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285.2 General Rules For Framing Supplemental Instructions

    285.2.1 Supplemental Instructions: Special Care Needed
    285.2.2 Response To Jury's Supplement Instruction Request Must Be Balanced
    285.2.3 Admonition That Supplemental Instructions Have No Greater Weight Than Original Instructions
    285.2.4 Supplemental Instruction Should Not Tell Jury The Order In Which To Consider Issues
    285.2.5 Responding To Jury Inquiries In Capital Cases

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PRACTICE NOTE: The trial judge should be especially careful when framing supplemental instructions. (Powell v. U.S. (9th Cir. 1965) 347 F2d 156, 158, fn 3; People v. Thompkins (CA 1987) 195 CA3d 244, 255 [240 CR 516].) When responding to a jury's explicit request for supplemental instructions, the trial judge must take great care "to insure that any supplemental instructions are accurate, clear, neutral, and non-prejudicial." (U.S. v. Parent (1st Cir. 1992) 954 F2d 23, 27 [written supplemental instructions not "per se error" but judge must be extremely careful to avoid the possibility of prejudicial emphasis]; United States v. Skarda (8th Cir. 1988) 845 F2d 1508, 1512; O’Malley, Grenig & Lee, FEDERAL PRACTICE AND INSTRUCTIONS 9:03 [Communication Between Court And Jury] pp. 597-98 (West, 5th ed. 2000) [Supplemental instructions should be carefully framed and reviewed by counsel because the last words jurors hear may be what they remember best].)

See A Manual On Jury Trial Procedures [4.3 E. Preliminary Charge And Final Instructions: Supplemental Instructions During Deliberations].

See also A Manual On Jury Trial Procedures [5.1 A. Jury Questions During Deliberation: General Procedure For Considering Jury Questions].

See also A Manual On Jury Trial Procedures [5.1 B. Jury Questions During Deliberation: Criminal Jury Trials].

See also A Manual On Jury Trial Procedures [5.1 E. Jury Questions During Deliberation: Supplemental Jury Instructions].

See also generally, NCJIC 305.19.10 [Supplemental Instruction/Deliberation Procedure/Juror Communications].

See generally, NCJIC 285.1.10 [ Supplemental Instructions:  Federal Circuit Model Instructions And Notes].

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 VOLUME 13 - CHAPTER 285

PRACTICE NOTE: Due process demands that, when the jury has expressed difficulty in resolving an issue, the trial court's response must be balanced and not unequally favoring to either side. (See U.S. v. Meadows (5th Cir. 1979) 598 F2d 984, 990.) "[T]he court must exercise special care to see that inaccuracy or imbalance in supplemental instructions do not poison an otherwise healthy trial." (U.S. v. Carter (5th Cir. 1974) 491 F2d 625, 633; see also Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) § 4:2, pp. 4-3-4.)

    For example, U.S. v. Miller (9th Cir. 1976) 546 F2d 320, 324 reversed a conviction because the trial judge, in responding to the jury's request to rehear the instructions on credibility of witnesses, omitted a crucial instruction on distrust of accomplice testimony. (See also U.S. v. Sutherland (5th Cir. 1970) 428 F2d 1152, 1157-58; U.S. v. Skarda (8th Cir. 1988) 845 F2d 1508, 1512.)

    If the jurors ask to rehear a certain instruction that pertains to a specific theory it may be appropriate to reread other instructions which balance the specific theory instructions. (BNA Criminal Practice Manuel (Pike & Fisher Inc. 1999) § 131.101 [8].)

    See also NCJIC 300.12.1 [Balance Between Prosecution And Defense: Due Process Requires Instructions Which Do Not Unduly Favor The Prosecution].

RESEARCH NOTES:

See A Manual On Jury Trial Procedures [4.3 E. Preliminary Charge And Final Instructions: Supplemental Instructions During Deliberations].

See also A Manual On Jury Trial Procedures [5.1 A. Jury Questions During Deliberation: General Procedure For Considering Jury Questions].

See also A Manual On Jury Trial Procedures [5.1 B. Jury Questions During Deliberation: Criminal Jury Trials].

See also A Manual On Jury Trial Procedures [5.1 E. Jury Questions During Deliberation: Supplemental Jury Instructions].

See also generally, NCJIC 305.19.10 [Supplemental Instruction/Deliberation Procedure/Juror Communications].

See generally, NCJIC 285.1.10 [ Supplemental Instructions:  Federal Circuit Model Instructions And Notes].

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RATIONALE: Jurors will have a natural tendency to place more emphasis on supplemental instructions which are individually given in response to inquiry during deliberations.

