Chapter 5

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5.2 Jury Instruction Language: Miscellaneous Principles

    5.2.1 The Statute As A Source Of Instruction Language
    5.2.2 Statute Should Not Be Read Or Paraphrased To The Jury
    5.2.3 Instruction Should Not Refer To Specific Code Section Defendant Is Charged With Violating
    5.2.4 When Jury Expresses Lack Of Understanding Of Term With A Common Meaning
    5.2.5 Language From Appellate Court Opinions
    5.2.6 Instructions Approved By The Reviewing Court
    5.2.7 Reference To Specific People Or Facts
    5.2.8 Impropriety Of Gender Bias By Use Of Masculine Pronouns
    5.2.9 Comment On Credibility Of Specific Witness
    5.2.10 Improper To Use Facts Of Reported Cases To Illustrate Jury Instructions
    5.2.11 Identifying The Party Who Has The Burden Of Proof
    5.2.12 Capitalization Of "Court" And "Jury"
    5.2.13 Including Victim's Name In Pattern Instruction
    5.2.14 Use Of The Term “Unlawful” In A Jury Instruction Is Ambiguous
    5.2.15 Use of the Term “Engaged In” Is Unclear

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5.2.1 The Statute As A Source Of Instruction Language

PRACTICE NOTE: "The language of a statute defining a crime or defense is generally an appropriate and desirable basis for an instruction, and is ordinarily sufficient when the defendant fails to request amplification. If the jury would have no difficulty in understanding the statute without guidance, the court need do no more than instruct in statutory language." (People v. Poggi (CA 1988) 45 C3d 306, 327 [246 CR 886]; see also Vaughan v. State (IN 1983) 446 NE2d 1, 6; State v. Johnson (WA 1972) 500 P2d 788, 797 [instructions may describe crime charged in language of statute, and court may supplement statutory language by an explanatory instruction, but such an instruction is unnecessary if statutory language is reasonably clear and not misleading to persons of ordinary intelligence].)

However, instructions need not merely "parrot the language of the statute. [citation]" State v. Nakamura (HI 1982) 648 P2d 183, 186; see also State v. Apao (HI 1978) 586 P2d 250, 263 ["The trial court is not required to instruct the jury in the exact words of the applicable statute"]. "The failure of a court to follow the language of a statute in its instructions is not a ground for reversal, provided the instructions embrace the meaning of the statute." (Cooper, KENTUCKY INSTRUCTIONS TO JURIES 1.13 pp. 24-25 [Conformity Of Instructions To Statute And Indictment] (Anderson, 4th ed. 1999)

"Although instructions based on code sections should follow the language of the particular section at issue, the court should give explanatory instructions where the statutory wording is confusing or couched in legal terms. [Citation.] 'It is incumbent upon the trial court to determine whether or not a code section should be explained.' [Citations.]" (Brown v. Smith (CA 1997) 55 CA4th 767, 784-85 [64 CR2d 301].) "...[T]he onus is always upon the trial judge to make the instructions as clear as possible, and reliance upon statutory language will not suffice unless it does so." (Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 2.23 [Charge The Jury-Comprehensible Statutory And Decisional Language] (West, 1999) "While it is permissible to draft instructions using statutory language, other language may be used if it does not change the meaning of the law." (VIRGINIA MODEL JURY INSTRUCTIONS - CRIMINAL Chapter 1(1) [Role Of Instructions Generally] pg. I-1 (Lexis, 2000); see also Fitzgerald v. Commonwealth (VA 1982) 292 SE2d 798, 808.)

Hence, even though an instruction closely follows the exact words of a statute, it will be erroneous if it "fails to furnish such exposition of the meaning and intent of the law as is demanded by the peculiar facts and circumstances of the case." (Cooper, KENTUCKY INSTRUCTIONS TO JURIES 1.13 [Conformity Of Instructions To Statute And Indictment] (Anderson, 4th ed. 1999).)

In sum, instruction in the language of the statute is not proper if "reasonable men might differ as to the construction of the statute" or if use of the statutory language would delegate to the jury the function of statutory interpretation which instead belongs to the court. (People v. Thomas (CA 1945) 25 C2d 880, 895 [156 P2d 7].)

