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    279.1 Jury Must Not Consider Penalty, Punishment Or Sentence
    279.2 Jury Not To Consider Penalty: Instruction May Increase The Risk That Penalty Will Be Considered
    279.3 Consideration Of "Punishment": Prohibited Except To "Make You Careful"
    279.4 Jury Not To Consider Penalty: Modification When Witness Testifies Pursuant To Bargain With Prosecution
    279.5 Jury Not To Consider Consequences Of Verdict: Strategic Consideration
    279.6 Instruction On Consequences Of Verdict Not Unconstitutional
    279.7 Improper To Instruct Jury As To Relative Seriousness Of Greater And Lesser Offense
    279.8 Improper to Use The Term "Lesser Offense"
    279.9 Jury Not To Consider Penalty Or Punishment: Relevance Of Punishment To Entrapment
    279.10 Voir Dire/Jury Not To Consider Penalty: Whether Jury Should Be Informed That Noncapital Murder Case Does Not Involve The Death Penalty
    279.11 Jury Consideration Of Penalty, Punishment Or Consequences Of Verdict: Federal Circuit Model Instructions And Notes
    279.12 Whether Jury Should Be Informed When The Prosecution Is Not Seeking The Death Penalty

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RATIONALE: Without a cautionary instruction the jury may improperly consider the potential penalty in deciding guilt.

POINTS AND AUTHORITIES: Jurors should not consider potential punishment or penalty when deciding whether or not the defendant is guilty. As the United States Supreme Court explained in Shannon v. United States (1994) 512 US 573, 579 [114 SCt 2419; 129 LEd2d 459] that:

    It is well established that when a jury has no sentencing function, it should be admonished to reach its verdict without regard to what sentence might be imposed. The principle that juries are not to consider the consequences of their verdicts is a reflection of the basic division of labor in our legal system between judge and jury.... Information regarding the consequences of a verdict is therefore irrelevant to the jury's task. Moreover, providing jurors sentencing information invites them to ponder matters that are not within their province, distracts them from their fact finding responsibilities, and creates a strong possibility of confusion.

CAVEAT 1: There are circumstances where such instruction should either not be given or be modified. (For example: the penalty phase of capital case; when special consideration has been given to prosecution informant or witness; an insanity trial when the jury has been instructed on consequences of not guilty by reason of insanity verdict.)

CAVEAT 2: An instruction not to consider penalty or punishment may actually increase the risk that the jury will do so. (See NCJIC 279.2 [Jury Not To Consider Penalty: Instruction May Increase The Risk That Penalty Will Be Considered].)

STRATEGY NOTE: In some situations the defense may want the jury to consider penalty such as Three Strikes cases where penalty is especially harsh in relation to the offense. (See NCJIC 120.3.3.2 [Instructing The Jury Regarding Defendant's Liability For Three Strikes Sentencing].) In such cases the strategic concerns are how to let the jury know about the harshness of the penalty with the hope that it will use its power of nullification. (Ibid.)

    See also NCJIC 303.2.1 [Death Penalty: Admonition To Refrain From Considering Penalty During Guilt Phase].

See generally, NCJIC 279.11 [Jury Consideration Of Penalty, Punishment Or Consequences Of Verdict: Federal Circuit Model Instructions And Notes].

    If you find the defendant guilty, it will then be my job to decide what punishment should be imposed. In considering the evidence and arguments that will be given during the trial, you should not guess about the punishment. It should not enter into your consideration or discussions at any time.

[Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS 4 [Jury Not To Consider Punishment] (1988).]

    Do not, at any time, consider or speculate about sentencing or punishment.  Such matters must not be considered during your deliberations or at any other time during your service as a juror in this case.  If you render a verdict of guilty, I will impose sentence in accordance with the law -- the jury has no function regarding sentence or punishment.

[See CRIMINAL JURY INSTRUCTIONS - NEW YORK, CJI 6.30 [Jury Not To Consider Punishment] (New York Office of Court Administration, 1983).]

    You are not to be concerned with any punishment that may or may not be imposed should you return a verdict in this case.  Do not consider whether punishment may result from conviction except insofar as it may tend to make you careful.

[See WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 1.02 [Introductory Instruction] ¶ 10 (West, 2nd ed. 1994).]

