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285.4 New Or Different Instructions During Deliberations

    285.4.1 Supplemental Instructions Inconsistent With Defendant's Theory Of The Case
    285.4.2 Supplemental Instructions: New Charges Or Theories
    285.4.3 Right To Reopen Argument If Supplemental Instruction Covers New Subject
    285.4.4 Correct Regular Instruction Does Not Cure Improper Supplemental Instruction

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PRACTICE NOTE: Prejudice to the defendant may result from the delivery of supplemental instructions on a defense which is inconsistent with the defendant's theory of the case. (See People v. Lozano (CA 1987) 192 CA3d 618, 625-26 [237 CR 612].)

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 D. Jury Questions During Deliberation: Responses To Questions From The Jury About Jury Instructions].

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: It is error to submit new charges and theories requested by either party after the jury has already retired to deliberate. (People v. Gramc (IL 1995) 647 NE2d 1052, 1056; see also People v. Carron (CA 1995) 37 CA4th 1230, 1240 [44 CR2d 328].) For example, it may be error to give an instruction permitting conviction of a lesser included offense for the first time during deliberations, even if the instruction would have been proper if it had been included in the original charge, because the jury may interpret delivery of that instruction as an indication that the court believes the defendant should be convicted of some offense. (People v. Jennings (CA 1972) 22 CA3d 945, 948-49 [99 CR 739]; People v. Stouter (CA 1904) 142 C 146, 146-50; see also Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) p. 4-4.)

    If a new theory is allowed additional argument should be permitted. (See e.g. NCJIC 2.3.1.6 [New Or Additional Instructions After Argument].) If a supplemental instruction brings into the case a new rule of law, not previously brought to the jury’s attention, additional argument should be allowed. (BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) § 131.101[8]; see also People v. Clark (MI 1996) 556 NW2d 820, 829 [judge's subsequent decision to instruct the jury with the unmodified instruction, erroneous or not, effectively nullified the defense's theory as argued to the jury and consequently prejudiced the defense]; but see U.S. v. Welbeck (2nd Cir. 1998) 145 F3d 493, 496-97 [permissibility of such instructions depends on the facts and circumstances of each trial].)

    See also NCJIC 300.2.1 [Charging Variance: Instruction On Uncharged Theory Violates Notice/Due Process Principles And Right to Effective Assistance of Counsel].

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 D. Jury Questions During Deliberation: Responses To Questions From The Jury About Jury Instructions].

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:  If the new instructions deal with a subject which was not adequately covered in counsel's closing argument, counsel must be given the opportunity to reopen the argument to discuss the new subject. (U.S. v. Gaskins (9th Cir. 1988) 849 F2d 454, 458-460; see also BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) § 131.101[8]; CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 2.90 [Reinstruction Of The Jury-Note] (Bar Association of the District of Columbia, 4th ed. 1993).)

APPELLATE PRACTICE NOTE: The failure to request additional argument may impair subsequent appellate attack on the supplemental instruction. (See e.g., Atkinson v. U.S. (DC 1974) 322 A2d 587, 589.)

Annotation, Right Of Accused To Additional Argument On Matters Covered By Amended Or Additional Instructions, 15 ALR2d 490.

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 D. Jury Questions During Deliberation: Responses To Questions From The Jury About Jury Instructions].

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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PRACTICE NOTE:  See Johnson v. Gibson (10th Cir. 2001) 254 F3d 1155, 1166 [reversal required where improper supplemental instruction regarding parole eligibility contradicted rather than referred back to the original correct instructions].

RESEARCH NOTES:

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