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VOLUME 2 - CHAPTER 12
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12.1 General Issues

    12.1.1 Should Jurors Be Instructed Prior To The Commencement Of The Trial?
    12.1.2 Specific Subjects Appropriate For Preliminary Instructions
    12.1.3 Preliminary Instructions Not A Substitute For Final Instruction

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VOLUME 2 - CHAPTER 12

    12.1.1    Should Jurors Be Instructed Prior To The Commencement Of The Trial?

RATIONALE: If jurors are not instructed until the end of the case, they may be confused and uncertain about the applicable rules, procedure and principles. Preliminary instruction may reduce juror confusion, promote juror understanding, and lay a common foundation for approaching the task at hand. Furthermore, instruction on trial processes helps jurors perform the specific duties with which they are charged, minimizing needless and distracting speculation about the course of the trial. Preliminary instruction on evidentiary or substantive legal issues may help jurors in understanding the evidence as it is presented.

POINTS AND AUTHORITIES: Many courts and commentators recognize the usefulness of preliminary instruction. (See e.g., 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 1 Introductory Comment [Preliminary Instructions] 1985 Rev. (2000) [the desirability of orienting the jury to the nature and scope of the trial]; see also O’Malley, Grenig & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 4.11 [Swearing Of Panel And Preliminary Instructions] p. 185 (West, 5th ed. 2000) [preliminary instructions must be repeated at end of trial]; Herr, Annotated Manual for Complex Litigation (West, 3rd ed, 1999) § 22:432, pp. 160-61 [need for guidance on factual and legal issues in lengthy trials]; Schwarzer, "Reforming Jury Trials" 132 F.R.D. 575, 583 (1991) [the need for procedural guidance]; Prettyman, "Jury Instructions--First or Last?" 46 ABAJ 1066 (1960); American Bar Association, ABA Standards for Criminal Justice Discovery and Trial by Jury (ABA, 3rd ed., 1996) §15-3.6(e).)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.2; 7.5].

CAVEATS:

    1.    The court should make it clear that preliminary instructions are not for the purpose of early deliberation or for the formation of premature opinions. (See FORECITE National™ 12.1.3 [Preliminary Instructions Not A Substitute For Final Instruction] see also FORECITE National™ 12.3.10 [Preliminary Instructions: Admonition That Final Instructions Control].)

    2.    The court should make it clear that final instructions control. (See FORECITE National™ 2.3.2.3 [Mid-Trial Instructions: Admonition That Final Instructions Control]; see also FORECITE National™ 12.3.10 [Preliminary Instructions: Admonition That Final Instructions Control].)

    3.    The jury should understand that any preliminary instructions regarding substantive elements or defenses are simply to help them understand the testimony. The jurors must not form or attempt to form any opinions or conclusions regarding the evidence even in the privacy of their own minds until commencement of deliberations. (See FORECITE National™ 16.2.1.4 [Jurors Must Not Form Opinions Prior To Deliberations, Even In Juror's Own Mind].)

RESEARCH NOTES:

See A Manual On Jury Trial Procedures [3.3.1 Preliminary Instructions And Orientation Of The Jury: General Principles].

See also A Manual On Jury Trial Procedures [4.3A. Preliminary Charge And Final Instructions: Preliminary Charge To Jurors].

See also generally, FORECITE National™ 305.16.8 [Preliminary And Introductory Instructions].

RELATED FEDERAL MODEL INSTRUCTIONS:

See 1st Circuit Pattern Jury Instructions - Criminal 1.01.

See also 5th Circuit Pattern Jury Instructions - Criminal 1.01.

See also 8th Circuit Model Jury Instructions - Criminal 1.01.

See also 11th Circuit Pattern Jury Instructions - Criminal TI 2.1.

SAMPLE INSTRUCTIONS: Comprehensive sample instructions are included in FORECITE National™ 12.4.1 [Samples Of Composite Preliminary Instructions].

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VOLUME 2 - CHAPTER 12

    12.1.2    Specific Subjects Appropriate For Preliminary Instructions

A.    Checklist of General Topics For Preliminary Instruction

    It has been recognized that preliminary instructions should typically cover the following subjects [Source: Herr, Annotated Manual for Complex Litigation, 3rd (1999) § 22.432, p. 161]:

    !    "Preliminary statement of legal principles and factual issues. The preliminary instructions may summarize the key factual issues, including a statement of the facts and the parties' major contentions (which may be drafted jointly by the parties), and explain briefly the basic legal issues and principles, such as the elements of claims and defenses to be proved. The court should emphasize that these instructions are preliminary -- that no effort is made to cover all of the issues or principles -- and that deliberations will be governed by the final instructions to be given at the conclusion of the case. Since one purpose of these instructions is to prepare jurors for opening statements, they are usually given first, with counsel permitted to refer to them in their opening statements. The judge may, however, defer instructions until after opening statements or give supplemental preliminary instructions at that time."

CAVEAT: The jury should understand that any preinstruction regarding substantive elements or defenses is simply to help them understand the testimony. The jurors must not form or attempt to form any opinions or conclusions regarding the evidence even in the privacy of their own minds until commencement of deliberations. (See FORECITE National™ 16.2.1.4 [Jurors Must Not Form Opinions Prior To Deliberations, Even In Juror's Own Mind].)

    !    "The conduct of the trial. Jurors should be informed of the course of the trial from opening statements to verdict, the methods by which evidence is presented, and the procedure for raising and resolving objections. In some cases, such as those involving charges of conspiracy, the court may wish to inform the jury that cooperation among the litigants at trial has been urged by the court and should not be taken as evidence of concerted action with respect to the matters at issue in the litigation."

    !    "Schedule. In addition to the hourly and dairy schedule established for the trial of the case, jurors should be advised of any holidays or other planned recesses."

