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

VOLUME 16: JURY INSTRUCTIONS AND THE FEDERAL CONSTITUTION (Chapters 299-300)

TABLE OF CONTENTS

Chapter 299: Preserving Federal Constitutional Claims

299.1 Preserving Federal Constitutional Claims: General Principles
    299.1.1 Introduction
    299.1.2 Reasons For Federalizing Jury Instruction Requests

299.2 Procedural Prerequisites For Raising Federal Constitutional Claim on Federal Habeas Corpus
    299.2.1 Federal Claim Must Be Specified
    299.2.2 Necessity Of Federalizing In Trial Court
    299.2.3 Necessity Of Federalizing In Intermediate Appellate Court
    299.2.4 Necessity Of Presenting Federal Issue To State's Highest Court Even If Review Is Discretionary
    299.2.5 Actual Innocence: Herrera v. Collins Standard
    299.2.6 Actual Innocence: "Schlup Gateway" -- Lower Standard Than Herrera

299.3 Habeas Corpus Standards
    299.3.1 Standard Of Review On Federal Habeas
    299.3.2 Standard Of Prejudice On Federal Habeas

299.4 Federalizing Jury Instruction Requests [Reserved]

Chapter 300: Substantive Federal Constitutional Claims Relevant To Jury Instruction

300.1 Due Process: Miscellaneous Claims
    300.1.1 Due Process Applicable To Deeply Rooted Common Law Right
    300.1.2 Due Process: Proof Of Every Essential Fact Beyond A Reasonable Doubt
    300.1.3 Due Process: Instruction On Defense Theory
    300.1.4 Due Process: Instruction On Lesser Included Offense
    300.1.5 "Super Due Process"-- Domestic Rules Of Evidence Does Not Preclude Defendant From Establishing A Denial Of A Fair Trial
    300.1.6 Due Process: Presence Of Defendant At Trial
    300.1.7 Due Process: Juror Unanimity
    300.1.8 Due Process: Juror Consideration Of Irrelevant, Prejudicial Evidence
    300.1.9 Due Process: Presence Of Judge
                300.1.9.1 Judge’s Absence While Jury Views Videotapes: Harmless vs. Structural Error
    300.1.10 Due Process: Right To Balanced Instruction
    300.1.11 Substantive Due Process
    300.1.12 Due Process: Exercise Of One Constitutional Right Must Not Be Conditioned On Waiver Of Another
    300.1.13 Summation/Closing Argument: Guaranteed By Constitutional Rights To Counsel, Due Process, Trial By Jury
    300.1.14 Due Process on Appeal: Applicability Of Federal Due Process To Appeal
    300.1.15 Cumulative Effect Of State Errors As Violation Of Federal Due Process
    300.1.16 Reliability Of Conviction And Sentence Guaranteed By Due Process
    300.1.17 Due Process: Fair Opportunity To Defend
    300.1.18 Due Process Fair Opportunity To Litigate Trial Motions
    300.1.19 Due Process: Supreme Court To Review "Enemy Combatant’s" Challenge To Indefinite Confinement

300.2 Due Process: Notice
    300.2.1 Charging Variance: Instruction On Uncharged Theory Violates Notice/Due Process Principles And Right to Effective Assistance of Counsel
    300.2.2 Due Process/Notice: New Law Or Legislation
    300.2.3 Due Process/Notice: Changing The Rules In The Middle Of The Game
    300.2.4 Due Process/Notice: Variance Between Information And Proof At Trial
    300.2.5 Due Process/Notice: Variance Between Indictment/Information And Proof At Trial -- Standard Of Prejudice

300.3 Due Process: Arbitrary State Action
    300.3.1 Constitutional Claims: Disparate Treatment Of Identical Claims
    300.3.2 Constitutional Claims: Due Process Violation For Arbitrary Denial Of State Created Right
    300.3.3 Constitutional Claims: Misapplication Of A State Law

