominence in the jury's mind, [citation to Bollenbach v. U.S. (1946) 326 US 607, 611-12 [66 SCt 402; 90 LEd 350]] so the murder instruction stands at the top of the jury instruction check-list. Jurors are therefore encouraged by the structure of the instruction to answer its requirements first and then move on only if those requirements cannot be met." (Falconer v. Lane (7th Cir. 1990) 905 F2d 1129, 1136.)