See also NCJIC 3.2.1 [Province Of The Court To Interpret Statute And Apply It To The Facts].

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

RESEARCH NOTES:

See generally, NCJIC 305.12.1 [Language/Drafting Of Instructions].

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5.2.2 Statute Should Not Be Read Or Paraphrased To The Jury

PRACTICE NOTE: Some pattern instructions recommend that the court read the material parts of the statute that the defendant is charged with violating. "But like indictments, statutes may contain legal jargon not easily understandable by lay jurors, and often they are drafted broadly to cover a number of ways in which a given offense may be committed, some or most of which may not be material in a particular case...[T]herefore [the 6th Circuit] does not recommend reading or paraphrasing the applicable statute." (6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 2.02 [Definition Of The Crime], commentary (1991).)

In New York a statute specifically prohibits giving "copies of the text of any statute" to a deliberating jury without the consent of the parties. Accordingly, it was error to submit the written jury instructions to the deliberating jury over the objection of the defendant. (See People v. Johnson (NY 1993) 81 NY2d 980, 981.)

RESEARCH NOTES:

See generally, NCJIC 305.12.1 [Language/Drafting Of Instructions].

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5.2.3 Instruction Should Not Refer To Specific Code Section Defendant Is Charged With Violating

PRACTICE NOTE: Some pattern instructions recommend that the trial court provide the jury with the citation to the particular code or statute which the defendant is charged with violating. (See, e.g., CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 17.28.2 [Willful Refusal To Take Or Complete Tests Regarding Driving Under The Influence]; 16.500 [Interference With Civil Rights -- Threat Of Force To Person]; 16.280 [Disturbing The Peace -- College]; 16.164 [Unlawful Sexual Intercourse -- Defined]; 16.150 [Failure To Provide] (West, 6th Ed. 1996).) "The apparent reason for this is to impress the jury with the fact that what the defendant is charged with is a crime. But it is questionable whether the numerical citation is necessary to achieve this purpose. For this reason, ...[the 6th Circuit] does not recommend that the numerical citation be included. Instead, the instruction simply tells the jury that federal law makes what the defendant is accused of a crime." (6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 2.02 [Definition Of The Crime], commentary (1991).)

RESEARCH NOTES:

See generally, NCJIC 305.12.1 [Language/Drafting Of Instructions].

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5.2.4 When Jury Expresses Lack Of Understanding Of Term With A Common Meaning

PRACTICE NOTE: While a trial court normally 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 NCJIC 3.2.6 [Duty To Define Terms with Specialized/Technical Meaning].)

However, if the jury expresses a lack of such "common understanding", the court's underlying obligation to assure that the jury understands its duties (see People v. Kirkpatrick (CA 1994) 7 C4th 988, 1025 [30 CR2d 818], Mosk, concurring) suggests that the term should be further defined.

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

See also NCJIC 285.3.2 [Duty To Eliminate Juror Confusion].

RESEARCH NOTES:

See generally, NCJIC 305.12.1 [Language/Drafting Of Instructions].

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5.2.5 Language From Appellate Court Opinions

PRACTICE NOTE: Although language from appellate opinions may be useful in jury instructions in some cases, there is no general rule entitling litigants in lawsuits over disability policies to such instructions as matter of course. (See e.g., Ames v. Provident (FL 1994) 942 FSupp 551, 557.)

