NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions

VOLUME 1: JURY INSTRUCTION PRACTICE (Chapters 1-9)

TABLE OF CONTENTS

Chapter 1: Strategies For Making Jury Instructions Part Of The Adversarial Process

1.1 Jury Instruction Advocacy Can Help You Win At Trial And On Appeal
    1.1.1 The California Experience -- "Going Beyond" The Standard Pattern Instructions
    1.1.2 The California Experience Applies To Other Jurisdictions

1.2 Jury Instruction Advocacy Is Important At Every Stage Of The Criminal Process
    1.2.1 Instruction Preparation Helps With Pre-Trial Strategy And Investigation
    1.2.2 Instruction Preparation Helps With Plea Bargaining
    1.2.3 Instruction Preparation Helps With Pre-Trial Motions
    1.2.4 Pre-Trial Rulings On Jury Instruction Issues Can Help With Trial Strategy And Make A Better Appellate Record
    1.2.5 Instruction Preparation Helps With Evidentiary Issues
    1.2.6 Instruction Preparation Helps With The Opening Statement
    1.2.7 Instruction Preparation Helps With Argument Or Summation To The Jury
    1.2.8 Instruction Preparation Helps With Arguing Points Of Law Not In The Instructions
    1.2.9 Instruction Preparation Helps To Preserve Issues For Appeal

1.3 The Inherent Limitation Of Pattern Instructions
    1.3.1 The Advent Of Pattern Instructions
    1.3.2 What Pattern Instructions Do
    1.3.3 What Pattern Instructions Don't Do
    1.3.4 Pattern Instructions May Lull Judges And Lawyers Into Complacency
    1.3.5 Effective Advocacy Requires Looking Beyond The Pattern Instructions
    1.3.6 The Instruction Committees Themselves Recognize The Need To Look Beyond The Pattern Instructions
    1.3.7 Even "Mandatory" Pattern Instructions Are Not Sacrosanct
    1.3.8 The Trial Judge Retains Broad Discretion To Modify Or Supplement Pattern Instructions
    1.3.9 Approval Of Standard Instructions By State Supreme Court Does Not Relieve Judge Of Duty To Instruct Correctly
    1.3.10 Limitation Of Pattern Instructions: Article

1.4 Proven Strategies For Successful Jury Instruction Advocacy Beyond The Pattern Instructions
    1.4.1 Consider Instructions Early; Lay The Groundwork For The Instruction Before And During Trial
    1.4.2 Review The Pattern Instructions Critically And Skeptically
    1.4.3 Use Other Resources To Find Issues Not Addressed In The Pattern Instructions
    1.4.4 Understand And Argue The Rationale And Legal Underpinnings Of The Issue
    1.4.5 Seek Preliminary Instructions
    1.4.6 Model Proposed Instructions On Published Opinions
    1.4.7 Avoid Argumentative Instructions
    1.4.8 Relate The Law To The Facts
    1.4.9 Compare Alternatives And Explain Differences
    1.4.10 Keep Instructions Simple And Short
    1.4.11 Prioritize Your Instruction Requests
    1.4.12 Have Alternative Or Fall Back Positions
    1.4.13 Each Instructional Issue Should Be In A Separate Request
    1.4.14 Strategies For Persuading The Trial Judge To Modify Or Supplement The Pattern Instructions
    1.4.15 Jury Instruction Strategies: Article

Chapter 2: Jury Instruction Procedural Issues

2.1 Instruction Delivery: Written/Oral/Recorded
    2.1.1 Trend Toward Providing Jury With Written Instructions
    2.1.2 Written Instructions In Lieu Of Oral Instructions As Reversible Error
    2.1.3 Written Instructions As Improper Even If Oral Rendition Is Also Given
    2.1.4 Accounting For Illiterate Jurors
    2.1.5 Impropriety Of Piecemeal Written Instructions
    2.1.6 Whether To Submit A Single Set Of Instructions Or One Set For Each Juror
    2.1.7 Having Jurors Read Along With Written Version Of Instructions During Oral Rendition
    2.1.8 Jurors Should Not Be Advised Of Availability Of Written Instructions Until End Of Court’s Oral Delivery
    2.1.9 Preservation Of Written Instructions For The Record
    2.1.10 Supplemental Instructions Should Not Be Delivered By Written Notes
    2.1.11 Written Instructions Given To Jury Should Not Discourage Inquiry