300.4 Failure Of Instructions To Assure Proper Jury Determination Of An Element Of The Charged Offense (Due Process/Trial By Jury)
    300.4.1 Failure Of Instructions To Assure Proper Jury Determination Of An Element Of The Charged Offense: General Principles
    300.4.2 Constitutional Claims: Failure To Instruct Or Directed Verdict On Element Of Charge
    300.4.3 Constitutional Claims: Withdrawal Of Factual Issue May Constitute A Directed Verdict
    300.4.4 Constitutional Claims: Misinstruction On Element Of Charge
    300.4.5 Constitutional Claims: Contradictory Instructions On Element
    300.4.6 Constitutional Claims: Failure To Instruct On All Elements Of The Charge

300.5 Misinstruction On Burden Of Proof (Due Process/Trial By Jury)
    300.5.1 Constitutional Claims: Failure To Properly Define The Prosecution's Burden
    300.5.2 Constitutional Claims: Improper Presumption Which Lessens The Prosecution's Burden
    300.5.3 Constitutional Claims: Instructions Which Shift The Burden
    300.5.4 Constitutional Claims: Irrational Use Of Permissive Inference

300.6 Inadequate Instruction On Defense Or Defense Theory
    300.6.1 Constitutional Claims: Failure To Instruct Upon Defenses
    300.6.2 Defense Theory Instruction Required By Due Process, Compulsory Process And Confrontation

300.7 Failure To Instruct On Lesser Included Offenses In Noncapital Case
    300.7.1 Failure To Sua Sponte Instruct On Lesser Included Offenses: Whether Due Process Is Implicated
    300.7.2 Denial Of Requested Lesser Included Offense Violates Due Process

300.8 Failure To Instruct On Lesser Included Offense In Capital Case
    300.8.1 Constitutional Claims: 8th Amendment Requires Lesser Included Offense In Capital Case

300.9 Juror Unanimity (Duplicity)
    300.9.1 Constitutional Claims: Juror Unanimity Required By 6th Amendment (Trial By Jury)
    300.9.2 Constitutional Claims: Juror Unanimity Required By 5th And 14th Amendment (Due Process)

300.10 Trial By Jury
    300.10.1 Constitutional Claims: Trial By Jury -- General Principles
    300.10.2 Constitutional Claims: Impairing Jury's Assessment Of Witness Credibility As Violation Of Right To Trial By Jury
    300.10.3 Constitutional Claims: Instructions Impacting Elements Of The Offenses As Violative Of Right To Trial By Jury
    300.10.4 Constitutional Right To Jury Determination Of Factual Component Of Mixed Questions Of Law And Fact
    300.10.5 Constitutional Claims: Trial By Jury: Premature Discussion Or Deliberation Undermines Prosecution's Burden

300.11 Jury Consideration Of Irrelevant Evidence
    300.11.1 Constitutional Claims: Instruction Allowing Jury To Consider Irrelevant Evidence Violates The Federal Constitution

300.12 Instructions Must Be Balanced
    300.12.1 Balance Between Prosecution And Defense: Due Process Requires Instructions Which Do Not Unduly Favor The Prosecution
    300.12.2 Due Process Requires That The Instructions Be Balanced Between Codefendants
    300.12.3 Constitutional Claims: Balance Among Instructions
    300.12.4 Exercise Of One Constitutional Right Should Not Be Conditioned Upon The Waiver Of Another
    300.12.5 Exercise Of Statutory Right Should Not Be Conditioned Upon The Waiver Of Another
    300.12.6 Balance Between Prosecution And Defense: Equal Protection

300.13 Vagueness And Overbreadth
    300.13.1 Constitutional Claims: Vagueness
    300.13.2 Constitutional Claims: Overbreadth

300.14 Ex Post Facto, Due Process, Notice, Abatement And Retroactivity
    300.14.1 Constitutional Claims: Ex Post Facto: General Principles
                  300.14.1.1 Purposes Of Ex Post Fact Rules
                  300.14.1.2 Applicability: Whether Statute Redefines Substantive Law, Increases Consequences Or Makes It Easier To Convict
                  300.14.1.3 Changes In Rules Of Evidence
                  300.14.1.4 Seven Factor Test
                  300.14.1.5 Removal Of Discretion
                  300.14.1.6 Right On Direct Appeal To Benefit Of Intervening Decision
                  300.14.1.7 Applicability To Continuing Conduct
    300.14.2 Constitutional Claims: Ex Post Facto: Critical Point Is Date Crime Was Committed
    300.14.3 Constitutional Claims: Due Process/Notice
    300.14.4 Due Process/Notice: Changing The Rules In The Middle Of The Game
    300.14.5 Constitutional Claims: Abatement