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PRACTICE NOTE: Most standard pattern instructions admonish the jury not to consider punishment or penalty. (See e.g.,  Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS 4 [Jury Not To Consider Punishment] (1988); CRIMINAL JURY INSTRUCTIONS - NEW YORK, CJI 6.30 [Jury Not To Consider Punishment] (New York Office of Court Administration, 1983); WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 1.02 [Introductory Instruction] ¶ 10 (West, 2nd ed. 1994).) However, it has been suggested that such an instruction risks raising the jury's consciousness regarding penalty or punishment. (See e.g., 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 7.3 [Use Of Notes] (2000) [the jury should only be instructed not to consider punishment when the judge believes that the jurors may have received information about the punishment]; see also NCJIC 279.5 [Jury Not To Consider Consequences Of Verdict: Strategic Consideration].)

    See also NCJIC 279.6 [Instruction On Consequences Of Verdict Not Unconstitutional].

See generally, NCJIC 279.11 [Jury Consideration Of Penalty, Punishment Or Consequences Of Verdict: Federal Circuit Model Instructions And Notes].

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RATIONALE: If the jury totally disregards the fact that the defendant will be punished if found guilty it may tend to be less careful in deciding the question of the defendant's guilt.

POINTS AND AUTHORITIES: WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 1.02 [Introductory Instruction] pp. 10-11, ¶ 10 (West, 2nd ed. 1994).

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

CAVEAT:  Improper emphasis of sentencing considerations may cause the jurors to take them into consideration even if they are instructed not to do so.  (See State v. Murphy (WA 1997) 937 P2d 1173, 1176; see also NCJIC 10.2.9 [Voir Dire/Jury Not To Consider Penalty: Whether Jury Should Be Informed That Noncapital Murder Case Does Not Involve The Death Penalty].

See generally, NCJIC 279.11 [Jury Consideration Of Penalty, Punishment Or Consequences Of Verdict: Federal Circuit Model Instructions And Notes].

    Jurors have nothing whatsoever to do with any punishment pr sentence which may be imposed on the defendant in the event of conviction.  The fact that punishment may follow conviction cannot be considered by you except insofar as it may tend to make you careful.

[See WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 1.02 [Introductory Instruction] ¶ 10 (West, 2nd ed. 1994).]

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RATIONALE: Without modification of the standard instruction not to consider penalty or punishment the jury may not understand that it must consider the fact that a witness received reduced punishment in exchange for testimony.

POINTS AND AUTHORITIES: Most standard pattern instructions generally admonish the jury not to consider punishment or penalty. However, such instructions are too broad in a case where the potential penalty facing a prosecution witness may bear on that witness' credibility. Accordingly, these instructions should be supplemented, upon request and when appropriate, to assure that the jury will fully consider the charges pending against the witness when evaluating the witness' credibility. (See e.g., Bradshaw v. Commonwealth (VA 1993) 429 SE2d 881, 884 [error to refuse to admit the complete details of the inducement received by the witness as part of the bargain with the prosecution]; see also People v. Pitts (CA 1990) 223 CA3d 606, 880-81 [273 CR 757] [issue recognized but not resolved]; HAWAII PATTERN JURY INSTRUCTIONS - CRIMINAL, HAWJIC 8.01 [Commentary] (West, 1998) [penalty or punishment instruction "may need modification" when the issue of guilt or punishment may be relevant to an issue, such as when testimony is provided pursuant to a plea agreement and the testifying witness has received a reduced penalty or punishment as inducement for his/her testimony].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.3; 6.7].

See generally, NCJIC 279.11 [Jury Consideration Of Penalty, Punishment Or Consequences Of Verdict: Federal Circuit Model Instructions And Notes].

    However, you are not precluded from considering the potential penalty facing any prosecution witnesses who had [charges pending] [were on probation] at the time of their testimony.

[Source: NCJIC.]

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PRACTICE NOTE: Instructing the jury that it is not to consider the consequences of its verdict risks raising the jury’s consciousness about the exact consequences they are being told to ignore. (See Alexander, MAINE JURY INSTRUCTIONS MANUAL 6-6 [Instruction 17-Consequences Of Verdict of No Concern] (Lexis, 1999).) Therefore, it may be appropriate to limit instructions to cases where consequences already have been injected into the case or where there is such reason to believe the jury concern about consequences may impact the jurors' deliberations.  (Ibid.; see also 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 7.4 [Jury Not To Consider Punishment] (2000) [jury should only be instructed to consider punishment when jury may have received information about punishment]; NCJIC 279.2 [Jury Not To Consider Penalty: Instruction May Increase The Risk That Penalty Will Be Considered].)