2.2 Sanitizing The Written Instructions
    2.2.1 Sanitizing The Written Instructions: General Rules
    2.2.2 Whether To Include Descriptive Titles On Written Instructions Given To The Jury
    2.2.3 Error To Reveal The Requesting Party
    2.2.4 Jury Should Not Be Concerned About Gap In Numbering Of Instructions

2.3 Timing Of Instructions (When To Instruct)
     2.3.1 Timing Of Instructions: Miscellaneous Issues
               2.3.1.1 Propriety And Importance Of Preliminary Instructions
               2.3.1.2 Whether To Instruct Before Or After Arguments
               2.3.1.3 Failure To Repeat Preliminary Instructions At End Of Trial
               2.3.1.4 Interruption Of Jury Instructions As Prejudicial Error
               2.3.1.5 Duty Of Court To Advise Counsel Before Argument As To Which Instructions Will Be Given
               2.3.1.6 New Or Additional Instructions After Argument
               2.3.1.7 Supplemental Instructions During Deliberations
     2.3.2 Propriety Of Mid-Trial Instructions
               2.3.2.1 Propriety Of Midtrial Instructions: General Principles
               2.3.2.2 Use Of Interim Or Mid-Trial Instructions
               2.3.2.3 Mid-Trial Instructions: Admonition That Final Instructions Control
               2.3.2.4 Mid-Trial Change In Ruling Regarding Instruction: Unfair Surprise2

2.4 Sequence Of Instructions
    2.4.1 Sequence Of Instructions: Court's Discretion
    2.4.2 Sequence Of Instructions Can Cause Confusion And Influence Deliberations

2.5 Record Of Instruction Proceedings
    2.5.1 Instruction Conference Should Be On The Record
    2.5.2 Oral Rendition Of Instructions Should Be On The Record
    2.5.3 Proceedings As To Supplemental Instruction Should Be On The Record
    2.5.4 Variance Between Reporter's Transcript And Written Instructions
    2.5.5 Error In Reporter's Transcript And No Written Instructions Available
    2.5.6 Sufficiency Of Record On Appeal To Present Instructional Error To Reviewing Court
    2.5.7 Making Appellate Record As To Matters Which Cannot Be Recorded By Court Reporter
    2.5.8 Waiver Of Reporter
    2.5.9 Reporting By Electronic Recorder Rather Than Court Reporter
    2.5.10 Record Of Bench Conference
    2.5.11 Preservation Of Written Instructions Given To The Jury
    2.5.12 Insufficiency Of Transcript On Appeal As Reversible Error
    2.5.13 Record On Appeal: Constitutional Right

2.6 Presence Of Defendant Re: Instructions
    2.6.1 Presence Of Defendant: Instruction Conference
    2.6.2 Presence Of The Defendant: Oral Rendition Of Instructions
    2.6.3 Presence Of Defendant: Supplemental Instructions

2.7 Presence Of Counsel
    2.7.1 Presence Of Counsel During Instruction Proceedings
    2.7.2 Presence Of Counsel During Supplemental Instructions

2.8 Right To Public Trial
    2.8.1 Presence Of Public During Instruction Of Jury

2.9 Jury Service Informational Materials
    2.9.1 Danger That Jury Will Rely On Jury Service Booklets
    2.9.2 Admonition To Not Rely On Jury Booklets During Trial And Deliberations

2.10 Use Of Trial Notebooks By Jurors
    2.10.1 Contents Of Trial Notebooks
    2.10.2 Trial Notebooks Cautionary Instruction

2.11 Right Of Party To Object To Instructions Out Of The Jury's Presence
    2.11.1 Absolute Right Of Defendant To Object Outside The Presence Of The Jury
    2.11.2 Requiring Objection To Instruction In Front Of Jury As Reversible Error

Chapter 3: Duty Of Court Regarding Instructions

3.1 Duty To Instruct On Elements Of The Charged Offense
    3.1.1 Duty To Instruct: General Principles
    3.1.2 Duty To Instruct On Elements Of Charge Even If Uncontested
    3.1.3 No Single Element Should Be Emphasized As More Or Less Important

