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

VOLUME 14: APPEAL (Chapters 295-297)

TABLE OF CONTENTS

Chapter 295: Appeal: Procedural Issues

295.1 Right To Meaningful Appellate Review
        295.1.1 Right To Meaningful Appellate Review: Due Process
            295.1.1.1 Whether Defendant Has A Federal Constitutional Right To Due Process On Appeal

        295.1.2 Right To Effective Representation Of Counsel On Appeal
            295.1.2.1 Complete Denial Of Counsel On Appeal
            295.1.2.2 Ineffective Assistance Of Counsel On Appeal: Failure Of Appellate Counsel To Raise Specific Issues
            295.1.2.3 "No Merit" Briefs: Anders/Wende
            295.1.2.4 Appellate Counsel Who Served At Trial Should Never File Anders/Wende Brief
            295.1.2.5 Self Representation On Appeal
            295.1.2.6 Ineffective Assistance Of Counsel On Habeas Corpus

        295.1.3 Impediments To Meaningful Appellate Review
            295.1.3.1 Appellate Practice Note: Making A Record Of Impediments To Appellate Review

295.2 The Record On Appeal
    295.2.2 Record On Appeal: Constitutional Right
    295.2.1 The Record On Appeal

295.3 Cognizability Of Instructional Error On Appeal: Raising Issues That Have Not Been Preserved Below
        295.3.1 Cognizability Under The Appellate Record
            295.3.1.1 Cognizability Of Instructional Error On Appeal: Plain Error
            295.3.1.2 Futile Objections Need Not Be Raised
            295.3.1.3 Correct Instruction Required Sua Sponte
            295.3.1.4 Duty To Correct Requested Defense Theory Instruction Which Is Incorrect Or Incomplete
            295.3.1.5 Objection By Codefendant May Be Sufficient
            295.3.1.6 "Defensive Act" Made In Light Of Court Ruling Does Not Waive Issue

        295.3.2 Ineffective Assistance Of Counsel At Trial
            295.3.2.1 The Ineffective Assistance Of Counsel Standard
            295.3.2.2 Duty Of Counsel To Investigate All Defenses Of Fact And Law That May Be Available To The Defendant
            295.3.2.3 Failure To Object To Jury Instruction As Ineffective Assistance Of Counsel (IAC)
            295.3.2.4 Failure Of Trial Counsel To Make Instructional Request As Ineffective Assistance Of Counsel
            295.3.2.5 Duty Of Trial Counsel To Request Specific Instructions On The Defense Theory
            295.3.2.6 Failure To Research And Present Nonpattern Jury Instruction As Ineffective Assistance Of Trial Counsel (IAC)
            295.3.2.7 Examples Of Cases Finding Prejudicial/Reversible Error Based On Counsel's Failure To Request Jury Instructions
            295.3.2.8 Duty Of Counsel To Investigate Defendant’s Medical And Psychiatric Conditions In Death Penalty Cases
            295.3.2.9 Duty To Request Instructions: Ineffective Assistance Of Counsel To Make Strategic Decision Without Fully Investigating Alternatives
            295.3.2.10 Ineffective Assistance Of Counsel: Third Party Guilt
            295.3.2.11 Ineffective Assistance Of Counsel: Falling Asleep During Trial
            295.3.2.12 Ineffective Assistance Of Counsel: Failure Of Defense Counsel To Present Evidence Promised In Opening Statement
            295.3.2.13 Ineffective Assistance Of Counsel: Tactical Or Strategic Reasons – Must Apply At The Time Counsel Acted
            295.3.2.14 Ineffective Assistance Of Counsel: Improper To Presume Strategic Or Tactical Reason
            295.3.2.15 Ineffective Assistance Of Counsel: Failure To Investigate Crime Scene

        295.3.3 Overcoming Invited Error
            295.3.3.1 Invited Error: General Principles
            295.3.3.2 Invited Error: Inapplicable Where Requested Instruction Has Been Changed
            295.3.3.3 Invited Error: Must Be Caused By Counsel
            295.3.3.4 Waiver: Joining D.A.'s Request For Instruction

295.4 Specific Instructions: Cognizability On Appeal
    295.4.1 Cognizability On Appeal: Defense Theory Instructions
    295.4.2 Cognizability On Appeal: Element Instructions
    295.4.3 Cognizability On Appeal: Burden Instructions
    295.4.4 Cognizability On Appeal: Jury Unanimity Instructions (Duplicity)
    295.4.5 Cognizability On Appeal: Lesser Offense Instructions

295.5 Appellate Procedure: Miscellaneous Issues
    295.5.1 Supplemental Instructions: Appeal
    295.5.2 Appellate Review In Death Penalty Cases

