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3.2 Duty Of Court To Act On It's Own Motion (Sua Sponte Duties)

    3.2.1 Province Of The Court To Interpret Statute And Apply It To The Facts
    3.2.2 Judge Has Ultimate Responsibility And Duty To Instruct On Legal Principles Applicable To The Case
    3.2.3 Duty To Give Cautionary Or Limiting Instructions
    3.2.4 Evidence Required To Trigger Court's Duty To Instruct Sua Sponte: Substantial Evidence Requirement
    3.2.5 Sua Sponte Duty To Instruct On Defense Theory Supported By Substantial Evidence
    3.2.6 Duty To Define Terms With Specialized/Technical Meaning; No Duty To Define Common Terms
    3.2.7 Court's Duty To Instruct May Not Be Delegated To Counsel
    3.2.8 Characteristics Of Effective Judicial Management
    3.2.9 Duty To Instruct On Defense Theories Sua Sponte
    3.2.10 Duty To Relate The Law To The Facts
    3.2.11 Duty To Go Beyond Form Instructions
    3.2.12 Duty Of Judge To Protect The Defendant's Rights
    3.2.13 Instruction Must Not Be Comment On Defendant's Guilt
    3.2.14 Duty To Screen Out Factually Unsupported Theories
    3.2.15 Impact Of Stipulation On Duty To Instruct
    3.2.16 Instruction On Lesser Included Offense Over Defense Objection
    3.2.17 Judge's Duty To Instruct Not Dependent On Jury's Confusion

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PRACTICE NOTE: The interpretation of a statute and the question of its applicability to any given set of facts are exclusively the province of the court. "Issues of statutory construction and interpretation are legal, not factual. Once the Court resolve[s] such issues, it [is] obligated to instruct the jury in accordance with its decision." (U.S. v. Delano (NY 1993) 825 FSupp 534.) Therefore, the court is under a duty to assure that the jury instructions do not leave matters of statutory construction for resolution by the jury. (People v. Thomas (CA 1945) 25 C2d 880, 897 [156 P2d 7]; see also NCJIC 5.2.4 [When Jury Expresses Lack Of Understanding Of Term With A Common Meaning.)

NOTE: On appeal the case was resolved on constructive amendment grounds. (U.S. v. Delano (2nd Cir. 1995) 55 F3d 720, 729.) The appellate court held that when the terms of the indictment are so altered by presentation of evidence and jury instructions that the essential elements of the charged offense are modified, this constitutes a constructive amendment of the indictment. Constructive amendments of an indictment are per se violations of the 5th Amendment that require reversal even without a showing of prejudice.

    See also NCJIC 272.3.7 [Counsel Should Not Be Permitted To Argue Differing Views Of The Law].

RESEARCH NOTES:

See generally, NCJIC 305.19.9 [Sua Sponte Instructions].

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PRACTICE NOTE: "It is settled that in a criminal case, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citation] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." (People v. St. Martin (CA 1970) 1 C3d 524, 531 [83 CR 166]; see also People v. Sedeno (CA 1974) 10 C3d 703, 716 [112 CR 1].)

    In other words, "[i]n criminal cases the court must instruct on all essential questions of law." (O’Malley, Grenig, & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 7.03 [Requests for Instructions] (West, 5th ed. 2000).)  Hence, "[i]t may be plain error for a trial court to fail to give an instruction even though neither the prosecution nor the defendant requested it because the ultimate responsibility to properly instruct the jury lies with the court and not the attorneys." (State v. Kinnane (HI 1995) 897 P2d 973, 977; see also Jackson v. State (NM 1983) 672 P2d 660, 662; Criminal Procedure (West, 13th ed. 1989) § 467; 75 Am Jur. 2d Trial §1077, 1079; 23 CJS Criminal Law § 1186.)

    "Certain instructions are so central to the jury’s function that the court is required (by case law and/or rule or statute) to give them without prompting from either counsel. [Citations.]" (BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) § 131.101[5][a].)