3.2 Duty Of Court To Act On It's Own Motion (Sua Sponte Duties)
    3.2.1 Province Of The Court To Interpret Statute And Apply It To The Facts
    3.2.2 Judge Has Ultimate Responsibility And Duty To Instruct On Legal Principles Applicable To The Case
    3.2.3 Duty To Give Cautionary Or Limiting Instructions
    3.2.4 Evidence Required To Trigger Court's Duty To Instruct Sua Sponte: Substantial Evidence Requirement
    3.2.5 Sua Sponte Duty To Instruct On Defense Theory Supported By Substantial Evidence
    3.2.6 Duty To Define Terms With Specialized/Technical Meaning
    3.2.7 Court's Duty To Instruct May Not Be Delegated To Counsel
    3.2.8 Characteristics Of Effective Judicial Management
    3.2.9 Duty To Instruct On Defense Theories Sua Sponte
    3.2.10 Duty To Relate The Law To The Facts
    3.2.11 Duty To Go Beyond Form Instructions
    3.2.12 Duty Of Judge To Protect The Defendant's Rights
    3.2.13 Instruction Must Not Be Comment On Defendant's Guilt
    3.2.14 Duty To Screen Out Factually Unsupported Theories
    3.2.15 Impact Of Stipulation On Duty To Instruct
    3.2.16 Instruction On Lesser Included Offense Over Defense Objection
    3.2.17 Judge's Duty To Instruct Not Dependent On Jury's Confusion

3.3 Duty Of Court: Requested Instructions
      3.3.1 Sufficiency Of Evidence To Require Requested Instruction
            3.3.1.1 The “Evidence Deserving Of Consideration” Or Substantial Evidence Standard
            3.3.1.2 The “Any Evidence” Standard
            3.3.1.3 Court May Not Evaluate Witness Credibility To Deny Instruction Request
            3.3.1.4 Evidence To Be Viewed In Light Most Favorable To Party Requesting Instruction
            3.3.1.5 Doubt Resolved In Favor Of Defendant
            3.3.1.6 Instruction Required Even If Evidence Presented By The Prosecution
            3.3.1.7 Defendant's Testimony, Even If "Less Than Convincing," Is Sufficient For Instruction
            3.3.1.8 Evidence Is Sufficient For Instruction Where Judge Has Found The Defense Evidence Sufficient In A Different Context
            3.3.1.9 Evidentiary Standard For Issues As To Which The Defendant Has The Burden Of Proof

      3.3.2 Duty To Give Requested Defense Theory Or Pinpoint Defense Instructions
            3.3.2.1 Litigants' Right To Instruction On Theory Of Case
            3.3.2.2 Constitutional Right To Present A Defense
            3.3.2.3 Constitutional Right To Due Process And A Fair Trial By Jury As Ground For Defense Theory Instruction
            3.3.2.4 Constitutional Rights To Due Process, Trial By Jury And Compulsory Process As Grounds For Defense Theory Instruction
            3.3.2.5 Due Process Right To Balance Between Defense And Prosecution As Ground For Defense Theory Instruction

      3.3.3 Duty To Correct Defects
            3.3.3.1 Duty To Correct When Requested Instruction Is Incomplete Or Incorrect

      3.3.4 Duty To Advise Counsel Before Argument As To Which Instructions Will Be Given
            3.3.4.1 Right Of Counsel To Tailor Argument To Instructions

      3.3.5 Rule 30 Not Applicable to Instructions During Trial

3.4 Duty To Inquire Into Juror Misconduct
    3.4.1 Duty To Inquire Into Juror Misconduct: General Principles
    3.4.2 Trial Publicity: Judge Has Duty To Inquire When Media Coverage Includes Information Not Presented At Trial
    3.4.3 Duty To Inquire: Threatening Or Harassing Phone Call Received By Juror
    3.4.4 Duty To Inquire: Jury Tampering
    3.4.5 Conduct Of Judicial Inquiry
    3.4.6 Consideration Of Juror Declarations Or Affidavits

Chapter 4: Duty Of Counsel Regarding Instructions

4.1 The Basic Rule: Instruction Issues Should Be Raised At Trial
    4.1.1 Instruction Issues Should Be Raised At Trial: General Principles
    4.1.2 Specific Ground For Objection Must Be Stated
    4.1.3 Duty to Obtain Ruling From The Court