300.15 Constitutional Claims: Presence Of Defendant At Trial
    300.15.1 Presence Of The Defendant At Counsel Table: Strategy Note
    300.15.2 Presence At Sidebar Discussion: Failure To Object Is Not Fatal
    300.15.3 Waiver Of Presence: Defense Counsel Lacks Power To Waive Defendant's Right To Be Present
    300.15.4 Waiver Of Presence: Advisement Of Rights That Defendant Will Waive
    300.15.5 Can Defendant's Presence Be Waived In A Capital Trial
    300.15.6 Presence Of Defendant: Specific Proceedings
    300.15.7 Absence Of Defendant Undermines Defendant's Credibility
    300.15.8 Record On Appeal: Constitutional Right

300.16 First Amendment
    300.16.1 Constitutional Claims: Freedom Of Speech (1st Amendment)
    300.16.2 Constitutional Claims: Freedom Of Association (1st Amendment)
    300.16.3 Constitutional Claims: Freedom Of Religion (1st Amendment)

300.17 Equal Protection
    300.17.1 Equal Protection: General Principles
    300.17.2 Constitutional Claims: Disparate Treatment Of Identical Claims
    300.17.3 Equal Protection and The Death Penalty
    300.17.4 Equal Protection: Disparate Sentences Between Male And Female Defendants

300.18 Freedom From Cruel And Unusual Punishment (8th Amendment)
    300.18.1 Freedom From Cruel And Unusual Punishment: General Principles
    300.18.2 8th Amendment Cruel And Unusual Punishment: Applicability To Strict Liability
    300.18.3 8th Amendment Cruel And Unusual Punishment: Applicability To Capital Punishment

300.19 Summation/Closing Argument
    300.19.1 Summation/Closing Argument: Constitutional Underpinnings

300.20 Misconduct Of Cocounsel
    300.20.1 Misconduct Of Cocounsel As An Abridgement Of Defendant's Constitutional Rights

300.21 Apprendi v. New Jersey
    300.21.1 Ring & Apprendi: Favorable Cases
    300.21.2 Apprendi: Constitutional Rights Apply To Sentencing Decisions The Increase The Range Of Punishment
    300.21.3 Apprendi: Applicability Of Federal Constitutional Rights To Prior Convictions
    300.21.4 Apprendi: Applicability Of Double Jeopardy To Sentencing Factors
    300.21.5 Apprendi: Drug Quantity Enhancements
                  300.21.5.1 Drug Conspiracy: Quantity Enhancement Requires Jury Finding
    300.21.6 Apprendi: Mandatory Minimums
    300.21.7 Apprendi: Upward Departure In Violation Of Statutory Maximum
    300.21.8 Apprendi: Parole Term Or Conditions
    300.21.9 Apprendi: Prior Convictions
    300.21.10 Apprendi: Juvenile Adjudications (Priors) -- Apprendi Forecloses Use Of A Juvenile Prior As A Strike Or Enhancement
    300.21.11 Apprendi: Whether Sentencing Factors Must Be Charged
    300.21.12 Apprendi: Enhancement For Exceptionally Brutal And Heinous Offense
    300.21.13 Apprendi: Type Of Gun Possessed In Violation Of 18 USC 924(c)(1) Is A Sentencing Factor
    300.21.14 Apprendi: Application To Identity Of Controlled Substance (21 USC 841(d)(3))
    300.21.15 Reserved
    300.21.16 Death Penalty: Application Of Apprendi To Death Qualification (Death Eligibility) Factors
    300.21.17 Apprendi: Parole Eligibility
    300.21.18 Apprendi: Application To Finding That Increases Duration Of License Suspension
    300.21.19 Apprendi: Applicability To Restitution
    300.21.20 Apprendi: Applicability To Cases On Initial Collateral Review
    300.21.21 Apprendi: Waiver Of Defect In Indictment
    300.21.22 Apprendi/Ring: Death Penalty Sentencing -- Presumption Of Life; Prosecution Burden Of Proof Beyond A Reasonable Doubt 
    300.21.23 Apprendi/Ring: Jury Unanimity As To Death Findings
    300.21.24 Sentencing: Drug Quantity – Sufficiency Of Objection
    300.21.25 Whether Ring Applies Retroactively