    A trial judge's "discretion includes power to instruct on all questions and issues growing out of testimony without a request from either party. [Citation.]" (UNIFORM CRIMINAL JURY INSTRUCTIONS (OREGON), UCrJI User’s Guide IV(A) [General Considerations Regarding Jury Instructions-Judge’s Authority To Instruct ] (Oregon State Bar, 1998 ).)

    It is a "fundamental responsibility of the court to see to it that the jury not be permitted to deliberate defendant's guilt or innocence of the crime charged without being told the essential characteristics of that crime. The trial court may not allow the jury to conduct its deliberation in an atmosphere of conjecture and speculation as to what act or acts constitute the crime charged. [Citation.]" (People v. Castro (IL 1971) 274 NE2d 839, 841.)

See NCJIC 3.1 [Duty To Instruct On Elements Of The Charged Offense].

See also NCJIC 3.3.3 [Duty To Correct Defects].

RESEARCH NOTES:

See Manual On Recurring Problems In Criminal Trials [2a. Role Of Judge In Trial: General Principles].

See also generally, NCJIC 305.19.9 [Sua Sponte Instructions].

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    See NCJIC 4.3.4.2 [Circumstances Where Cautionary/Limiting Instructions May Be Required On Court's Own Motion].

See generally, A Manual On Jury Trial Procedures [3.16A Cautionary And Curative Instructions: In General].

See also NCJIC  305.3.2 [Cautionary/Limiting Instructions].

See also NCJIC 305.19.9 [Sua Sponte Instructions].

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PRACTICE NOTE: It has been held that the evidence sufficient to require instruction sua sponte is governed by principles of substantial evidence. (See e.g., State v. Valentine (KS 1996) 921 P2d 770, 773 [duty to instruct on lesser offense supported by substantial evidence]; State v. Babers (IA 1994) 514 NW2d 79, 83 [substantial evidence required for instruction on defense theory]; State v. Spurgeon (MO 1987) 730 SW2d 595, 596 [if there is substantial evidence putting self-defense in issue it is the duty of the trial court to instruct on self-defense as a part of the law of the case whether or not the defendant requested the instruction].) "Substantial evidence is evidence sufficient to deserve consideration by the jury, 'that is, evidence that a reasonable jury could find persuasive.' (case cited)." (People v. Barton (CA 1995) 12 C4th 186, 201, fn 8 [48 CR 2d 569]; State v. Rains (IA 1998) 574 NW2d 904, 915 [substantial evidence of self-defense from any source justifies submission of a self-defense instruction].) Even evidence which is "less than convincing" or subject to justifiable suspicion may constitute substantial evidence. (See People v. Turner (CA 1990) 50 C3d 668, 690 [268 CR2d 706]; People v. Glenn (CA 1991) 229 CA3d 1461, 1467 [280 CR 609].) This includes the testimony of the defendant. (Turner, 50 C3d at 690; Glenn, 229 CA3d at 1467.)

See NCJIC 3.1 [Duty To Instruct On Elements Of The Charged Offense].

    See also NCJIC 3.2.2 [Judge Has Ultimate Responsibility And Duty To Instruct On Legal Principles Applicable To The Case].

RESEARCH NOTES:

See generally, NCJIC 305.19.9 [Sua Sponte Instructions].

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    See NCJIC 3.2.9 [Duty To Instruct On Defense Theories Sua Sponte].

RESEARCH NOTES:

See generally, NCJIC 305.19.9 [Sua Sponte Instructions].

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    3.2.6    Duty To Define Terms with Specialized/Technical Meaning; No Duty To Define Common Terms

PRACTICE NOTE: While a trial court has no sua sponte duty to give amplifying or clarifying instructions in the absence of a request where the terms used in the instructions given are "commonly understood by those familiar with the English language," the court does have a duty to define terms which have a "technical meaning peculiar to the law." (See Wharton’s Criminal Procedure (West, 13th ed. 1989) § 463 [Technical Terms Must Be Defined With Precision]; see also Cissell, Federal Criminal Trials (Lexis, 5th ed. 1999) § 12-7(a), p. 299-300; Gagliardo v. U.S. (9th Cir. 1966) 366 F2d 720, 725 [failure to define the word "indecent" was reversible error]; People v. Pitmon (CA 1985) 170 CA3d 38, 52 [216 CR 221]; People v. Hill (CA 1983) 141 CA3d 661, 668 [190 CR 628]; People v. McElheny (CA 1982) 137 CA3d 396, 403 [187 CR 39]; Abercrombie v. State (IN 1985) 478 NE2d 1236, 1239; State v. Mundy (NC 1965) 144 SE2d 572, 573 [in robbery case, jury must be instructed that taking of property with felonious intent is an essential element of the offense, and court must in some sufficient form explain and define the term "felonious intent"]; Williams v. State (OK 1976) 554 P2d 842, 847 [definition of "proximate cause" is not commonly understood term].)