    Moreover, there are circumstances where such instruction should either not be given or be modified such as the penalty phase of capital case, when special consideration has been given to prosecution informant or witness, or an insanity trial when the jury has been instructed on consequences of not guilty by reason of insanity verdict.

    However, if such an instruction is given, two samples are the following:

    You should not concern yourselves with what happens after your verdict, whatever it is, so you need to confine yourself to the evidence as presented, follow the instructions and come up with your verdict and not concern yourselves with what might happen after your verdict is rendered. That's for the Court to take up after your verdict.

[Source: Kitze v. Commonwealth (VA 1993) 435 SE2d 583, 584-86.]

    Do not consider or speculate about what may happen after your verdict, whatever it is.  You must confine yourself to the evidence as presented, follow the instructions and come up with a verdict, if you can.  In other words, do not concern yourselves with what might happen after your verdict is rendered. That's for the Court to take up after your verdict.

[Source: Kitze v. Commonwealth (VA 1993) 435 SE2d 583, 584-86.]

See Wharton’s Criminal Procedure (West, 13th ed. 1989) § 474 [Instruction As To Possibility Of Pardon Or Parole].

See generally, NCJIC 279.11 [Jury Consideration Of Penalty, Punishment Or Consequences Of Verdict: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: In Shannon v. United States (1994) 512 US 573 [114 SCt 2419; 129 LEd2d 459] the United States Supreme Court held that federal courts are not required to instruct non-sentencing juries on the actual consequence of a "not guilty by reason of insanity" verdict. However, the Court did not hold that it would be unconstitutional to do so. Rather, the decision was primarily based on the fact that the federal statute governing the insanity defense did not authorize such an instruction. (Id. at 580-87.)

    It should also be remembered that the juror's improper belief that an insanity verdict will result in the release of the defendant may make the proceeding unfair. (See State v. Amini (OR 1988) 963 P2d 65, 70 [cross-examination as to whether the defendant would be confined if his mental defect defense succeeded could have influenced the jury to find the defendant guilty to avoid his early release back into society, thereby depriving him of a fair trial]; see also State v. Wall (OR 1986) 715 P2d 96, 98-99.)

See generally, NCJIC 279.11 [Jury Consideration Of Penalty, Punishment Or Consequences Of Verdict: Federal Circuit Model Instructions And Notes].

  VOLUME 13 - CHAPTER 279

    279.7    Improper To Instruct Jury As To Relative Seriousness Of Greater And Lesser Offense

RATIONALE: Reference to the different charges as "greater" or "lesser" offenses may cause the jury to consider the seriousness of the offenses in deciding whether or not the defendant is guilty.

POINTS AND AUTHORITIES: In Shannon v. U.S. (1994) 512 US 573, 584 [114 SCt 2419;129 LEd2d 459] the Supreme Court reaffirmed the general rule that jurors should not be informed regarding sentencing matters including "the sentencing range accompanying a lesser included offense." (See also NCJIC 279.1 [Jury Must Not Consider Penalty, Punishment Or Sentence].)

    However, many standard instructions expressly inform the jury that one offense is "more serious" than the other. (E.g., 11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL SI 10 [Lesser Included Offense] ¶ 1 (1997) ["In some cases the law which a defendant is charged with breaking actually covers two separate crimes -- one is more serious than the second, and the second is generally called a 'lesser included offense'"]; MICHIGAN CRIMINAL JURY INSTRUCTIONS 9.2 [Attempt As Lesser Offence] ¶ 1 (ICLE, 2nd ed. 1999) ["The defendant is charged with the less serious crime of attempted ___________"]; WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 1012 [First Degree Intentional Homicide; Adequate; Second Degree Intentional Homicide] para. 1 (University of Wisconsin Law School, 2000) [second degree intentional homicide "is a less serious degree of criminal homicide"].) Such instructions improperly invite the jury to base its determination of guilt on the seriousness of the offense (and presumably the greater or lesser punishment attached thereto) rather than whether or not the elements of the offense have been proven.

