THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
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 VOLUME 3 - CHAPTER 16
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16.20 Retrial

    16.20.1 Needless Reference To Previous Trial Is Improper
    16.20.2 Cautionary Instruction Regarding Previous Trial

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
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 VOLUME 3 - CHAPTER 16

PRACTICE NOTE: See Holmgren v. U.S. (1910) 217 US 509, 522 [30 SCt 588; 54 LEd2d 261] [reference to new trial after former conviction].

See also NCJIC 16.20.2 [Cautionary Instruction Regarding Previous Trial].

See also 8th Circuit Model Jury Instructions - Criminal 2.20.

See also 9th Circuit Model Jury Instructions - Criminal 2.14.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 14.

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
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VOLUME 3 - CHAPTER 16

RATIONALE: When the jurors learn that the case was previously tried they may improperly speculate that the defendant was convicted and improperly rely on that prior verdict in reaching their verdict during the trial.

    When reference to the former trial cannot be avoided in the retrial, it may be appropriate to caution the jury not to speculate as to the reason for the retrial. (See People v. Berger (NY 1996) 653 NYS2d 461, 463 [court instructed jury not to speculate about "why the case is being tried now or whether the defendant is in custody and what the purpose of that is or the circumstance is"]; People v. Corbo (NY 1962) 234 NYS2d 662, 665 fn 2.)

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

USE NOTE: Instruction on the previous trial should only be given if the first trial will unavoidably be mentioned before the jury in the second trial and the defense agrees that the instruction should be given. (See Arthur v. Bordenkircher (4th Cir. 1983) 715 F2d 118, 119 [counsel ineffective for consenting to instruction that stated defendant had been tried before and the conviction had been reversed on appeal]; Carsey v. U.S. (DC Cir. 1967) 392 F2d 810, 812 [fair trial most likely achieved if judge gives cautionary instruction at outset of trial, assuming first trial will have to be mentioned].)

BRIEFING AVAILABLE: Click here. [Brief Bank # B-902]. 

See 1st Circuit Pattern Jury Instructions - Criminal 1.03.

See also 8th Circuit Model Jury Instructions - Criminal 2.20.

See also 9th Circuit Model Jury Instructions - Criminal 2.14.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 14.

    You may hear reference to a previous trial of this case. A previous trial did occur. But the defendant and the government are entitled to have you decide this case entirely on the evidence that has come before you in this trial. You should not consider the fact of a previous trial in any way when you decide whether the government has proven, beyond a reasonable doubt, that the defendant committed the crime.

[Source: 1st CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.03 [Previous Trial] (1998).]

    You have heard evidence that the defendant has been tried before. Keep in mind, however, that you must decide this case solely on the evidence presented to you in this trial. You are not to consider the fact of a previous trial in deciding this case.

[Source: 9th CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 2.14 [Defendant’s Previous Trial] (2000).]

    During the course of this trial, you have heard that the defendant was on trial before. That is true. The defendant and the government are entitled, however, to have you decide this case entirely on the evidence that has come before you in this trial. You should not consider the fact of a previous trial in any way when you decide whether the government has proved beyond a reasonable doubt, that the defendant committed the crime.

[Source: Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS Inst. No. 14 [Defendant’s Previous Trial: Jury Not To Consider] (1988).]

    The defendant has been tried before.  However, this fact must not enter into or influence your deliberations in any way. 

[Cf. CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 1.06 [Retrial of Case] (Bar Association of the District of Columbia, 4th ed. 1993).]

    The case has been tried before.  It has been submitted to you in this second trial as a result of proper legal procedures.  The fact that there has been a previous trial, and the legal reasons why the case is being tried again, have no bearing whatever upon the issues presented to you or upon the decision you face.

    To you this is a new case, and you must treat and consider it as such. Do not speculate about the previous trial, nor allow it to affect your consideration of this case.

[Cf. Leventhal, Charges to the Jury and Requests to Charge in a Criminal Case (New York) 4:71 [General Instructions-Retrial] (West, 1999).]

    You have heard evidence that there was a previous trial of the defendant(s) for the crime(s) charged here. However, you must decide this case solely on the evidence presented to you in this trial.

    Do not consider the fact of a previous trial in any way when you decide if the prosecution has proved the defendant guilty beyond a reasonable doubt.

[Cf. SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL SDCL 4-1-6 (State Bar of South Dakota, 2000).]

    You have heard references to a previous trial of this case.  Do not in any manner consider this fact or speculate as to the reason why the case is being tried again.

[Cf. CRIMINAL JURY INSTRUCTIONS - NEW YORK, CJI 5.40 [Reference From Prior Trials] (The New York Office of Court Administration, 1983).]