    However, the judge has no obligation to define common terms that are readily understandable by the jury. ([NF] U.S. v. Young (8/17/2006, 9th Cir. No. 05-30313) 2006 U.S. App. LEXIS 21060.)

    But see NCJIC 272.3.4 [Summation/Closing Argument That Jury Should Utilize Common Dictionary Meaning Of A Term].

RESEARCH NOTES:

See generally, NCJIC 305.19.9 [Sua Sponte Instructions].

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PRACTICE NOTE: The trial court has a nondelegable judicial responsibility to supervise jury deliberations which includes the duty to give necessary supplemental instructions. Therefore, to allow the attorneys to attempt to explain an instruction which the jury does not understand, deprives the defendant of his fundamental right to trial by jury and a fair trial. (Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 2:18 [Charge The Jury-Jurors’ Request For Further Instructions] (West, 1999); see also State v. Hogan (NJ 1945) 42 A2d 562, 563 [duty to instruct jury could not be delegated to the clerk]; People v. Bayes (NY 1991) 584 NE2d 643, 645; Wharton’s Criminal Procedure (West, 13th ed. 1989) § 462, p. 4 ["the trial judge must charge the jury"].)

    See also NCJIC 300.24 [Right To Presence Of Trial Judge].

RESEARCH NOTES:

See generally, NCJIC 305.19.9 [Sua Sponte Instructions].

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PRACTICE NOTE: Effective judicial management generally has the following characteristics:

• It is active: The judge attempts to anticipate problems before they arise rather than waiting passively for matters to be presented by counsel. Because the attorneys may become immersed in the details of the case, innovation and creativity in formulating a litigation plan may frequently depend on the court.
  
  

• It is substantive: The judge’s involvement is not limited to procedural matters. Rather, the judge becomes familiar at an early stage with the substantive issues in order to make informed rulings on issue definition and narrowing, and on related matters such as scheduling, bifurcation and consolidation, and discovery control.
  
  

• It is timely: The judge decides disputes promptly, particularly those that may substantially affect the course or scope of further proceedings. Delayed rulings may be costly and burdensome for litigants, and will often delay other litigation events. Sometimes the parties may prefer that a ruling be timely rather than perfect.
  
  

• It is continuing: The judge periodically monitors the progress of the litigation to see that schedules are being followed and to consider necessary modifications of the litigation plan. The judge may call for interim reports between scheduled conferences.
  
  

• It is firm, but fair: Time limits and other controls and requirements are not imposed arbitrarily or without considering the views of counsel, and are subject to revision when warranted by the circumstances. Once having established a program, however, the judge expects schedules to be met and, when necessary, imposes appropriate sanctions ....
  
  

• It is carefully prepared: Heavy handed case management by an unprepared judge may often be counterproductive, while an early display of careful preparation sets the proper tone and can enhance the judge’s credibility and effectiveness with counsel.
  

See also generally, NCJIC 305.19.9 [Sua Sponte Instructions].