Chapter 296: Standards of Review And Prejudice On Appeal

296.1 Standards Of Review On Appeal
    296.1.1 Standard For Determining Whether Instruction Should Have Been Given
    296.1.2 Court Reviewing Denial Of Instruction Request Must Assume Jury Would Have Believed The Evidence Upon Which The Instruction Request Was Based
    296.1.3 De Novo Standard Of Review For Instructional Error
    296.1.4 "Reasonable Likelihood" Standard For Ambiguous Instruction

296.2 Standards Of Prejudice On Appeal
        296.2.1 The Basic Standards Of Prejudice
            296.2.1.1 Per Se Reversal Rule Applies To Structural Errors And Errors Which Preclude Meaningful Review
            296.2.1.2 Prejudice On Appeal: The Chapman Standard
            296.2.1.3 Prejudice On Appeal: Nonconstitutional Errors
            296.2.1.4 Standard Of Prejudice On Collateral Review In Federal Court (Federal Habeas Corpus)
            296.2.1.5 Precluding Defendant From Arguing Theory Of Case Is Structural Error
            296.2.1.6 Federal Harmless Error Statute

        296.2.2 Standard Of Prejudice: Miscellaneous Issues
            296.2.2.1 Deciding Whether An Issue Implicates The Federal Constitution
            296.2.2.2 Standard Of Prejudice On Appeal: When Instructions Include Legally Incorrect Theory
            296.2.2.3 Standard Of Prejudice On Appeal: Failure To Instruct On A Defense Or Defense Theory
            296.2.2.4 Standard Of Prejudice On Appeal: Failure To Define A Technical Term
            296.2.2.5 Standard Of Prejudice On Appeal: Failure To Instruct On Accomplice Corroboration Requirement
            296.2.2.6 Written Instructions To The Jury As Reversible Error
            296.2.2.7 Standard Of Prejudice: Ineffective Assistance Of Counsel
            296.2.2.8 Standard Of Prejudice: Prophylactic Reversal -- Necessity Of Reversing Conviction To Avoid Future Error
            296.2.2.9 Standard Of Prejudice On Appeal: When Defense Theory Goes To Degree Of Culpability
            296.2.2.10 Harmless Error Analysis: Sufficient Evidence To Support Verdict Absent The Error Does Not Establish Harmless Error
            296.2.2.11 Prosecutor Misconduct: Standard Of Prejudice

        296.2.3 Standard Of Prejudice On Appeal As To Errors Affecting An Element Of The Charged Offense
            296.2.3.1 Standard Of Prejudice On Appeal: Removal Of All Elements
            296.2.3.2 Standard Of Prejudice On Appeal: Removal Of A Single Element
            296.2.3.3 Standard Of Prejudice On Appeal: Removal Of A Single Element Requiring Less Than Proof Beyond a Reasonable Doubt
            296.2.3.4 Standard Of Prejudice On Appeal: Instruction Which Directs Verdict Against The Defendant
            296.2.3.5 Instruction Which Lightens Or Reduces The Prosecution's Burden Without Totally Removing An Element Of The Charge
            296.2.3.6 Standard Of Prejudice On Appeal: Omission Of Or Improper Instruction On Element Of A Death Qualification Allegation
            296.2.3.7 Standard Of Prejudice: Failure To Instruct On Element Of Sentencing Enhancement Or Prior Conviction

        296.2.4 Standard of Prejudice On Appeal: When Instructions Include Factually Or Legally Insufficient Theory
            296.2.4.1 When Instructions Include Factually Or Legally Insufficient Theory: General Principles
            296.2.4.2 Distinction Between Factual And Legal Theory
            296.2.4.3 Special Procedures In Light Of Rule That Defendant Must Show Jury Relied On Improper Factual Theory
            296.2.4.4 Challenges To The Griffin Rule

        296.2.5 Standard Of Prejudice On Appeal: Jury Unanimity (Duplicity)
            296.2.5.1 Was There A Reasonable Factual Basis For Juror Disagreement As To Which Act Was Committed?
            296.2.5.2 Sullivan v. Louisiana Requires Reversal Per Se

        296.2.6 Lesser Offenses: Analysis Of Prejudice On Appeal
            296.2.6.1 Failure To Instruct Sua Sponte On Lesser Included Offense As Violation Of Federal Due Process
            296.2.6.2 Refusal Of Request To Instruct On Lesser Included Offense Governed By Federal Standard Of Prejudice
            296.2.6.3 Failure To Instruct On Lesser Offense Creates Improper All-Or-Nothing Choice
            296.2.6.4 Prejudicial Effect Of Submitting Lesser Offense Option
            296.2.6.5 Over Charging/Juror Compromise: Prejudicial Effect Of Over-Charging/Over-Instruction When Defendant Convicted Of Lesser Offense