Language taken verbatim from an appellate court decision may be deemed a correct statement of the law. (People v. Jones (CA 1971) 19 CA3d 437, 447 [96 CR 795]; see also NCJIC 1.4.6 [Model Proposed Instructions On Published Opinions]; and NCJIC 5.2.5 [Language From Appellate Court Opinions].) Such language is, however, inappropriate for a jury instruction if it states a standard of appellate review (People v. Lucero (CA 1988) 44 C3d 1006, 1021 [245 CR 185]); if it serves as a judicial comment on the evidence (People v. Harris (CA 1989) 47 C3d 1047, 1089 fn 31 [255 CR 352]); or if it merely restates issues which are fully covered by other instructions. (People v. Adams (CA 1987) 196 CA3d 201, 204 [241 CR 684]; Delos v. Farmers Ins. (CA 1979) 93 CA3d 642, 656 [155 CR 843] [judicial opinions are not written as jury instructions and may be notoriously unreliable as such]; Clohessy v. Wieler (VA 1995) 462 SE2d 94, 98 [trial court's instruction on issue of plaintiff pedestrian's contributory negligence was erroneous and prejudicial inasmuch as it introduced principle of remote cause and used language that could have confused and misled jury to prejudice of driver who struck pedestrian]; Herr, Annotated Manual for Complex Litigation (West, 3rd ed. 1999) § 22.431, p. 160 ["Instructions phrased in the language of appellate opinions are not likely to be meaningful to jurors"]; (UNIFORM CRIMINAL JURY INSTRUCTIONS (OREGON), UCrJI User’s Guide I-C (G-4, 10/94) (Oregon State Bar, 1998).)

RESEARCH NOTES:

See generally, NCJIC 305.12.1 [Language/Drafting Of Instructions].

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5.2.6 Instructions Approved By The Reviewing Court

PRACTICE NOTE: Obviously, instructional language which is specifically approved by the reviewing court is a valid source of instruction language. (See e.g., People v. Wharton (CA 1991) 53 C3d 522, 569-71 [280 CR 631]; People v. Gonzales (CA 1990) 51 C3d 1179, 1222-23 [275 CR 729].)

However, even if language is expressly approved, such approval is not necessarily binding in another case with different circumstances. (See e.g., 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]; NCJIC 1.3.8 [The Trial Judge Retains Broad Discretion To Modify Or Supplement Pattern Instructions].)

See also NCJIC 1.4.6 [Model Proposed Instructions On Published Opinions].

See also NCJIC 5.2.5 [Language From Appellate Court Opinions].

RESEARCH NOTES:

See generally, NCJIC 305.12.1 [Language/Drafting Of Instructions].

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5.2.7 Reference To Specific People Or Facts

PRACTICE NOTE: While pattern instructions are "properly neutral and objective," in certain circumstances "clarity requires that they be made to refer specifically to the facts before the court." (People v. Rollo (CA 1979) 20 C3d 109, 123 fn 6 [141 CR 177]; see also State v. Theriault (CN 1995) 663 A2d 423, 426 [trial court's reference in instruction on witness credibility to "a previous felony conviction," rather than to witness' prior convictions for larceny, forgery, and narcotics violations was harmful error; witness' credibility was crucial to state's case].)

Indeed, most standard pattern instruction committees recognize the need to tailor the instructions to each specific case. (See NCJIC 1.3.6 [The Instruction Committees Themselves Recognize The Need To Look Beyond The Pattern Instructions].)

But see NCJIC 5.2.13 [Including Victim's Name In Pattern Instruction].

RESEARCH NOTES:

See generally, NCJIC 305.12.1 [Language/Drafting Of Instructions].

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5.2.8 Impropriety Of Gender Bias By Use Of Masculine Pronouns

PRACTICE NOTE: Particular care should be given to utilizing the correct gender pronouns in jury instructions relating to self defense, etc., due to the personal nature of such defenses. (See (UNIFORM CRIMINAL JURY INSTRUCTIONS (OREGON), UCrJI 1107, comment [Affirmative Defense -- Defendant’s Burden Of Proof] (Oregon State Bar, 1998); see also Probst v. State (DE 1988) 547 A2d 114, 120 [incorrect use of masculine gender pronouns in accomplice liability instruction, regarding offense for which alleged principal was male and alleged accomplice was female]; State v. Hennum (MN 1988) 428 NW2d 859, 867 [reasonable person instruction should be gender neutral, so that the jury might not be misled into believing that the reasonable person is a male]; State v. Wanrow (WA 1977) 559 P2d 548, 559 [woman defendant's right to equal protection of the law was violated in second-degree murder and first-degree assault trial by instruction on self defense that suggested, by persistent use of male gender, that woman's conduct in defending herself be measured against that of a reasonable male finding himself in the same circumstances].)