    !    "Precautions to prevent mistrial. The court should direct jurors not to discuss the case or communicate with trial participants. It should warn against exposure to publicity and attempts at independent fact-finding, such as viewing the scene of some occurrence or undertaking experiments or research."

    !    "Pretrial procedures. The judge should consider describing briefly the various discovery devices that have been used during the pretrial stage of the litigation, such as depositions, document production, and interrogatories. Not only will this information be helpful when such evidence is later introduced, but it also serves to explain why parties have possession of, or know about, various matters involving other persons."

    !    "The functions and duties of the jury. The instructions might also include such matters as the jury's role as fact-finder, the burden of proof, assessing the credibility of witnesses, the nature of evidence, including circumstantial evidence and the purpose of rules of evidence, and the jurors' need to rely on their recollection of testimony (including any special instructions about the use of juror notebooks, note taking, or questions). Most of these instructions should be repeated in the final jury charge, supplemented by any special explanations (such as use of convictions to impeach credibility) warranted by developments at trial or the use of special verdicts or interrogatories."

B.    Checklist Of Specific Subjects For Preinstruction

    There are a number of specific matters which may be appropriate to address in preliminary instructions. These include:

    1.    Introduction and Definition of Terms.

    2.    Instruction on Pre-Trial Procedures.

    3.    Pre-instruction on Basic Factual Issues.

    4.    Pre-instruction on Duties of Jury.

    5.    Duty to Presume Defendant Not Guilty.

    6.    Order of Trial.

    7.    Instruction on Schedule, Routine and Recesses.

    8.    Duty to Keep An Open Mind.

    9.    Defendant Need Not Testify or Present Evidence.

    10.    Exhibits Will Be Available.

    11.    Jury as Sole Judge of Witness Credibility.

    12.    Duty Not To Converse.

    13.    Duty Re: Statements of Counsel, Evidence Stricken, Instructions of Questioning, Stipulated Facts.

    14.    Trial Publicity.

    15.    No Independent Investigation Or View of the Scene.

    16.    Duty to Report Juror Misconduct or Personal knowledge of Fact in Controversy.

    17.    Duty Not to Receive Payment for Information About the Trial.

    18.    Juror Note Taking.

    19.    Right to Readback of Testimony, Written Instructions, Etc.

    20.    Trial Transcripts Not Available, Requirement that Jurors Rely on Individual and Collective Memory.

    21.    Juror Submission of Questions Regarding Testimony.

    22.    Explanation of Delay; Discussions Outside the Presence of the Jury Do Not Waste the Jury’s Time.

    23.    Juror Duty Not to Impair Faculties with Alcohol.

CAVEAT: Other instructions not included in this checklist may be appropriate depending on the circumstances.

RESEARCH NOTES:

See A Manual On Jury Trial Procedures [3.3.1 Preliminary Instructions And Orientation Of The Jury: General Principles].

See also A Manual On Jury Trial Procedures [4.3A. Preliminary Charge And Final Instructions: Preliminary Charge To Jurors].

See also generally, FORECITE National™ 305.16.8 [Preliminary And Introductory Instructions].

RELATED FEDERAL MODEL INSTRUCTIONS:

See 1st Circuit Pattern Jury Instructions - Criminal 1.01.

See also 5th Circuit Pattern Jury Instructions - Criminal 1.01.

See also 8th Circuit Model Jury Instructions - Criminal 1.01.

See also 11th Circuit Pattern Jury Instructions - Criminal TI 2.1.

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VOLUME 2 - CHAPTER 12

    12.1.3    Preliminary Instructions Not A Substitute For Final Instruction

PRACTICE NOTE: Preliminary or mid-trial instructions are not a substitute for final instructions. Instructions given at the outset of the trial, or at mid-trial, should also be included in the final instructions, unless there is sufficient reason not to do so. (See State v. Marquez (AZ 1983) 660 P2d 1243, 1247-49; see also 8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 1.0 [Preliminary Instructions Before Opening Statements], introductory comment; 2.0 [Instructions For Use During Trial] comment (2000); 11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL Trial Inst. 2.2 [Preliminary Instructions Before Opening Statements (Long form)] (1997).)

    Preliminary instructions prepare a jury for trial and constitute an orientation by which the jury is made to understand its duties and responsibilities. (State v. Marquez (AZ 1983) 660 P2d 1243, 1249.) Instructions given just before the jury deliberates will likely make more of an impression than those given prior to the presentation of evidence. (See State v. Jackson (AZ 1985) 695 P2d 742, 743.) "A few extra minutes to reinstruct on basic legal principles is the modest cost of this additional safeguard to the rights of an accused." (State v. Johnson (AZ 1992) 842 P2d 1287, 1289.)

    See also FORECITE National™ 12.3.10 [Preliminary Instructions: Admonition That Final Instructions Control].

    See also FORECITE National™ 2.3 [Timing Of Instructions (When To Instruct)].

    See also FORECITE National™ 2.3.1.3 [Failure To Repeat Preliminary Instructions At End Of Trial].

RESEARCH NOTES:

See A Manual On Jury Trial Procedures [3.3.1 Preliminary Instructions And Orientation Of The Jury: General Principles].

See also A Manual On Jury Trial Procedures [4.3A. Preliminary Charge And Final Instructions: Preliminary Charge To Jurors].

See also generally, FORECITE National™ 305.16.8 [Preliminary And Introductory Instructions].

RELATED FEDERAL MODEL INSTRUCTIONS:

See 1st Circuit Pattern Jury Instructions - Criminal 1.01.

See also 5th Circuit Pattern Jury Instructions - Criminal 1.01.

See also 8th Circuit Model Jury Instructions - Criminal 1.01.

See also 11th Circuit Pattern Jury Instructions - Criminal TI 2.1.