THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
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 VOLUME 13 - CHAPTER 272
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272.2 Summation/Closing Argument: Right To Notice Of Instructions Before Argument

    272.2.1 Duty Of Court To Advise Counsel Before Summation/Closing Argument As To Which Instructions Will Be Given 
    272.2.2 Right To Readback Summation/Closing Argument When New Instructional Theory Presented After Argument
    272.2.3 Modification Of Written Instructions In Light Of Closing Argument

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
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 VOLUME 13 - CHAPTER 272   

    See NCJIC 2.3.1.5 [Duty Of Court To Advise Counsel Before Argument As To Which Instructions Will Be Given].

See generally NCJIC 305.19.9.2 [Summation/Closing Argument].

See Manual On Recurring Problems In Criminal Trials [1a. Right To Final Argument: General Principles].

See also Manual On Recurring Problems In Criminal Trials [2a. Control By Court].

See also Manual On Recurring Problems In Criminal Trials [3a. Time Limitations: General Principles].

See also A Manual On Jury Trial Procedures [3.19.1A. Closing Argument: In General].

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
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 VOLUME 13 - CHAPTER 272

PRACTICE NOTE: When the jury instructions are changed after the arguments of counsel, several potential constitutional rights of the defendant may be implicated. For example, if the new instruction presents a crime of which the defendant lacked notice, due process may be implicated (14th Amendment). (See Sheppard v. Rees (9th Cir. 1989) 909 F2d 1234, 1238; see also NCJIC 2.3.1.6 [New Or Additional Instructions After Argument].) Additionally, the rights to effective assistance of counsel and to argument to the jury (see Herring v. New York (1975) 422 US 853, 858 [95 SCt 2550; 45 LEd2d 593]) may be violated if the changed instruction unfairly prevented defense counsel from arguing the defense to the jury or substantially misled counsel in formulating and presenting arguments. (See U.S. v. Gaskins (9th Cir. 1988) 849 F2d 454, 458; see also Lankford v. Idaho (1991) 500 US 110 [111 SCt 1723; 114 LEd2d 173]; People v. Sanchez (CA 1978) 83 CA3d Supp 1, 7 [147 CR 850] [reversal required because defense counsel's credibility was destroyed when the trial court changed an intended instruction in open court in front of the jury and in the middle of defense counsel's closing argument].)

    Hence, if the instructions are changed there may be a right to reopen the argument and/or testimony. (See BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) § 131.101[4].)

    However, to avoid waiving such an error, it has been held that counsel must make a request to reopen closing argument and/or for a continuance. (See People v. Bishop (CA 1996) 44 CA4th 220, 235 [51 CR2d 629]; see also People v. Memro (CA 1995) 11 C4th 786, 869 [47 CR2d 219 [failure to ask to reopen waived error in instructing on uncharged felony murder theory].)

See generally NCJIC 305.19.9.2 [Summation/Closing Argument].

See Manual On Recurring Problems In Criminal Trials [4a. Permitting Reopening After Resting: General Principles].

See Manual On Recurring Problems In Criminal Trials [1a. Right To Final Argument: General Principles].

See also Manual On Recurring Problems In Criminal Trials [2a. Control By Court].

See also Manual On Recurring Problems In Criminal Trials [3a. Time Limitations: General Principles].

See also A Manual On Jury Trial Procedures [3.19.1A. Closing Argument: In General].

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

 VOLUME 13 - CHAPTER 272

PRACTICE NOTE: Federal Rule of Criminal Procedure 30 literally requires the judge to instruct in the language of the written requests which were submitted and agreed upon at the "close of the evidence. . . ." However, the judge is not required "to read slavishly and verbatim the unchanged text of written instructions prepared in advance." (United States v. Johnson, 683 F.2d 1187, 1189 (8th Cir. 1982).) "Rule 30 does not forbid a court's clarifying its instructions in light of the issues as they have been sharpened by the closing arguments, so long as a reasonable opportunity is given to object or request additional instructions." (Ibid.)