Techniques for avoiding confusion or gender bias based on use of pronouns suggested by the Wisconsin Instruction Committee (WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal [Comment: Gender Neutral Language] comment 5, p. 3 (University of Wisconsin Law School, 1999) include the following:

A. Rewrite the sentence to make the pronoun unnecessary.

B. Substitute nouns for pronouns. Repeating the name or title instead of using a pronoun avoids the
need for the pronoun and adds to clarity as well.

C. Substitute plural pronouns for singular pronouns. Using "witnesses...their" in place of "witness...his"
is an example.

D. Substitute gender neutral pronouns. For example, using "one" in place of "his" or "her." However,
although this is grammatically correct it may make it more difficult to understand.

E. Use gender neutral terms. For example, use "police officer" instead of "policeman."

RESEARCH NOTES:

See generally, NCJIC 305.12.1 [Language/Drafting Of Instructions].

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5.2.9 Comment On Credibility Of Specific Witness

PRACTICE NOTE: "It is improper... for the court to single out a particular witness in an instruction, since by so doing, the court charge becomes a comment on how the evidence should be considered, rather than a general instruction on a defense theory. [Citations.]" (People v. Harris (CA 1989) 47 C3d 1047, 1099 [255 CR 352]; see also Patrick v. State (IN 1987) 516 NE2d 63, 65 [trial court should not single out a particular witness or group of witnesses in an instruction]; Southeastern Greyhound Lines, Inc., v. Groves (TN 1940) 136 SW2d 512, 518 [an instruction embodying trial court's comments concerning perjury was reversible error, where jury must have understood to which witness the instruction referred].)

See also NCJIC 1.4.7 [Avoid Argumentative Instructions].

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

RESEARCH NOTES:

See generally, NCJIC 305.12.1 [Language/Drafting Of Instructions].

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5.2.10 Improper To Use Facts Of Reported Cases To Illustrate Jury Instructions

PRACTICE NOTE: The case against the defendant should be determined solely on the facts of the case. It is error to use facts of reported cases as illustrations in the instructions to the jury since a slight variation in the factual content of the cases might mislead the jury. The jury should be left free to perform its fact finding function. (Hill v. State (GA 1945) 36 SE2d 191, 193 [error to allow prosecutor to read to the jury, in concluding argument, the facts of reported cases, and argue from such decisions that the accused is guilty]; People v. Hommel (NY 1977) 361 NE2d 1020, 1021 [reversible error where judge read headnote which set forth strikingly similar set of facts and stated that reviewing court had held that these facts were sufficient to support finding of criminal negligence].)

See also NCJIC 6.2.9 [Hypotheticals Must Be Representative Of All Theories And Issues].

RESEARCH NOTES:

See generally, NCJIC 305.12.1 [Language/Drafting Of Instructions].

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5.2.11 Identifying The Party Who Has The Burden Of Proof

PRACTICE NOTE: It is error to instruct the jury regarding proof of a fact without identifying the party bearing the burden and the standard of proof. (See e.g., Government of Virgin Islands v. Smith (3rd Cir. 1991) 949 F2d 677, 679 [court's failure to instruct jury on burden of proof on issue of self defense constituted plain error]; U.S. v. Solano (9th Cir. 1993) 10 F3d 682, 684; State v. Peterson (NM 1998) 956 P2d 854, 857 ["once a defendant introduced some evidence of lawfulness, the court is under a duty to instruct on the state's burden to prove unlawfulness beyond a reasonable doubt"]; People v. Simon (CA 1995) 9 C4th 493, 500-01 [37 CR2d 278] [as to defense theories, the trial court is required to instruct on who has the burden and the nature of that burden]; State v. Houston (WV 1996) 475 SE2d 307, 320.)

See also NCJIC 250.4 [Defenses And Defense Theories: Burden Of Proof On Prosecution].

See also NCJIC 253.4.3 [Burden Of Proof].

See also NCJIC 254.1.2 [Duress/Coercion: Burden Of Proof].

See also NCJIC 255.3.5 [Heat Of Passion/Hot Blood: Burden Of Proof].