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PRACTICE NOTE: Sua Sponte Duty Triggered By Substantial Evidence – While the duty to instruct on a defense theory more often occurs in the context of a defense request, some courts have recognized a sua sponte duty if the theory is supported by substantial evidence. In some jurisdictions, the trial court has "an affirmative duty to give, sua sponte, a correctly phrased instruction on defendant's theory." (People v. Stewart (CA 1976) 16 C3d 133, 140 [127 CR 117].) "It is settled that in a criminal case, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citation] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." (People v. St. Martin (CA 1970) 1 C3d 524, 531 [83 CR 166]; see also Knotts v. State (AL 1995) 686 So2d 431, 456 [trial court must instruct jury on law applicable to all theories presented by testimony]; People v. Montoya (CA 1994) 7 C4th 1027, 1050 [31 CR2d 128] [sua sponte duty applies to theories which the evidence "strongly illuminates"]; People v. Archuleta (CO 1972) 503 P2d 346, 347 [trial court has duty to properly instruct jury on every issue presented]; Commonwealth v. Duke (KY 1998) 750 SW2d 432, 433 [jury must be instructed on all theories which are deducible from the evidence]; People v. American (MI 1982) 324 NW2d 782, 791 [instructions to jury must include all elements of crime charged and must not exclude material issues, defenses or theories if there is evidence to support them]; State v. Zumwalt (MO 1998) 973 SW2d 504, 507; State v. Houks (MO 1997) 954 SW2d 636, 638; Givens v. State (TX 1988) 749 SW2d 954, 959 [judge should instruct jury as to the law applicable to every theory within scope of indictment which is established by the evidence, whether favorable to the State or accused]; State v. Miller (WV 1990) 400 SE2d 611, 612-13 [trial court must instruct jury on all essential elements of offenses charged, and failure of trial court to instruct jury on essential elements deprives accused of his fundamental right to fair trial, and constitutes reversible error].)

Sua Sponte Duty Triggered By Defense Reliance – "When a defendant actually presents and relies upon a theory of defense at trial, the judge must instruct the jury on that theory even where such an instruction was not requested. [Citations.]" (United States v. Bear, 439 F.3d 565, 568 (9th Cir. 2006); see also Annotation, Duty of Trial Court to Instruct on Self-defense in Absence of Request by Accused, 56 ALR2d 1170.

    See also NCJIC 3.3.3 [Duty To Correct Defects].

    See also NCJIC  Chapter 250 [Defenses And Defense Theories: General Issues].    

    See also NCJIC  295.3.1.4 [Duty To Give Correct Defense Theory Instruction Even If Request Does Not Fully Or Correctly State The Issues].

    Wharton’s Criminal Procedure (West, 13th ed. 1989) § 462.

    See also generally, NCJIC 305.19.9 [Sua Sponte Instructions].

See 6th Circuit Pattern Jury Instructions - Criminal 6.01.

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PRACTICE NOTE: It has been held that the sua sponte duty to instruction on the general principles of law applicable to the trial includes a duty to relate the law to the facts. (See e.g., People v. Sedeno (CA 1974) 10 C3d 703, 716 [112 CR 1]; Rodriguez v. Sullivan (TX 1972) 484 SW2d 592, 593; Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 2:21 [Charge The Jury-Sufficiency Of Charge-Applying Law To Fact] (West, 1988) [in New York it is reversible error for the trial judge to merely give a "bare bones" charge on the law without in any way relating the law to the facts].)

    See also NCJIC 1.4.8 [Relate The Law To The Facts].

RESEARCH NOTES:

See generally, NCJIC 305.19.9 [Sua Sponte Instructions].

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    See NCJIC 1.3.5 [Effective Advocacy Requires Looking Beyond The Pattern Instructions].

    See also NCJIC 1.3.6 [The Instruction Committees Themselves Recognize The Need To Look Beyond The Pattern Instructions].

RESEARCH NOTES:

See generally, NCJIC 305.19.9 [Sua Sponte Instructions].

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PRACTICE NOTE: The trial judge is "a judicial officer entrusted with the grave task of determining where justice lies under the law and the facts ...." (People v. Carlucci (CA 1979) 23 C3d 249, 256 [152 CR 439].) Thus, "it is the duty of the trial judge to see that a case is not defeated by 'mere inadvertence.’ [Citation]." (People v. St. Andrew (CA 1980) 101 CA3d 450, 457 [161 CR 634]; see also U.S. v. Nguyen (9th Cir. 2001) 262 F3d 998 [in denying a request for continuance the trial judge did not demonstrate adequate care and concern for the defendant’s rights; the court’s schedule was the only reason cited for denying the continuance]; Bagnell v. State (IN 1980) 413 NE2d 1072, 1077 [trial court has duty to "vigilantly protect the rights of defendant" against prejudicial prosecutorial comments]; State v. Horn (NC 1994) 446 SE2d 52, 54 [trial judge has a duty to protect defendant's rights by allowing him to present an adequate defense]; State v. Felton (WI 1983) 329 NW2d 161, 174 ["[t]he battle might be so unequal due to the disparity of the skill of counsel that justice would require, in the unusual case, that such instructions [referring to instructions offered by the judge sua sponte] be offered for counsel’s consideration"].)

