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

VOLUME 1 - CHAPTER 3
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3.3 Duty Of Court: Requested Instructions

      3.3.3 Duty To Correct Defects

    3.3.3.1 Duty To Correct When Requested Instruction Is Incomplete Or Incorrect

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

VOLUME 1 - CHAPTER 3

PRACTICE NOTE: In some jurisdictions, the denial of a requested instruction is proper so long as any portion of the instruction is incorrect. (See Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS, Motions - I(A)(2) [Severance Of Portions Of Defendants Requested Instructions] (South Carolina CLE, 1994).)

    However, other jurisdictions recognize a duty to correct defective instruction requests arising from the trial court's ultimate responsibilities to assure that the jury is correctly instructed. (See People v. Castillo (CA 1997) 16 C4th 1009, 1016 [68 CR2d 648] [even when a trial court instructs on a matter on which it has no sua sponte duty to instruct, it must do so correctly]; People v. Fudge (CA 1994) 7 C4th 1075, 1110 [31 CR2d 321] [judge must tailor instruction to conform with law rather than deny outright]; People v. Malone (CA 1988) 47 C3d 1, 49 [252 CR 525]; State v. Sawyer (HI 1998) 966 P2d 637, 642 [trial court has the duty either to correct any defects or to fashion its own instructions]; Bailey v. Commonwealth (VA 2000) 529 SE2d 570, 584-85 [when a principle of law is materially vital to a defendant, it is reversible error for the trial court to fail to correct a defective instruction or verdict form when the error is patent or the subject of a proper objection even if the defendant fails to proffer alternative instructions or verdict forms]; State v. Lambert (WV 1984) 312 SE2d 311 [ultimate responsibility to ensure that jury is correctly instructed in criminal cases rests with the trial court].)

    This duty may require the trial court to correct or tailor an instruction to the particular facts of the case even though the instruction submitted by the defense was incorrect. (See People v. Stewart (CA 1976) 16 C3d 133, 140 [127 CR 117]; see also Kass v. Great Coastal Express, Inc. (NJ 1996) 676 A2d 1099, 1107 [because request as formulated by plaintiff omitted the standard of proof, the judge has the responsibility to determine the applicable standard of proof]; People v. Parsons (CO 1980) 610 P2d 93, 94; State v. Bunce (NM 1993) 861 P2d 965 [inadequate defense request on mistake of fact did not relieve trial court of obligation to correctly instruct on this defense theory]; Williams v. State (TX 1982) 630 SW2d 640, 643 [although a specially requested charge may be defective, it still may serve to call the court's attention to the need to charge on a defensive issue]; Morse v. Commonwealth (VA 1994) 440 SE2d 145 ["Trial court should have prepared its own instruction or required counsel to submit a new instruction that correctly defined the defense"]; State v. Dellinger (VA 1987) 358 SE2d 826 [failure of defense counsel to offer a sexual abuse instruction was such plain error the trial court should have intervened to avoid prejudice to the defendant].)

    In sum, "[w]hen the defendant submits a theory of the case instruction the trial court is "responsible for making the necessary alterations to the instruction, assuming arguendo that the theory on the whole was legally sound and that [defendant] presented sufficient evidence to justify the instruction." (U.S. v. Newcomb (6th Cir. 1993) 6 F3d 1129, 1132 [trial court erred in failing to correct defendant’s defective instruction on necessity].)