See also NCJIC 255.4.3 [Imperfect Self Defense: Burden Of Proof].

See also NCJIC 256.6.1.10 [Voluntary Intoxication: Instruction as to Prosecution’s Burden of Proof].

See also NCJIC 256.9.2 [Unconsciousness: Prosecution's Burden Of Proof].

See also NCJIC 257.3.3 [Entrapment: Burden Of Proof].

See also NCJIC 257.4.3 [Entrapment By Estoppel Or Equitable Estoppel: Burden Of Proof].

See also NCJIC 257.6.2 [Incompetence To Stand Trial: Burden Of Proof].

See also NCJIC 257.11.2 [Venue: Burden On Prosecution].

See also NCJIC Chapter 270 [Burdens And Standards Of Proof].

RESEARCH NOTES:

See generally, NCJIC 305.12.1 [Language/Drafting Of Instructions].

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5.2.12 Capitalization Of "Court" And "Jury"

PRACTICE NOTE: Most general instructions describing the function and duties of the Court and Jury attempt to convey the concept that the Court and Jury are distinct and each is supreme in its own domain. That is, the Court is the judge of the law and the Jury is the judge of the facts. Accordingly, the written form of any such instruction should avoid capitalizing the word "Court" without also capitalizing the word "Jury". (See WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 1.01 [Advance Oral Instruction-Introductory] (West, 2nd ed. 1994) ["Jury" has been capitalized to make it comparable to "Court"].)

RESEARCH NOTES:

See generally, NCJIC 305.12.1 [Language/Drafting Of Instructions].

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5.2.13 Including Victim's Name In Pattern Instruction

PRACTICE NOTE: Although it is proper to include the name of the victim in a pattern instruction, it may or may not be necessary depending on the charge. (See e.g., State v. Plano (WA 1992) 838 P2d 1145, 1148 [name of victim not essential element of assault].)

Additionally, the identity of the victim could be an issue if there is a variance between the charges and proof. (See NCJIC Chapter 40 [Variance Between Pleading And Proof].)

RESEARCH NOTES:

See generally, NCJIC 305.12.1 [Language/Drafting Of Instructions].

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5.2.14 Use Of The Term "Unlawful" In A Jury Instruction Is Ambiguous

PRACTICE NOTE: The term "unlawfully" is ambiguous and begs the question because the statute at issue should prescribe illegality within its own terms. When the term "unlawfully" is used in a jury instruction it’s just that there must be some other law which makes the conduct illegal. (See e.g., REVISED ARIZONA JURY INSTRUCTIONS (CRIMINAL), RAJI 17.03 [Arson Of Property Or Structure] (CLE State Bar of Arizona, 1996).) Hence, reference to the term "unlawfully" should be avoided in the instruction and, instead, the basis for the illegality should be spelled out in the instruction or elsewhere in other instructions.

RESEARCH NOTES:

See generally, NCJIC 305.12.1 [Language/Drafting Of Instructions].

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5.2.15 Use of the Term "Engaged In" Is Unclear

PRACTICE NOTE: The term "engaged in" fails to require specific commission of the necessary act. The term "engage" means "to participate or cause to participate, involve." To "participate" means to "take part, join or share with others." (The American Heritage Dictionary (2nd ed. 1983) pp. 140, 245, 500.) Thus, the term "engages in" does not always convey to the jury that the defendant must have actually committed the act. For example, the phrase "to engage in conduct constituting an offense" is less clear to the jury than the phrase "do something which is a crime" or "commit a crime." (See e.g., REVISED ARIZONA JURY INSTRUCTIONS (CRIMINAL), RAJI 18.04 fn 4 [Theft By Extortion] (CLE State Bar of Arizona, 1996).) This was also implicitly recognized by the CALJIC Committee in California when it replaced the term "engages" with "commits" in many of its instructions in 1997. (CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 10.13, 10.15, 10.22, 10.23, 10.25, 10.26 (West, 6th Ed. 1996) [term "engage" changed to "commit"].)

RESEARCH NOTES:

See generally, NCJIC 305.12.1 [Language/Drafting Of Instructions].