    Similarly, standard lesser included instructions, by use of the terms "lesser" and "greater" also inject improper considerations of penalty, punishment and verdict consequences into the case. Hence, it has been recognized that the terms "lesser offense" and "greater offense" "should not be in the instruction submitted to the jury." (ILLINOIS PATTERN JURY INSTRUCTIONS - CRIMINAL, IPI-Criminal 4th 2.01Q, note [The Charges Against The Defendant-Jury Is To Be Instructed On One Or More Charges Including Lesser Offenses-Jury Is Not To Be Instructed On The Insanity Defense-Jury Is Not To Be Instructed On The Guilty But Mentally Ill Verdict-jury Is Not To Be Instructed On Any Charges Other Than The Greater And Lesser Included Offenses] p. 50 (West, 4th ed. 2000).)

    Moreover, the term "lesser included offense" should be omitted from the jury instructions because it "may lead the jury to decide the issue by wrongly assuming that the lesser included offense may require a lesser burden of proof or carry a lesser sentence." (7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 2.02, Committee comment [Lesser Included Offense] (1999).)

    In sum, neither the titles nor text of the instructions should refer to the relative seriousness of the offenses or label the offenses as "greater" or "lesser."

    See also NCJIC 275.3.7 [Jury Should Consider Substantive Offense First Before Considering Enhancement].

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

See generally, NCJIC 279.11 [Jury Consideration Of Penalty, Punishment Or Consequences Of Verdict: Federal Circuit Model Instructions And Notes].

    The defendant[s] [is] [are] charged with the following offenses:

    (Insert alphabetical list of offenses alleged in the charging document without any reference indicating the relative seriousness of the offenses).

[Source: NCJIC.]

    The defendant is charged with the following offenses: ____________. 

[See ILLINOIS PATTERN JURY INSTRUCTIONS - CRIMINAL, IPI-Criminal 4th 2.01. [The Charges Against The Defendant] (West, 4th ed. 1996).]

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    See NCJIC 279.7 [Improper To Instruct Jury As To Relative Seriousness Of Greater And Lesser Offense].

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    279.9    Jury Not To Consider Penalty Or Punishment: Relevance Of Punishment To Entrapment

RATIONALE: Without modification of the standard instruction not to consider penalty or punishment the jury may not understand that it must consider sentencing liability in deciding whether the prosecution entrapped the defendant into committing an offense with a higher sentence.

POINTS AND AUTHORITIES: A defense theory of entrapment may be available if the police enticed the defendant into committing a more serious crime than he or she would otherwise have committed. (See NCJIC 257.3.7 [Sentencing Entrapment].) In such a case, the jury must necessarily consider the penalty or sentence involved in the case. Hence, the standard instruction admonishing the jury not to consider penalty may have to be modified when the defense theory of sentencing entrapment is raised. (See HAWAII PATTERN JURY INSTRUCTIONS - CRIMINAL, HAWJIC 8.01 commentary [Penalty Or Punishment Not To Be Discussed] (West, 1998) [penalty instruction "may need modification when the issue of punishment may be relevant to the defense of entrapment"].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.1].

See generally, NCJIC 279.11 [Jury Consideration Of Penalty, Punishment Or Consequences Of Verdict: Federal Circuit Model Instructions And Notes].

    However, you are not precluded from considering matters of penalty or sentencing in deciding the issue of entrapment.

[Source: NCJIC]

VOLUME 13 - CHAPTER 279

    See NCJIC 10.2.9 [Voir Dire/Jury Not To Consider Penalty: Whether Jury Should Be Informed That Noncapital Murder Case Does Not Involve The Death Penalty].

VOLUME 13 - CHAPTER 279

    279.11     Jury Consideration Of Penalty, Punishment Or Consequences Of Verdict: Federal Circuit Model Instructions And Notes

See 5th Circuit Pattern Jury Instructions - Criminal 1.20.

See also 6th Circuit Pattern Jury Instructions - Criminal 8.05.

See also 8th Circuit Model Jury Instructions - Criminal 3.12.

See also 9th Circuit Model Jury Instructions - Criminal 7.4.

See also 11th Circuit Pattern Jury Instructions - Criminal BI 10.1.

See also 11th Circuit Pattern Jury Instructions - Criminal BI 10.2.

See also 11th Circuit Pattern Jury Instructions - Criminal BI 10.3.

See also 11th Circuit Pattern Jury Instructions - Criminal BI 10.4.

See also Federal Judicial Center, Pattern Criminal Jury INSTRUCTIONS 4.

