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VOLUME 2 - CHAPTER 12
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12.2 Preliminary Instructions: Role Of Charging Document

    12.2.1 Preliminary Instructions: Charges And Burden Of Proof
    12.2.2 Charging Document Is Not Evidence
    12.2.3 Charging Document: No Reference To Grand Jury
    12.2.4 Charging Document: Explanation Of The Term "Information"
    12.2.5 Cautionary/Explanatory Instruction Re: Indictment Procedure

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RATIONALE: Many jurisdictions require that, before the opening statements of counsel, the court shall instruct the jury generally concerning its basic functions, duties, and conduct. One of the foremost duties of the jury is to presume that the defendant is not guilty of the charges brought by the prosecution. Hence, an instruction which sets forth the charges and the duty to presume the defendant not guilty of those charges may be appropriate as a preliminary instruction.

POINTS AND AUTHORITIES: See U.S. v. Maccini (1st Cir. 1983) 721 F2d 840, 843; see also 5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.01 [Preliminary Instructions] (2001); see also 11th Circuit PATTERN JURY INSTRUCTIONS - CRIMINAL Trial Instr. 2.2 [Preliminary Instructions Before Opening Statements (Long Form) (1997)]; O’Malley, Grenig & Lee FEDERAL JURY PRACTICE AND INSTRUCTIONS 10.01 [Opening Instruction] (West, 5th ed. 2000).

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.1].

See also A Manual On Jury Trial Procedures [3.3 Preliminary Instructions And Orientation Of The Jury: General Principles].

See also A Manual On Jury Trial Procedures [4.5A. Preliminary Charge And Final Instructions: Preliminary Charge To Jurors].

See also A Manual On Jury Trial Procedures [4.6A. Jury's Use Of Indictment (Criminal): Availability Of Indictment To Jury During Trial And Deliberations].

See also generally, NCJIC 305.16.8 [Preliminary And Introductory Instructions].

See 1st Circuit Pattern Jury Instructions - Criminal 1.01.

See also 1st Circuit Pattern Jury Instructions - Criminal 1.02.

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 INSTRUCTION # 1:

    This is a criminal case commenced by the (State) (Commonwealth) (United States), which I may sometimes refer to as "the prosecution" and sometimes as "the People," against defendant[s] _____________ [and] [_____________]. The case was initiated by way of an [information] [indictment], which [is summarized] [reads] as follows: [Here summarize or read the information or indictment.]

    You should understand that the [information] [indictment] is simply a charge by the prosecution to begin a case and that it is not, in any sense, evidence of the allegations it contains.

    The defendant[s] has [have] pleaded not guilty to the [information] [indictment]. [The defendant contends that [he] [she] is not guilty because [here insert the theory of defense, if requested.]]

    The prosecution has the burden or obligation of proving each of the essential elements of the crime[s] charged in the [information] [indictment] to you beyond reasonable doubt. This burden never shifts to the defendant even after the prosecution presents its evidence. The purpose of this trial is to determine whether or not the prosecution can meet this burden.

    I instruct you to presume that defendant ________________ is not guilty. [It would be beneficial at this point to instruct the jury generally as to the essential elements of the offense or offenses charged.]

[Adapted from 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL Trial Inst. 1.2. [The Charge-Presumption Of Innocence] (2000).]

    As you were told during the process of your selection, an indictment in a criminal case is merely the accusatory paper which states the charge or charges to be determined at the trial, but it is not evidence against the Defendant or anyone else. Indeed, the Defendant has entered a plea of Not Guilty and is presumed by the law to be innocent. The Government has the burden of proving a Defendant guilty beyond a reasonable doubt, and if it fails to do so you must find that Defendant not guilty... Proof beyond a reasonable doubt is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs.

[11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL Trial Inst. 2.2. [Preliminary Instructions Before Opening Statements (Long Form)] (1997).]

    I remind you that the defendant is presumed innocent and that the government must prove the guilt of the defendant beyond a reasonable doubt. The defendant does not have to prove his innocence. If the defendant decides to present evidence, the government may introduce rebuttal evidence.

[Adapted from 5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL Inst. 1 [General And Preliminary Instructions] (2001).]

    ... I take this occasion to state to the jury one of the fundamental principles of American jurisprudence, which is that the burden is upon the government in a criminal case to prove every essential element of every alleged offense beyond a reasonable doubt. That is, the burden is upon the government to prove guilt beyond a reasonable doubt. This burden never shifts throughout the trial.* The law does not require a defendant to prove his innocence or to produce any evidence. There is no burden on [the defendant] to produce any evidence.]

* But see NCJIC 6.2.20 [Avoiding Language That Burden Never "Shifts" To Defendant] for criticism of the "burden never shifts" language.

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RATIONALE: Without special instruction the jury may improperly assume that the charging document has some evidentiary weight since sufficient evidence to charge the defendant was presumably presented to the prosecutor who filed the charges.

POINTS AND AUTHORITIES: The jury should be instructed that the charging document is not in evidence and should not in any way be considered in reaching its verdict. (See 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 1.2 [The Charge-Presumption Of Innocence]] (2000); Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS Inst. No. 1 [Standard Preliminary Instruction Before Trial] ¶ 3, p. 2 (1988); see also Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 2:09. [Charge The Jury–Reading Indictment] (West, 1988) "Even the mere implication, in language of the charge, that there might be some circumstances in which the indictment could be considered as [evidence against the defendant], has been deemed sufficient for reversal...."; see also UNIFORM CRIMINAL JURY INSTRUCTIONS (OREGON), UCrJI 1001, comment [General Instructions-Introduction] (Oregon State Bar, 1998 ) ["The Committee suggests that the terms indictment and information not be used. The jury does not need to know whether the case was heard by the grand jury"].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.2; 7.3; 7.5].