4.2 Instruction Objections
       4.2.1 Timing Of Objection
            4.2.1.1 When To Object
            4.2.1.2 Right To Object To Instructions Before Closing Argument
            4.2.1.3 Renewal Of Objection And Requested Instructions Prior To Retirement Of Jury
            4.2.1.4 Right Of Party To Object To Instructions Out Of The Jury’s Presence
            
       4.2.2 Specific Objections
            4.2.2.1 Duty To Object: Impact Of Pre-Trial Ruling
            4.2.2.2 Duty To Object: Security Measures At Trial
            4.2.2.3 Duty To Object: Prosecutorial Misstatements Of Law
            4.2.2.4 Duty To Object: Misconduct Of Cocounsel
            4.2.2.5 Duty To Object: Lesser Offenses

       4.2.3 Failure To Object To Jury Instructions As Ineffective Assistance Of Counsel
            4.2.3.1 Failure To Object As Ineffective Counsel: General Principles
            4.2.3.2 Failure To Object To Acquittal First Instruction As Ineffective Assistance Of Counsel
            4.2.3.3 Failure To Cross-Examine Codefendant Or Object To Codefendant’s Testimony As Ineffective Assistance Of Counsel

4.3 Instruction Requests
       4.3.1 Instruction Requests: General Rules
            4.3.1.1 Duty To Request Instructions
            4.3.1.2 Grounds For Requested Instruction Must Be Specific
            4.3.1.3 When To Request
            4.3.1.4 Duty To Request Preliminary Jury Instructions

       4.3.2 Cautionary And Limiting Instructions: Requests And Objections
            4.3.2.1 Cautionary/Limiting Instructions Must Be Requested
            4.3.2.2 Circumstances Where Cautionary/Limiting Instructions May Be Required On Court's Own Motion
            4.3.2.3 Cautionary/Limiting Instruction Should Not Be Given Over Defendant's Objection: Defendant May Waive Benefits
            4.3.2.4 Strategic Concerns Regarding Whether Or Not To Request Cautionary Or Limiting Instructions
            4.3.2.5 Subsequent Change In Ruling Regarding Cautionary/Limiting Instruction May Constitute Unfair Surprise
            4.3.2.6 Timing Of Limiting Instruction: Should Be Given When Evidence Is Admitted And In Final Instructions
            4.3.2.7 Making A Record Of Counsel’s Reasons For Failing To Request Limiting Instruction
            4.3.2.8 Crafting A Rule 105 Limiting Or Cautionary Instruction: "Prohibited Use" Versus "Permitted Use" Instruction

       4.3.3 Instruction Requests: Miscellaneous Duties
            4.3.3.1 Duty To Request Instructions: "Expert-Substitute" Instruction
            4.3.3.2 Sequencing Request To Promote Clarity Of Instructions
            4.3.3.3 Duty To Request Instructions: Instruction Based On Defendant's Perjured Testimony
            4.3.3.4 Duty To Make Record Of Instruction Discussions
            4.3.3.5 Propriety Of Defense Strategy Inconsistent With Defendant's Claim Of Innocence

       4.3.4 Instruction Requests And Cognizability Of Issues On Appeal
            4.3.4.1 Failure To Request Jury Instructions As Ineffective Assistance Of Counsel
            4.3.4.2 Circumstances Where Cautionary/Limiting Instructions May Be Required On Court's Own Motion
            4.3.4.3 Raising Claims On Appeal That Have Not Been Preserved Below

Chapter 5: Jury Instruction Language

5.1 Making Jury Instructions Understandable
    5.1.1 Making Jury Instructions Understandable: General Principles
    5.1.2 Instructions Must Satisfy Two Audiences
    5.1.3 Jurors Are Prone To Misunderstand Jury Instructions
    5.1.4 Increasing Juror Comprehension: Include General Concept First And Then Break Down Components
    5.1.5 Determining An Instruction's "Readability" Score
    5.1.6 Empirical Challenge To Confusing Jury Instruction Language
    5.1.7 Juror Misunderstanding Of Instructions In Capital Cases Has Been Demonstrated

