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  VOLUME 14 - CHAPTER 297
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297.1 General Rules In Evaluating Prejudicial Effect Of Instructions

    297.1.1 Evaluations Prejudice: General Principles
    297.1.2 Jurors Presumed To Follow The Instructions
    297.1.3 Jurors Presumed To Follow Instructions Rather Than Argument Of Counsel
    297.1.4 Jurors Presumed To Be Intelligent
    297.1.5 Instructions Must Be Considered As Whole
    297.1.6 Instruction That Applies A Rule To One Issue And Not To Another
    297.1.7 Specific Instruction Controls Over General
    297.1.8 Jury Questions As Evidence That Original Instructions Were Not Clear

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  VOLUME 14 - CHAPTER 297

APPELLATE PRACTICE NOTE: Courts have developed a number of general rules which are used in evaluating the impact of instructional error. For example, LeMons v. Regents of U.C. (CA 1978) 21 C3d 869, 876 [148 CR 355] identified a number of factors to be considered in measuring the prejudicial effect of instructional error after noting that there is "no precise formula for measuring the effect of an erroneous instruction ..." The factors identified by LeMons were the following: (1) the degree of conflict in the evidence on critical issues; (2) whether respondent's argument to the jury may have contributed to the instruction's misleading effect; (3) whether the jury requested a rereading of the erroneous instruction or of related evidence; (4) the closeness of the jury's verdict; (5) the effect of other instructions in remedying the error.  (See also Kentucky v. Whorton (1979) 441 US 786, 789 [99 SCt 2088; 60 LEd2d 640] [prejudicial effect of omitted instruction must be evaluated in light of the "totality of the circumstances" including all instructions and the arguments of counsel]; State v. Cooper (NJ 1997) 700 A2d 306, 350.)

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

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  VOLUME 14 - CHAPTER 297

PRACTICE NOTE: Jurors are presumed to follow the court's instructions. (See e.g., Yates v. Evatt (1991) 500 US 391, 403 [500 SCt 391; 114 LEd2d 432] [noting "sound presumption of appellate practice, that jurors are reasonable and generally follow the instructions they are given"]; see also Opper v. U.S. (1954) 348 US 84, 95 [348 SCt 84; 99 LEd2d 101] ["our theory of trial relies upon the ability of a jury to follow instructions"]; People v. Hardy (CA 1992) 2 C4th 86, 208 [5 CR2d 796]; State v. Bond (CT 1998) 713 A2d 906, 914; People v. Graves (MI 1998) 581 NW2d 229, 234; Neely v. Newton (NM 1998) 149 F3d 1074, 1086; State v. Guthrie (WV 1995) 461 SE2d 163, 177 [no presumption that jury is familiar with the law].)

    "The court presumes that jurors, conscious of the gravity of their risk, attend closely the particular language of the trial court's instructions in a criminal case and strive to understand, make sense of, and follow the instructions given them." (Francis v. Franklin (1985) 471 US 307, 324-25, fn 9 [105 SCt 1965; 85 LEd2d 344].) "Out of necessity, the appellate court presumes the jurors faithfully followed the trial court's directions, including erroneous ones." (People v. Lawson (CA 1987) 189 CA3d 741, 748 [234 CR 557].)

    Hence, in Bollenbach v. U.S. (1946) 326 US 607, 613 [66 SCt 402; 90 LEd2d 350], the court rejected the government's suggestion "that the lay jury will know enough to disregard the judge's bad law if in fact he misguides them."

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  VOLUME 14 - CHAPTER 297

PRACTICE NOTE: The reviewing court must "presume that jurors treat the court's instructions as a statement of the law by a judge, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade." (People v. Clair (CA 1992) 2 C4th 629, 663 [7 CR2d 564]; see also CJ 1.01.) "The crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions." (People v. Mickey (CA 1991) 54 C3d 612, 689, fn 17 [286 CR 801; see also People v. Delgado (CA 1993) 5 C4th 312, 331 [19 CR2d 529]; Davis v. State (MS 1995) 660 So2d 1228, 1249.)

    See also NCJIC 297.5 [Role Of Counsel’s Argument To The Jury In Reviewing Instructional Error].

See generally, NCJIC 305.1.12 [Appeal].

See 1st Circuit Pattern Jury Instructions- Criminal 3.01.

See 5th Circuit Pattern Jury Instructions - Criminal 1.04.

  VOLUME 14 - CHAPTER 297

APPELLATE PRACTICE NOTE: It is assumed jurors are intelligent beings capable of understanding and correlating all instructions given to them. (People v. Billings (CA 1981) 124 CA3d 422, 427-28 [177 CR 392]; see also State v. West (LA 1990) 568 So2d 1019, 1024; State v. Peou (MN 1998) 579 NW2d 471, 475; State v. Leuthavone (RI 1994) 640 A2d 515, 521.)

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

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  VOLUME 14 - CHAPTER 297

APPELLATE PRACTICE NOTE: The jury is presumed to read the court's instructions as a whole, and all instructions should be read in light of all other instructions. (State v. McLoyd (WA 1997) 939 P2d 1255, 1258.) Hence, whether a jury has been correctly instructed is not to be determined from consideration of a part of an instruction or one particular instruction, but from the entire charge of the court. (People v. Stewart (CA 1983) 145 CA3d 967, 975 [193 CR 799]; see also U.S. v. Nixon (5th Cir.1985) 777 F2d 958, 966; U.S. v. West (8th Cir. 1994) 28 F3d 748, 751; Langley v. Pontiac (KS 1971) 491 P2d 891, 897; Commonwealth v. Anderson (MA 1997) 682 NE2d 859, 863; State v. Marshall (NJ 1991) 586 A2d 85, 160; Commonwealth v. Salameh (PA 1992) 617 A2d 1314, 1317.)