RESEARCH NOTES:

See generally, NCJIC 305.19.9 [Sua Sponte Instructions].

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    3.2.13    Instruction Must Not Be Comment On Defendant's Guilt

PRACTICE NOTE: "An instruction should be so framed that the jury cannot construe the language at an assumption by the court that the defendant is guilty of the offense charged. It should 'avoid even the appearance of assuming as true certain facts that the jury themselves are required to pass on and determine adversely to the defendant before they can find him guilty.' [Citation.]" (Cooper, KENTUCKY INSTRUCTIONS TO JURIES 1.09(A) [Role Of Jury In Assessing Evidence - In General] (Anderson, 4th ed. 1999).)

    See also NCJIC 6.1.1 [The Prosecution Should Not Be Permitted To Obtain Instructions Which Comment On The Evidence].

    See also NCJIC 19.2.4 [Instruction On Lesser Offenses As To One Codefendant And Not The Other May Improperly Direct The Jury].

    See also NCJIC 33.3.1 [Possession Of Stolen Property: Improper Comment On The Evidence].

    See also NCJIC 34.1.1 [Consciousness Of Guilt As Improper Comment On The Evidence].

    See also NCJIC 34.7.6 [Refusal To Take Blood Alcohol Test: Instruction As Improper Comment On The Evidence].

    See also NCJIC 251.2.1.9 [Comment On Credibility Of Alibi Witness -- Great Caution Required].

    See also NCJIC 251.2.1.10 [Comment On Credibility Of Alibi Witness -- Requirement Of Balanced Instructions].

RESEARCH NOTES:

See generally, NCJIC 305.19.9 [Sua Sponte Instructions].

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PRACTICE NOTE: "Instructions must be restricted to the issues and the facts which the proof tends to establish. [Citations.]" (Cissell, Federal Criminal Trials (Lexis, 5th ed. 1999) §12-7(a), p. 300.) For example, in People v. Guiton (CA 1993) 4 C4th 1116 [17 CR2d 365], the Supreme Court, while providing a new standard of prejudice regarding factually unsupported theories, cautioned that such theories "should not be presented to the jury." (Id. at 1131.) "Trial courts have the duty to screen out invalid theories of conviction, either by appropriate instruction or by not presenting them to the jury in the first place." (Ibid.; see also Griffin v. U.S. (1991) 502 US 466, 474 [112 SCt 466, 116 LEd2d 371] ["it would generally be preferable to remove unsupported theories from the jury's consideration"]; Michigan v. Parks (MI 1975) 226 NW2d 710, 712-14 [reversible error to give an instruction on aiding and abetting when there was no evidence to support the charge].)

RESEARCH NOTES:

See generally, NCJIC 305.19.9 [Sua Sponte Instructions].

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    3.2.15    Impact Of Stipulation On Duty To Instruct

