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

VOLUME 1 - CHAPTER 4
Go to Volume 1 Table of Contents - Go to Chapter 4 Table of Contents

4.2 Instruction Objections

    4.2.2 Specific Objections

    4.2.2.1 Duty To Object: Impact Of Pre-Trial Ruling
    4.2.2.2 Duty To Object: Security Measures At Trial
    4.2.2.3 Duty To Object: Prosecutorial Misstatements Of Law
    4.2.2.4 Duty To Object: Misconduct Of Cocounsel
    4.2.2.5 Duty To Object: Lesser Offenses

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

VOLUME 1 - CHAPTER 4

PRACTICE NOTE: From an appellate point of view, the record will be much stronger both in terms of preserving the issue and establishing prejudice if counsel has made it clear on the record that the refusal of the court to give the requested instruction impacted the defense strategy and in particular the presentation of evidence by the defense. However, in some jurisdictions, pretrial rulings may not be binding and thus do not necessarily preserve issues for appeal. Hence, if an in limine request is denied it should later be renewed at trial unless there was an appropriate stipulation or court order making the ruling binding for the purpose of appeal. (See e.g., People v. Morris (CA 1991) 53 C3d 152, 187-91 [279 CR 720]; People v. Karis (CA 1988) 46 C3d 612, 634, fn 16 [250 CR 659]; see also Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) p. 74:1.)

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

VOLUME 1 - CHAPTER 4

PRACTICE NOTE: The use of physical restraints or other security measures in the trial court cannot be challenged for the first time on appeal. (People v. Tuilaepa (CA 1992) 4 C4th 569, 583 [15 CR2d 382]; see also People v. Majors (CA 1998) 18 C4th 385, 406 [75 CR2d 684] [defendant's failure to object and make a record below waives the claim for appeal].)

    However, there may be a sua sponte duty to give a cautionary instruction when the defendant's shackles are visible to the jury. (See NCJIC 17.1.7 [Courtroom Security: Request Or Sua Sponte].)

    See also NCJIC 4.3.2.1 [Cautionary/Limiting Instructions Must Be Requested].

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

VOLUME 1 - CHAPTER 4

PRACTICE NOTE: It is misconduct for the prosecution to misstate the law in argument to the jury. (People v. Hill (CA 1998) 17 C4th 800, 831-33 [72 CR2d 656].) For example, in Hill there were three instances of such misconduct.

    First, the prosecutor misstated the law concerning the import of circumstantial evidence. In addition, her argument that the jury would have to acquit the defendant of all charges if it found insufficient intent for robbery under the felony murder theory was legally incorrect, particularly since defense counsel had conceded that the perpetrator would be guilty of second degree murder.  (Ibid.)

    Second, the prosecutor misstated the law when she argued that "pretend[ing] to sell them something in order to get money" is robbery since she omitted the force or fear element. This argument undermined the defendant's primary defense at the guilt phase and thus contributed to the overall unfairness of the trial.  (Ibid.)

    Third, with regard to reasonable doubt, the prosecutor asserted that "[t]here has to be some evidence on which to base a doubt. You can't say, well one of the attorneys said so." The court read this ambiguous comment as another misstatement of law: "Although the question arguably is close, we conclude it is reasonably likely Morton's comments, taken in context, were understood by the jury to mean defendant had the burden of producing evidence to demonstrate a reasonable doubt of his guilt. Accordingly, we conclude [the prosecutor] committed misconduct by misstating the law." (Id. at 832.) 

    Normally, counsel must object to such prosecutorial misstatements of the law during argument. (Hill, 17 C4th at 820.) While objection may be excused where the prejudice cannot be cured, this is rare. (Ibid.) In most cases, objection is necessary for two important reasons: one, to preserve the issue for appeal and two, to prevent the jury from relying on the misstatement. (Note that some standard pattern instructions permit the jury to rely on counsel's statements of law during argument which do not conflict with the instructions.) (See NCJIC 272.3.3 [Jury May Consider Summation/Closing Argument Of Counsel As To Meaning Of Instructions If Not Inconsistent With The Judge’s Instructions].)

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

VOLUME 1 - CHAPTER 4

PRACTICE NOTE: While there may be a tendency in some situations to view cocounsel as an ally, cocounsel may intentionally or unintentionally impact the rights of the other defendants. (See NCJIC 300.20.1 [Misconduct Of Cocounsel As An Abridgement Of Defendant's Constitutional Rights].) In fact, the actions of the codefendant or cocounsel can be just as prejudicial as those of the prosecutor. For example, "...[c]ounsel for a codefendant may not comment on the defendant’s failure to testify." (Wharton’s Criminal Procedure (West, 13th ed. 1989) § 353 pg. 128; see also U.S. v. Alpern (7th Cir. 1977) 564 F2d 755, 759 [improper argument by codefendant’s counsel cured by cautionary instruction].) Yet, unless an objection is raised to the codefendant's comments, any claim on appeal will likely be waived.

    The defendant is ordinarily required to object to prejudicial conduct by cocounsel such as improper argument. (See NCJIC 4.2.2.4 [Duty To Object: Misconduct Of Cocounsel].) The same rationale logically applies to erroneous jury instructions offered by the codefendant which are prejudicial to another defendant. Hence, counsel should be alert to object to instructions offered by the codefendant which are contrary to the defendant's position. (See e.g., NCJIC 18.3.3 [Whether Instructions Against Drawing Inference From Codefendant's Failure To Testify Should Be Given When Defendants Disagree].)

RESEARCH NOTE:

Annotation, Comment On Accused’s Failure To Testify, By Counsel For Codefendant, 1 ALR3rd 989.

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

VOLUME 1 - CHAPTER 4

PRACTICE NOTE: Given the general rule that instructional issues may be deemed waived if not raised at trial (see NCJIC  4.1 [The Basic Rule: Instruction Issues Should Be Raised At Trial]), the failure to object to instruction on a lesser included offense may constitute a waiver of any issue as to the propriety of the instruction. (See generally NCJIC 267.2 [Instruction On Uncharged Non-Included Lesser Offense Violates Due Process].)

    See also NCJIC 265.3.5 [Whether Court Has Duty To Instruct On Lesser Included Offense Over Objection Of Both Prosecution And Defense].