    See also NCJIC 16.10.1 [Duty To Consider Instructions As A Whole].

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

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  VOLUME 14 - CHAPTER 297

APPELLATE PRACTICE NOTE: When a generally applicable instruction is specifically made applicable to one aspect of the charge and not repeated with respect to another aspect, the inconsistency may be prejudicial error. (People v. Salas (CA 1976) 58 CA3d 460, 474 [129 CR 871]; see also U.S. v. Echeverri (3rd Cir. 1988) 854 F2d 638, 643 [giving a special unanimity instruction as to predicate acts under a RICO charge, but not as to predicate acts under a concurrent CCE (Continuing Criminal Enterprise) statute charge, violated due process, since jurors may have inferred from this discrepancy that unanimity was not required as to the CCE related predicate acts].)

    "Although the average layperson may not be familiar with the Latin phrase inclusio unius est exclusion alterius, the deductive concept is commonly understood ...."  (People v. Castillo (CA 1997) 16 C4th 1009, 1020 [68 CR2d 648] [conc. opn. of Brown, J.]; see also U.S. v. Crane (9th Cir. 1992) 979 F2d 687, 690 [maxim expressio unius est exclusio alterius "is a product of logic and common sense"].) That is how the California Supreme Court reasoned in People v. Dewberry (CA 1959) 51 C2d 548, 557 [334 P2d 852]:

    "The failure of the trial court to instruct on the effect of a reasonable doubt as between any of the included offenses, when it had instructed as to the effect of such doubt as between the two highest offenses, and as between the lowest offense and justifiable homicide, left the instructions with the clearly erroneous implication that the rule requiring a finding of guilt of the lesser offense applied only as between first and second degree murder."

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

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  VOLUME 14 - CHAPTER 297

APPELLATE PRACTICE NOTE: Jury instructions of a specific nature control over instructions containing general provisions. (People v. Stewart (CA1983) 145 CA3d 967, 975 [193 CR 799]; see also Hubco v. Rappaport (NJ 1985) 628 FSupp 345, 357-58.) "It is particularly difficult to overcome the prejudicial effect of a misstatement when the bad instruction is specific and the supposedly curative instruction is general. [Citation.] It is where the specific instruction is good, and the general one bad, that an error 'is usually cured.' [Citation.]" (Buzgheia v. Leasco Sierra Grove (CA 1997) 60 CA4th 374, 395 [70 CR2d 427].)

    See also NCJIC 250.4.1 [Defense Theory: Not Included In General Burden Of Proof Instruction].

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
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  VOLUME 14 - CHAPTER 297

PRACTICE NOTE: The United States Supreme Court has frequently accepted jury questions as evidence that the trial judge's original instructions were not sufficiently clear. (See, e.g., Shafer v. South Carolina (2001) 532 US 36 [149 LEd2d 178; 121 SCt 1263, 1273] ["Shafer's jury left no doubt about its failure to gain from defense counsel's closing argument or the judge's instructions any clear understanding of what a life sentence means"]; Simmons v. South Carolina (94) 512 US 154, 178 [129 LEd2d 133; 114 SCt 2187] ["That the jury in this case felt compelled to ask whether parole was available shows that the jurors did not know whether or not a life-sentenced defendant will be released from prison"]; Bollenbach v. United States (46) 326 US 607, 612 [90 LEd2d 350; 66 SCt 402] ["The jury's questions . . . clearly indicated that the jurors were confused"].) The Ninth Circuit has done so as well. (E.g., [NF] Belmontes v. Woodford (11/20/2003, 9th Cir. No. 01-99018) 2003 U.S. App. LEXIS 23657, *104, n 19 ["questions strengthen our conviction that the original and supplemental instructions did not convey to the jury that it could consider non-statutory mitigating evidence"]; Morris v. Woodford (9th Cir. 2001) 273 F3d 826, 840 [citing fact that jury asked mid-deliberation question as evidence that it was confused by the original instruction]; United States v. Frega (9th Cir. 1999) 179 F3d 793, 809 [stating that a reviewing court may infer from the jury's questions that it was confused about a controlling legal principle].)

    However, even if the jurors do not ask questions, the reviewing court may still conclude that the instructions were confusing. (See Kelly v. South Carolina (2002) 534 US 246 [122 SCt 726, 733; 151 LEd2d 670] ["Time after time appellate courts have found jury instructions to be insufficiently clear without any record that the jury manifested its confusion"]; see also [NF] Belmontes, 2003 U.S. App. LEXIS 23657, *104, n 19.) "A trial judge's duty is to give instructions sufficient to explain the law, an obligation that exists independently of any question from the jurors or any indication of perplexity on their part." (Kelly v. South Carolina (2002) 534 US 246, 256.) "To hold otherwise would condition our ability to redress serious constitutional violations on such subjective vagaries of fate as whether the jurors happened to ask a question instead of embarking boldly down the wrong path." ([NF] Belmontes, 2003 U.S. App. LEXIS 23657, *104, n 19.)