300.22 Jury Determinations Of Factual Component Of Mixed Questions Of Law And Fact
    300.22.1 Constitutional Right To Jury Determination Of Factual Component Of Mixed Questions Of Law And Fact

300.23 Privilege Against Self Incrimination (5th Amendment)
    300.23.1 Privilege Against Self Incrimination: General Principles
    300.23.2 Privilege Against Self Incrimination: Not Applicable To Nontestimonial Evidence
    300.23.3 Privilege Against Self Incrimination: Applicability To Written Communications
    300.23.4 Privilege Against Self Incrimination: Applicability To Handwriting Exemplar
    300.23.5 Privilege Against Self Incrimination: Requiring Defendant To Say The Same Words Uttered By The Culprit Violates Due Process
    300.23.6 Defendant Has Right To Instruction On Privilege Against Self Incrimination Even If Defendant Is Not Present During Trial

300.24 Right To Presence Of Trial Judge
    300.24.1 Constitutional Claims: Judge's Presence Is A Fundamental Right
    300.24.2 Constitutional Claims: Can The Presence Of The Judge Be Waived?
    300.24.3 Constitutional Claims: Presumption Of Prejudice From Absence Of Judge

300.25 Right To Public Trial
    300.25.1 Constitutional Claims: Exclusion Of Public From Trial May Violate The Federal Constitution
    300.25.2 Constitutional Claims: Exclusion Of Defendant’s Family Members From Courtroom May Violate Right To Public Trial
    300.25.3 Constitutional Claims: Public Trial: Conducting Portion Of Trial In Chambers May Violate Right To Public Trial
    300.25.4 Public Trial: 6th Amendment

300.26 Confrontation Or Cross-Examination
    300.26.1 Constitutional Claims: Denial Of Confrontation Or Cross-Examination As Violation Of 6th Amendment
    300.26.2 Confrontation: Precise Bias Need Not Be Articulated

300.27 Effective Assistance Of Counsel
        300.27.1 Effective Assistance Of Counsel: Trial
            300.27.1.1 Right To Effective Jury Instruction Advocacy At Trial
            300.27.1.2 Effective Assistance Of Counsel: Right To Communication With Counsel At Trial
            300.27.1.3 Constitutional Claims: Right To Presence Of Counsel At Trial

        300.27.2 Effective Assistance Of Counsel: Appeal
            300.27.2.1 Effective Assistance Of Counsel: Appeal

        300.27.3 Effective Assistance Of Counsel: Habeas Corpus
            300.27.3.1 Effective Assistance Of Counsel: Habeas Corpus

300.28 Severance Of Codefendants
    300.28.1 Denial Of Severance As Violation Of Federal Constitution

300.29 Reliability Of Trial And Verdict
    300.29.1 Federal Constitutional Rights Implicated By Unreliable Trial Or Conviction

300.30 Defendant's Right To Testify
    300.30.1 Constitutional Claims: Defendant's Right To Testify: General Principles
    300.30.2 Defendant's Right To Testify: Cannot Be Waived By Counsel
    300.30.3 Defendant's Right To Testify: Request That Defendant Be Allowed To Testify Before The Prosecution Witness

300.31 Jury Misconduct
    300.31.1 Constitutional Claims: Jury Consideration Of Extrinsic Evidence As Misconduct

300.32 Constitutional Claims: Jury Consideration Of All Evidence
    300.32.1 Constitutional Claims: Jury Consideration Of All The Evidence

300.33 Right To Challenge Jurors During Jury Selection 
    300.33.1 Impairment Of Right To Exercise Of Peremptory Challenges As Federal Constitutional Violation

300.34 Denial Of Continuance As Violation Of Federal Constitution
    300.34.1 Denial Of Continuance As Violation Of Federal Constitution

300.35 Impartial Judge