        296.2.7 Apprendi: Standard Of Prejudice On Appeal
            296.2.7.1 Whether Apprendi/Ring Error Is Structural

Chapter 297: Demonstrating Prejudice On Appeal From Instructional Error

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

297.2 Helpful Rules For Showing Prejudice On Appeal
    297.2.1 Prejudice On Appeal: Jury Instructions Are Of Critical Importance
    297.2.2 Prejudice On Appeal: Influence Of The Judge
    297.2.3 Prejudice On Appeal: Cumulative Prejudice
    297.2.4 Prejudice On Appeal: Misinstruction On A Vital Issue In A Close Case
    297.2.5 Prejudice On Appeal: Prosecutorial Exploitation Of The Error In Argument
    297.2.6 Prejudice On Appeal: Reference To Erroneous Instructions
    297.2.7 Prejudice On Appeal: Exploitation Of Erroneous Failure To Instruct
    297.2.8 Prejudice On Appeal: Defense Counsel Forced To Make Closing Argument Without Support Of Instruction
    297.2.9 Prejudice On Appeal: Erroneous Or Incomplete Instructions In Response To Jury Inquiry
    297.2.10 Prejudice On Appeal: Correct Preliminary Instruction Does Not Cure Error
    297.2.11 Prejudice On Appeal: Correct Oral Instruction Does Not Cure Erroneous Or Incomplete Written Instruction
    297.2.12 Prejudice On Appeal: Correct Supplemental Instruction Does Not Cure Error In Original Instructions
    297.2.13 Prejudice On Appeal: Erroneous Instruction Cannot Be Cured By A Correct One
    297.2.14 Prejudice On Appeal: Prompt Return Of Verdict: After Jury Hears Erroneous Instruction
    297.2.15 Prejudice On Appeal: Quick Verdict After Jury Hears Erroneous Or Incomplete Charge
    297.2.16 Prejudice On Appeal: Return Of Verdict By Previously Deadlocked Jury
    297.2.17 Prejudice On Appeal: Cross-Examination Does Not Cure Instructional Error
    297.2.18 Prejudice On Appeal: Jury May Accept Some Portions Of A Witness' Testimony And Reject Other Portions
    297.2.19 Prejudice On Appeal: Conviction For Crime Not Proven By The Evidence
    297.2.20 Only One Juror Need Be Affected For Instructional Error To Be Prejudicial
    297.2.21 Irrelevant Instructions Are Prejudicial If Jury Is Misled
    297.2.22 Instruction In Absence Of Counsel: Analysis Of Prejudice
    297.2.23 Erroneous Instruction As To One Charge May Be Prejudicial As To Others
    297.2.24 Consideration Of Instructions To Evaluate Prejudice From Jury Misconduct
    297.2.25 Prejudice On Appeal: Correct Definition Of Elements In Preamble Of Instruction Does Not Cure Error In Body Of The Instruction
    297.2.26 Jury Misconduct: Standard Of Prejudice

297.3 Analysis Of Prejudice
    297.3.1 Situations Where Cautionary Or Limiting Instructions May Not Cure Prejudice
    297.3.2 Cautionary Or Limiting Instructions May Emphasize The Prejudicial Matter
    297.3.3 Whether Omission Of Cautionary Instruction Regarding Defendant's Failure To Testify Can Be Harmless Error
    297.3.4 Standard Of Prejudice: Instructional Error May Be Prejudicial Even If Claim Is Procedurally Barred By Teague

297.4 Indicia of A Close Case: Specific Factors Which May Be Used To Demonstrate To The Appellate Court That The Case Was "Close"
    297.4.1 Doubt As To Prejudice Should Be Resolved In Favor Of Defendant
    297.4.2 Brevity Of Deliberations To Show Impact Of Error
    297.4.3 Length Of Deliberations To Indicia Close Case
    297.4.4 Request For Readback Or Reinstruction As Indicia Of Close Case
    297.4.5 Request For Explanation Of Instruction As Indicia Of Close Case
    297.4.6 Inquiry About The Meaning Of A Life Sentence In A Capital Prosecution As Indicia Of Close Case
    297.4.7 Prior Hung Jury As Indicial Of Close Case
    297.4.8 Juror Deadlock Before Reaching Verdict As Indicial Of Close Case
    297.4.9 Verdict Reflecting Jury's Selective Belief Of Defense Evidence and Refusal to Convict on All Counts As Indicial Of Close Case
    297.4.10 Credibility Contest Between Prosecution And Defense Witnesses As Close Case As Indicial Of Close Case
    297.4.11 Jury Request To View Exhibits As Indicia Of Close Case
    297.4.12 Indicia Of A Close Case: Death Penalty Trial

297.5 Role Of Counsel's Argument To The Jury In Reviewing Instructional Error
    297.5.1 Argument of Counsel Cannot Substitute for Instruction
    297.5.2 Jury Not Constrained By Theories Advanced By Counsel
    297.5.3 Counsel For Opposing Parties Should Not Be Permitted To Argue Differing Views Of The Law

297.6 Inconsistent Verdicts
    297.6.1 Challenging Inconsistent Verdicts On Appeal