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    279.12    Whether Jury Should Be Informed When The Prosecution Is Not Seeking The Death Penalty

PRACTICE NOTE:  In jurisdictions where the jury, rather than the judge, determines the sentence in a capital felony jury trial the jury inevitably must concern itself with sentencing in a capital case.  In a first degree murder case, the jury "naturally wonders" whether the death penalty is involved.  (State ex rel. Schiff v. Madrid (NM 1984) 679 P2d 821, 824.)  "The public commonly understands that in contrast to other criminal cases, the jury in a death penalty murder case must determine penalty as well as guilt. The moral and ethical questions surrounding the use of the death penalty have generated considerable social debate. It is reasonable to anticipate that a significant number of prospective jurors might question their ability to sit on a jury which potentially would have to consider imposition of a sentence of death. Not only did the trial judge's decision to raise and dispose of the issue at the outset save time and unnecessary strain on potential jurors' psyches, but it also avoided any possibility that a prospective juror's concern about serving on a death penalty case might skew his answers to voir dire questioning."  (People v. Hyde (CA 1985) 166 CA3d 463, 479 [212 CR 440]; accord State v. Mott (1997) 931 P2d 1046, 1057; State v. Wild (1994) 880 P2d 840, 843-44; Stewart v. State (1985) 326 SE2d 763, 764; Burgess v. State (IN 1983) 444 N.E.2d 1193, 1196.)

    Several courts have held that it is not error in murder cases to instruct that the case does not involve the death penalty.  (See State v. Martin (NM 1984) 686 P2d 937, 947 [citing the Use Note to UJI Crim. 50.06: "In a capital case it is proper for the state or court in the voir dire or in the court's opening or closing remarks to tell the jury that the state will not seek the death penalty"]; State ex rel. Schiff v. Madrid (NM 1984) 679 P2d 821.)  For example:

    I would advise you that this case does not involve a death penalty. You have nothing whatever to do, however, with any punishment that may be imposed in case of a violation of the law. The fact that punishment may follow conviction cannot be considered by you except insofar as it may tend to make you careful.

(State v. Murphy (WA 1997) 937 P2d 1173, 1174.) 

   However, it has also been held that such an instruction is error.  As explained in State v. Townsend (WA 2001) 15 P3d 145, the "strict prohibition against informing the jury of sentencing considerations ensures impartial juries and prevents unfair influence on a jury's deliberations. The only exception that allows juries to know about sentencing consequences is in a death penalty trial, and even then the jury is to consider the penalty only after a determination of guilt. The State argues, however, that a failure to inform the jury that the death penalty is not involved will unfairly prejudice the prosecution since some jurors may always vote to acquit or opt out if they fear the death penalty may be involved. The converse could also be argued just as well: if jurors know that the death penalty is not involved, they may be less attentive during trial, less deliberative in their assessment of the evidence, and less inclined to hold out if they know that execution is not a possibility. Rather than giving jurors information about the penalty in a noncapital case, we believe that voir dire should be used to screen out jurors who would allow punishment to influence their determination of guilt or innocence and then, through instructions, jurors should be advised that they are to disregard punishment. This process should satisfy the concerns raised by the State. We see no reason to create an exception for non-capital murder cases."  (State v. Townsend (WA 2001) 15 P3d 145, 149 [the question of the sentence to be imposed by the court is never a proper issue for the jury's deliberation, except in capital cases]; see also Shannon v. United States (1995) 512 US 573, 579 [114 SCt 2419; 129 LEd2d 459] ["It is well established that when a jury has no sentencing function, it should be admonished to 'reach its verdict without regard to what sentence might be imposed.'" (quoting Rogers v. United States (1975) 422 US 35, 40 [95 SCt 2091; 45 LEd2d 1]); State v. Murphy (WA 1997) 937 P2d 1173, 1175 [because Murphy's potential sentence was not in the hands of the jurors, it was error to give the instruction].)

    "As amended, the Use Note for UJI Crim. 50.06 still forbids a jury to know that death may be the penalty for one accused and convicted in a capital murder case, thus properly anesthetizing any feelings of sympathy or of guilty conscience that might influence its deliberations if it were aware that death would result from a verdict of guilty; but it permits advising a jury when death will not be sought as the penalty, thereby tacitly encouraging a guilty verdict because the conscience-cleansing instruction informs the jury that, even if it finds defendant guilty, it will not have had a role in putting defendant to death. Such subtle pressures on a jury's verdict are improper and should not be condoned."  (State v. Martin (NM 1984) 686 P2d 937, 950, concurring opinion of Walters, J. [dissent on this point].)