5.2 Jury Instruction Language: Miscellaneous Principles
    5.2.1 The Statute As A Source Of Instruction Language
    5.2.2 Statute Should Not Be Read Or Paraphrased To The Jury
    5.2.3 Instruction Should Not Refer To Specific Code Section Defendant Is Charged With Violating
    5.2.4 When Jury Expresses Lack Of Understanding Of Term With A Common Meaning
    5.2.5 Language From Appellate Court Opinions
    5.2.6 Instructions Approved By The Reviewing Court
    5.2.7 Reference To Specific People Or Facts
    5.2.8 Impropriety Of Gender Bias By Use Of Masculine Pronouns
    5.2.9 Comment On Credibility Of Specific Witness
    5.2.10 Improper To Use Facts Of Reported Cases To Illustrate Jury Instructions
    5.2.11 Identifying The Party Who Has The Burden Of Proof
    5.2.12 Capitalization Of "Court" And "Jury"
    5.2.13 Including Victim's Name In Pattern Instruction
    5.2.14 Use Of The Term “Unlawful” In A Jury Instruction Is Ambiguous
    5.2.15 Use of the Term “Engaged In” Is Unclear

Chapter 6: Strategies For Challenging Instruction Language That Unfairly Favors The Prosecution Or Misleads The Jury

6.1 Permissive Inference As Improper Comment On Evidence
    6.1.1 The Prosecution Should Not Be Permitted To Obtain Instructions Which Comment On The Evidence
    6.1.2 If The Prosecution Gets Inference Instructions The Defense Should Also

6.2 Examples Of Improper Jury Instruction Language Or Wording
    6.2.1 Instructions Must Not Be Argumentative
    6.2.2 Improper For Instructions To Assume As Facts Matters Which The Jury Must Decide
    6.2.3 Instruction On Reasonable Doubt As To Some Issues And Not Others
    6.2.4 Use Of The Term "Probable" Reduces Prosecution's Burden To Prove Guilt Beyond A Reasonable Doubt
    6.2.5 "Probability Of Truth" As Applied To Prosecution Witness Is Improper Instruction
    6.2.6 "Tending To Prove" Language Improperly Invades Province Of The Jury
    6.2.7 Improper To Include Alias In Referring To Defendant In Instructions
    6.2.8 Instructions Should Not Use Pejorative Language
    6.2.9 Hypotheticals Must Be Representative Of All Theories And Issues
    6.2.10 Improper To Use The Term “Victim” In Jury Instructions
    6.2.11 Improper To Refer To Prosecution As "The People"
    6.2.12 Defense Theory That Negates Element Should Not Be Referred To As A "Defense"
    6.2.13 Uncharged Acts: Avoiding The Term "Offense" Or "Crime"
    6.2.14 Defendant's Statement Should Not Be Characterized As An "Admission" Or "Confession"
    6.2.15 Deletion Of The Term “Expert” From Expert Witness Instruction
    6.2.16 Reference To The Identification As A "Choice" Of The Eyewitness Rather Than As An "Identification"
    6.2.17 Foreseeability: Improper To Use Terms Such As “Probable” Or “Likely”
    6.2.18 Constructive Possession: Use Of Phrase “Indirect Possession” To Avoid Juror Confusion
    6.2.19 The Term "Proximate" Is Unduly Confusing
    6.2.20 Avoiding Language That Burden Never "Shifts" To Defendant
    6.2.21 "Guilt Or Innocence" Comparison Undermines Presumption Of Innocence
    6.2.22 "If you find..." Language Improperly Shifts Burden To Defendant
    6.2.23 Error To Instruct Jury That “Absolute Certainty” Is Not Required
    6.2.24 Proof Beyond A Reasonable Doubt Requires More Than “Strong And Convincing Belief”
    6.2.25 Error To Characterize Reasonable Doubt As "Doubt For Which Some Good Reason Can Be Given
    6.2.26 Proof Beyond A Reasonable Doubt: Use Of The Term “Moral Evidence” Improper
    6.2.27 Consciousness Of Guilt: Instruction Language Should Not Pre-Judge The Issue By Characterizing The Evidence As Flight, Etc.
    6.2.28 Jury Instruction Language: Improper Use Of The Term "Prima Facie"

Chapter 7: [Reserved]

Chapter 8: [Reserved]

Chapter 9: [Reserved]