PRACTICE NOTE: In a number of situations it has been held that the defendant may stipulate to prior convictions to avoid having the jury hear evidence and receive instruction upon the alleged prior conviction. (See NCJIC 39.1 [Stipulation]; see also Old Chief v. U.S. (1997) 519 US 172, 176-77 [117 SCt 644; 136 LEd2d 574]; U.S. v. Melvin (1st Cir. 1994) 27 F3d 703, 709 [admission of prosecution's stipulation specifying nature of defendants' prior convictions, rather than defendants' generic stipulations to conviction of crime, constituted reversible error]; U.S. v. Daniel (6th Cir. 1998) 134 F3d 1259, 1262 [admitting evidence of prior convictions for kidnapping and reckless homicide, despite defendant's offer to stipulate to his felon status, was abuse of discretion in prosecution for being felon in possession of firearm]; U.S. v. Wilson (10th Cir. 1997) 107 F3d 774, 783-84 [trial court erred in admitting evidence of defendant's prior cocaine possession conviction for purpose of proving prior felony conviction element of firearm charge, where defendant had offered to stipulate to such prior conviction for purposes of firearm charge]; U.S. v. Torres (ED NY 1985) 610 FSupp 1089, 1093 [where defendant agreed to stipulate to prior felony conviction element of charges of two counts of unlawful shipment of firearms in interstate commerce by a convicted felon, government was barred from introducing evidence that defendant had been previously convicted]; People v. Hall (CA 1998) 67 CA4th 128, 135 [78 CR2d 809] [trial court erred in admitting evidence of a prior conviction and in instructing the jury that it was an element of the offense].)

    Hence, an offer by the defendant to admit a fact may make further proof of and instruction on that fact unnecessary, either because such proof would be irrelevant or because its probative value would be outweighed by the risk of unfair prejudice. (See e.g., People v. Kipp (CA 1998) 18 C4th 349 [75 CR2d 716] [questioning relevance of testimony of parent identifying property of murder victim where defendant offered to stipulate that property belonged to the victim]; State v. Marty (MN 1986) 376 NW2d 515, 517 [trial court prejudicially erred in admitting into evidence appellant's driving record after appellant stated that he would admit to his prior offenses]; State v. McAllister (WI 1989) 451 NW2d 764, 766-67 [error to refuse stipulation as to prior conviction element of the charge]; but see People v. Scheid (CA 1997) 16 C4th 1, 16-17 [65 CR2d 348] [stipulation to manner of shootings in felony murder case did not preclude specific evidence].)

    See also NCJIC 39.2.1 [Drunk Driving Prior Convictions: Bifurcation].

Litigating Felon-With-A-Firearm Cases After Old Chief: Trial Strategies For Lawyers and Judges James Joseph Duane, 12 Crim. Just. 18, Fall, 1997.

See also generally, NCJIC 305.19.9 [Sua Sponte Instructions].

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PRACTICE NOTE: Some jurisdictions permit instruction on lesser included offenses even over defense objection. (See, e.g., Glover v. State (AR 1981) 619 SW2d 629, 631-32; People v. Barton (CA 1995) 12 C4th 186, 193-94, 201-02 [47 CR2d 569]; Commonwealth v. Elmore (KY 1992) 831 SW2d 183, 184; Pennington v. State (TX 1982) 644 SW2d 64, 67; State v. Teal (TX 1976) 543 SW2d 371, 372-73; State v. Wallace (WV 1985) 337 SE2d 321, 322 [defendant does not have right to preclude prosecution from seeking lesser included offense instruction]; Cooper, KENTUCKY INSTRUCTIONS TO JURIES 1.05(B) [Whole Law Of Case Must Be Given - Lessen Included Offenses] (Anderson, 4th ed. 1993) ["instruction on a lesser included offense may be given at the request of the [prosecution] over the objection of the defendant"].)

    See NCJIC 265.3 [Impact Of Counsel’s Request, Objection Or Silence On Duty To Give Lesser Offense Instruction].

RESEARCH NOTE:

Annotation, Lesser-Related State Offense Instructions: Modern Status, 50 ALR4th 1081.

See also generally, NCJIC 305.19.9 [Sua Sponte Instructions].

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    3.2.17    Judge's Duty To Instruct Not Dependent On Jury's Confusion

PRACTICE NOTE:  See Kelly v. South Carolina (2002) 534 US 246 [122 SCt 726, 733; 151 LEd2d 670] ["[I]t cannot matter that [defendant's] jury did not ask the judge for further instruction on parole eligibility, whereas the Simmons (Simmons v. South Carolina (1994) 512 US 154 [114 SCt 2187;129 LEd2d 133) and Shafer (Shafer v. South Carolina (2001) 532 US 36 [121 SCt 1263;149 LEd2d 178]) juries did. A trial judge's duty is to give instructions sufficient to explain the law, an obligation that exists independently of any question from the jurors or any other indication of perplexity on their part."].