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

VOLUME 1 - CHAPTER 2
Go to Volume 1 Table of Contents - Go to Chapter 2 Table of Contents

2.6 Presence Of Defendant Re: Instructions

    2.6.1 Presence Of Defendant: Instruction Conference
    2.6.2 Presence Of The Defendant: Oral Rendition Of Instructions
    2.6.3 Presence Of Defendant: Supplemental Instructions

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

VOLUME 1 - CHAPTER 2

PRACTICE NOTE: "In general, the defendant must be present when...instructions are given to the jury or...when additional instructions are given...." [Footnotes omitted.] (Wharton’s Criminal Procedure (West, 13th ed. 1989) § 430, pp. 806-07.)

    However, People v. Dennis (CA 1998) 17 C4th 468, 538 [71 CR2d 680] held that the defendant's absence from the jury instruction conference was not prejudicial because it was "unlikely that defendant, a lay person, would have contributed in any way to the discussions regarding appropriate instructions on issues of law."

    Nevertheless, in some situations the defendant's presence at the instruction conference is necessary. For example, if there is a debate over whether there is going to be an instruction on an uncharged lesser offense, the defendant should have some input over whether he or she is going to accept conviction of an uncharged offense. (See generally NCJIC 265.3.1 [Whether Defendant Or Counsel Should Make The Ultimate Decision To Request A Lesser Included Offense Instruction]; see also NCJIC 265.3.2 [Whether Personal Waiver By The Defendant Should Be Required Before Omitting Lesser Included Offense Instruction].) It is also conceivable that the defendant should have some input on whether certain optional instructions will be given (e.g., instruction on defendant's assertion of privilege against self-incrimination.) (See generally NCJIC 18.3.4 [Waiver Of Instruction Regarding The Defendant's Failure To Testify To Avoid Prejudicially Highlighting The Matter].)

See A Manual On Jury Trial Procedures [1.6 F. Presence Of Defendant (Criminal): Jury Instruction Conferences].

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

VOLUME 1 - CHAPTER 2

PRACTICE NOTE: It is error for the court to instruct the jury in the absence of the defendant and his counsel. (Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 2:05 [Charge The Jury-Jurors Request For Further Instructions] (West, 1999); see also Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) § 3:12 [Defendant's Right To Be Present During Jury Instructions].) The absence of the defendant violates the right to be present at all stages of the trial and may impermissibly undermine the defendant's credibility.  (See also People v. Long (NY 1984) 480 NYS2d 514, 515).

    See NCJIC 2.6 [Presence Of Defendant Re: Instructions].

    See also NCJIC 300.15 [Presence Of Defendant At Trial]; 

    The defendant's right to be present during the giving of jury instructions is absolute and unequivocal. (See People v. Torres (NY 1990) 557 NYS2d 891, 895.)

See A Manual On Jury Trial Procedures [1.6 F. Presence Of Defendant (Criminal): Jury Instruction Conferences].

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

VOLUME 1 - CHAPTER 2

PRACTICE NOTE: The defendant's right to be present when there is communication between the court and jury is guaranteed by the 5th and 6th Amendments to the federal constitution. For example, U.S. v. Treatman (8th Cir. 1975) 524 F2d 320, 323, concluded that "it is settled law that communications between the judge and jury in the absence of and without notice to defendant and his counsel are improper. ...The appellant’s right to be present is constitutionally guaranteed by both the 5th and 6th Amendments to the federal constitution." Hence, it is clear error to give supplemental instructions in the absence of the defendant. (See United States v. Fontanez (2nd Cir. 1989) 878 F2d 33; see also U.S. v. Rosales-Rodriguez (9th Cir. 2002) 289 F3d 1106 [delivery of supplemental instruction to a jury is a "critical stage" of the prosecution, at which the defendant’s right to be present applies]; Speer v. State (AL 1990) 570 So2d 1271, 1273 [error to give three supplemental instructions to jury while defendant remained in custody]; People v. Oden (IL 1994) 633 NE2d 1385, 1389 [reversible error to give supplemental instructions to jury off the record and outside presence of defendant or his counsel]; Taylor v. State (MD 1998) 722 A2d 65, 68 [response to jury inquiry in the absence of the defendant may be reversible error]; People v. Bonilla (NY 1992) 589 NYS2d 61, 61 [reversible error to send jury written note instructing it to continue deliberations after court received a note from the jury stating it was deadlocked]; People v. Torres (NY 1990) 557 NYS2d 891, 894 [error to give supplemental individualized instruction to juror in judge’s chambers]; People v. Carr (NY 1990) 562 NYS2d 99, 100 [trial court improperly gave supplemental instructions, in presence of prosecutor and defense counsel but in absence of defendant; defense attorney’s waiver of defendant's presence was ineffective]; State v. Rice (WA 1988) 757 P2d 889, 909 [communications between judge and deliberating jury in the absence of defendant are error of constitutional magnitude that violate the defendant's right to appear and defend in person and by counsel].)

    See also NCJIC 2.7.2 [Presence Of Counsel During Supplemental Instructions].

RESEARCH NOTES:

Annotation, Giving, in Accused's Absence, Additional Instruction to Jury After Submission of Felony Case, 94 ALR2d 270.

WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 4.67 [Questions By Jury Addressed To Court], comment (West, 2nd ed. 1994) ["[t]he defendant has a constitutional right to be present at every stage of a trial. This appears to include the right to be present for the giving of additional information or instructions to the jury after deliberations have begun. [Citations.]".]