POINTS AND AUTHORITIES: After delivering supplemental instructions, the court should admonish the jury not to give the additional instructions any more significance than the other instructions which were previously delivered to the jury. (See Davis v. Erickson (CA 1960) 53 C2d 860, 863-64 [3 CR 567]; see also United States v. Meadows (5th Cir. 1979) 598 F2d 984, 990.) "In giving additional instructions to a jury -- particularly in response to inquiries from the jury -- the court should be especially careful not to give an unbalanced charge. If the judge chooses to give any additional charge and elects not to repeat the entire original charge, he should remind the jury of the burden and quantum of proof and presumption of innocence and remind them that all instructions must be considered as a whole or take other appropriate steps to avoid any possibility of prejudice to the defendant." (U.S. v. Sutherland (5th Cir. 1970) 428 F2d 1152, 1157.) "The trial judge ‘may also order other testimony read or give other instructions, so as not to give undue prominence to the particular testimony or instructions requested.’ [Footnote omitted.]" (Wharton’s Criminal Procedure (West, 13th Ed. 1989) § 486, p. 148.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.7].

See A Manual On Jury Trial Procedures [4.3 E. Preliminary Charge And Final Instructions: Supplemental Instructions During Deliberations].

See also A Manual On Jury Trial Procedures [5.1 A. Jury Questions During Deliberation: General Procedure For Considering Jury Questions].

See also A Manual On Jury Trial Procedures [5.1 B. Jury Questions During Deliberation: Criminal Jury Trials].

See also A Manual On Jury Trial Procedures [5.1 E. Jury Questions During Deliberation: Supplemental Jury Instructions].

See also generally, NCJIC 305.19.10 [Supplemental Instruction/Deliberation Procedure/Juror Communications].

See generally, NCJIC 285.1.10 [ Supplemental Instructions:  Federal Circuit Model Instructions And Notes].

    Keep in mind that you should consider what I have just said together with all the other instructions that I gave you earlier. All these instructions are important, and you should consider them together as a whole.

[6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 9.01 [Supplemental Instructions in Response to Juror Questions] ¶ 3 1991).]

    In response to your [question] [request] I will repeat an instruction previously given.  By repeating it, I do not intend to emphasize it over any other instruction.  Any juror who is still unclear or uncertain about the instruction should let me know by a written note.

[See OHIO JURY INSTRUCTIONS, VOLUME 4 - CRIMINAL, OJI 415.10 [Additional Instructions On Matters Of Law] (Anderson, 2000).]

    Do not place undue emphasis on this supplemental instruction. This instruction must be carefully considered along with all other instructions previously given in light of and in harmony with the all the instructions.

[See Leach v. State (TN 1977) 552 SW2d 407; cf. TENNESSEE PATTERN INSTRUCTIONS - CRIMINAL, T.P.I.-Crim 43.13 [Supplement Instruction No.] (West, 5th ed. 2000).]

    This instruction must be considered together with all of the other instructions previously given. Consider all of the instructions as a whole.

[See WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 3.02 [Multiple Defendants-Single Count] (West, 2nd ed. 1994); O'Malley, Grenig & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 20.07 [Response to Inquiry from Deliberating Jury] p. 952 (West, 5th ed. 2000).]

    At this point [following your request], I will give [an] additional instruction[s]. By giving [it] [them] at this time I do not mean to emphasize [it] [them] over any other instruction[s]. You shall consider [this] [these] instruction[s] together with all the other instructions already given. With this admonition I will give you this additional law as part of the general instructions of the court.  The instruction reads:

(Text of new instruction. Include the following paragraph as part of the new instruction:)

    Do not place any undue importance on the fact that [this instruction has] [these instructions have] been given separately.  [It] [They] have no greater or lesser importance than any other instructions previously given.  [It] [They] must be considered together with all of the instructions. 

[See WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 4.68 [Additional Instructions Of Law] (West, 2nd ed. 1994).]

CAVEAT:  There may be an issue as to whether and how to provide jurors with written copies of the supplemental instructions.  There are a number of concerns about written instructions in general.  (See NCJIC 2.1 [Instruction Delivery: Written/Oral/Recorded].)  Additionally, supplemental instructions present special problems because providing a supplemental instruction in writing may give it undue influence. (See NCJIC 2.1.10 [Supplemental Instructions Should Not Be Delivered By Written Notes].)

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    See NCJIC 2.4 [Sequence Of Instructions].

RESEARCH NOTES:

See A Manual On Jury Trial Procedures [4.3 E. Preliminary Charge And Final Instructions: Supplemental Instructions During Deliberations].

See also A Manual On Jury Trial Procedures [5.1 A. Jury Questions During Deliberation: General Procedure For Considering Jury Questions].

See also A Manual On Jury Trial Procedures [5.1 B. Jury Questions During Deliberation: Criminal Jury Trials].

See also A Manual On Jury Trial Procedures [5.1 E. Jury Questions During Deliberation: Supplemental Jury Instructions].

See also generally, NCJIC 305.19.10 [Supplemental Instruction/Deliberation Procedure/Juror Communications].

See generally, NCJIC 285.1.10 [ Supplemental Instructions:  Federal Circuit Model Instructions And Notes].

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    See NCJIC 303.3.17 [Responding To Jury Inquiries In Capital Cases].