See also A Manual On Jury Trial Procedures [3.3 Preliminary Instructions And Orientation Of The Jury: General Principles].

See also A Manual On Jury Trial Procedures [4.5A. Preliminary Charge And Final Instructions: Preliminary Charge To Jurors].

See also A Manual On Jury Trial Procedures [4.6A. Jury's Use Of Indictment (Criminal): Availability Of Indictment To Jury During Trial And Deliberations].

See also generally, NCJIC 305.16.8 [Preliminary And Introductory 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 8th Circuit Model Jury Instructions - Criminal 3.05.

See also 8th Circuit Model Jury Instructions - Criminal 3.06.

See also 8th Circuit Model Jury Instructions - Criminal 3.07.

See also 8th Circuit Model Jury Instructions - Criminal 3.08.

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

    The charge against the defendant is contained in the indictment. The indictment is simply the description of the charge made by the government against the defendant; it is not evidence of anything].

[Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS Inst. No. 1 [Standard Preliminary Instruction Before Trial] ¶ 3, p. 2. (1988).]

    This is a criminal case brought by the United States government. The government charges [or accuses] the defendant with [or of] _______. The charge against the defendant is contained in the indictment. The indictment is simply the description of the charge made by the government against the defendant; it is not evidence of anything.

[See 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 1.2 [The Charge-Presumption Of Innocence]] (2000).]

SAMPLE INSTRUCTION # 3:

    An indictment is merely a legal formality by which charges a crime and informs the defendant[s] of the charges against [him] [her] [them]. It is only an accusation and is proof of nothing. It is not evidence. 

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PRACTICE NOTE: While the jury must be informed that the charge is against the defendant, it should be of no concern to the jury how the charge came before the court.  Hence, the jury should not be advised that the charges were brought by a grand jury. (See State v. Calor (ME 1991) 585 A2d 1385, 1388; People v. Sallito (NY 1992) 589 NYS2d 66, 67; People v. Evans (NY 1978) 404 NYS2d 382, 383; see also UNIFORM CRIMINAL JURY INSTRUCTIONS (OREGON), UCrJI 1001, comment [General Instructions-Introduction] 10/95 (Oregon State Bar, 1998 ) ["The jury does not need to know whether the case was heard by the grand jury"].)

    "In almost any criminal case...the fact of the indictment has some emphasis. To the degree an uninstructed jury considers the matter, there is a real possibility that a charge leveled by a grand jury composed of its peers will weigh in the petit jury’s balance on the side of guilt." (U.S. v. Garcia (7th Cir. 1977) 562 F2d 411, 417.)

STRATEGY NOTE: If the jury does learn that the defendant has been indicted, a cautionary instruction may be appropriate. (See e.g., NCJIC 12.2.2 [Charging Document Is Not Evidence].  For additional samples see United States v. Steed (9th Cir. 1972) 465 F2d 1310, 1316-17; United States v. Garcia (7th Cir. 1977) 562 F2d 411, 416-17.)

See also A Manual On Jury Trial Procedures [3.3 Preliminary Instructions And Orientation Of The Jury: General Principles].

See also A Manual On Jury Trial Procedures [4.5A. Preliminary Charge And Final Instructions: Preliminary Charge To Jurors].

See also A Manual On Jury Trial Procedures [4.6A. Jury's Use Of Indictment (Criminal): Availability Of Indictment To Jury During Trial And Deliberations].

See also generally, NCJIC 305.16.8 [Preliminary And Introductory 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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RATIONALE: Without an instructional explanation the jury may be confused about the term "information" as used in the instructions.

POINTS AND AUTHORITIES: The term "information" in the context of a charging document is unfamiliar to most laypersons. In fact, it has been reported by trial judges that the term sometimes confuses jurors unless clarified. Hence, the instructions should make it clear that an information is merely a charging document. (See NCJIC 12.2.2 [Charging Document Is Not Evidence].)

See also A Manual On Jury Trial Procedures [3.3 Preliminary Instructions And Orientation Of The Jury: General Principles].

See also A Manual On Jury Trial Procedures [4.5A. Preliminary Charge And Final Instructions: Preliminary Charge To Jurors].

See also A Manual On Jury Trial Procedures [4.6A. Jury's Use Of Indictment (Criminal): Availability Of Indictment To Jury During Trial And Deliberations].

See also generally, NCJIC 305.16.8 [Preliminary And Introductory Instructions].

See 1st Circuit Pattern Jury Instructions - Criminal 1.01.

See also 1st Circuit Pattern Jury Instructions - Criminal 1.09.

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

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

See also 8th Circuit Model Jury Instructions - Criminal 1.09.

See also 9th Circuit Model Jury Instructions - Criminal 1.12.

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

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    12.2.5    Cautionary/Explanatory Instruction Re: Indictment Procedure

    However, because an indictment implies that the grand jury has made a judicial determination in the matter, special dangers may be present and, therefore, the jury should not be advised that the charges were made by the grand jury. (See NCJIC  12.2.3 [Charging Document: No Reference To Grand Jury].)

CAVEAT: Counsel will need to evaluate the efficacy of such a cautionary instruction in light of the concern that it may draw undue attention to the grand jury indictment. (See generally NCJIC 297.3.2 [Cautionary Or Limiting Instructions May Emphasize The Prejudicial Matter].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.2, 7.3, 7.5]

    See The Shellow Collection [Cautionary/Explanatory Instruction Re: Indictment Procedure].