Jury Instructions

June 2014 DPA Annual Conference

“Defense counsel should take whatever steps are necessary to protect the defendant’s right to appeal.”

– ABA Standards for Criminal Justice, Defense Function, 4-8.2(b)

Ethics of Preservation:

“Throughout the trial process counsel should endeavor to establish a proper record for appellate review. As part of this effort, counsel should request, whenever necessary, that all trial proceedings be recorded.”

– NLADA Performance Guidelines 7.1(e)

Ethics of Preservation:

Ethics of Preservation

“If the court refuses to adopt instructions requested by counsel, or gives instructions over counsel’s objection, counsel should take all steps necessary to preserve the record, including, where appropriate, filing a copy of proposed instructions or reading proposed instructions into the record.” – NLADA Performance Guideline 7.7(b) (Jury

Instructions)

When instructions are unpreserved

• Treated as a waiver – unreviewable on appeal– Failing to give an instruction not requested– Defense tendered instruction also contains the

error– Instruction withdrawn by defense– Error known to defense counsel and not objected

to.• Other issues reviewed for palpable error

Studies of juror comprehension

• Study on Illinois Pattern Jury Instructions– Unenumerated mitigators – 41% correct using

pattern instructions, 58% correct using clear instructions.

– Non-Unanimity of mitigators – 65% correct using pattern instructions, 81% correct using clear instructions.

– Weighing the evidence – 51% correct using pattern instructions, 66% correct using clear instructions.

Studies of juror comprehension

• California study – instructed jurors could answer legal questions on the instructions correctly only 51% of the time

• Michigan study – uninstructed jurors did better at explaining concept of beyond a reasonable doubt than jurors who had received pattern instructions.

Preservation

RCr 9.54(2)

“No party may assign as error the giving or the failure to give an instruction unless the party's position has been fairly and adequately presented to the trial judge by an offered instruction or by motion, or unless the party makes objection before the court instructs the jury, stating specifically the matter to which the party objects and the ground or grounds of the objection.”

Pollini v. Commonwealth, 172 S.W.3d 418, 428 (Ky. 2005)

“For adequate preservation of exceptions to jury instructions, the Kentucky Rules of Criminal Procedure require evidence on the record of either (1) a specific objection or (2) the tendering of an instruction in such a manner which presents the party's position ‘fairly and adequately’ to the trial judge.”

How to Object to a Bad Instruction

Rules for Objections

1. Be as specific as possible in objecting to content

2. Be as specific as possible in moving for additions

3. Objection to giving an instruction is not the same as objection to content of instruction

4. If you have a case which helps you mostly, use it!

How to Move for Your Instruction

Rules for Tendering Instructions

1. Know what you are tendering2. Make sure tendered instructions are in the

record3. Move to adopt tendered instructions4. If you have specific objections to make, make

them – even if your tendered instructions say something different

How to Move for Lessers Without Waiving Your D.V. Motion

Preservation - Exercises

Is it Preserved?

• Defendant is charged with committing an offense by complicity. Prosecutor tenders an instruction which omits an essential element of the offense (intent). Defense counsel tenders their own instructions, which include the omitted element, but makes no specific objection to the prosecutor’s instructions or the omission of the element of intent. On appeal, is the error preserved?

Is it Preserved?

• Defendant is charged with murder and claims imperfect self defense. The defense tendered jury instructions are not included in the appellate record, but there is an extensive discussion concerning instructions on the record, where defense counsel objects to the court’s proposed instructions. On appeal, counsel argues that the objected to instructions are improper.

The Issue is Not Preserved Without the Tendered Instructions

“It has long been held that, when the complete record is not before the appellate court, that court must assume that the omitted record supports the decision of the trial court.”

– Commonwealth v. Thompson, 697 S.W.2d 143, 145 (Ky. 1985)

See Brasher v. Commonwealth, 2003 WL 1204081 (Ky. 2003)– Issue was rejected as unpreserved when tendered instructions

were not included in the record.– On rehearing, tendered instructions were located and

provided to the court, and the conviction was reversed on the instruction issue

Instructions – Basic Rules

Trial Law Notebook, pp 61-73

The Judge’s Role is to Inform the Jury of the Law

The Judge Must Instruct on the “Whole Law of the Case.”

This Includes Lesser Included Offenses. . .

. . . Sometimes.

This Includes the Defendant’s Affirmative Defense . . .

. . . Even if it is Offered in the Alternative . . .

. . . And Even if the Defendant Doesn’t Testify.

Instructions Cannot Direct the Jury on How to Interpret the Evidence . . .

. . . But Should Clearly Instruct the Jury on the Elements of the Offense.

Every Element of the Offense Must Be Submitted to the Jury

The Court is Required to Instruct on the Presumption of Innocence . . .

. . . And May Instruct on The Defendant’s Right to Remain Silent if Requested.

You May be Entitled to a Missing Evidence Instruction . . .

. . . Even if the Evidence is Only Lost . . .

. . . And Even if the Evidence is a Missing Witness.

Pages 61-73

Unanimous Verdict

Unanimous Verdict

Ky. Const. Sec. 7 has been construed to require a jury verdict to be unanimous. See Miller v. Commonwealth, 283 S.W.3d 690 (Ky. 2009).

Multiple Identical Jury Instructions

You shall find the defendant guilty of sexual abuse if you find from the evidence beyond a reasonable doubt that between June and August 2012 and before the finding of the indictment herein, the defendant subjected the victim to sexual contact . . .

You shall find the defendant guilty of sexual abuse if you find from the evidence beyond a reasonable doubt that between June and August 2012 and before the finding of the indictment herein, the defendant subjected the victim to sexual contact . . .

Error!

Different Factual Offenses in Same Instruction

You shall find the defendant guilty of sexual abuse if you find from the evidence beyond a reasonable doubt that between June and December 2012 and before the finding of the indictment herein, the defendant subjected the victim to sexual contact . . . [Testimony was that there were two distinct incidents which occurred within that date range.]

Reserving an Element of the Offense Until Sentencing Phase

You will find the Defendant guilty of Incest under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:A. That in this county on or between July 2005 and June 2010, and before the finding of the Indictment herein, he engaged in sexual intercourse with [Victim];B. That [Victim] was his daughter;C. That he knew [Victim] was his daughter

Sentencing phase instructions require the jury to find that the victim was under 12 to impose specific sentence.

Multiple Theories in Definition

• Offense defines trafficking as “to manufacture, distribute, dispense, sell or transfer a controlled substance.” (No evidence of manufacture)

• Offense defines “abuse” (in criminal abuse prosecution) as “the infliction of physical pain, injury, or mental injury, or the deprivation of services which are necessary to maintain the health and welfare of a person.” (No evidence of deprivation of services)

Multiple Theories in Same Instruction [Where One is Not Supported by Evidence]

You shall find the defendant guilty of murder if you find all of the following beyond a reasonable doubt:A. That on June 3, 2012 and before the finding of the

indictment herein, the defendant intentionally murdered Victim by hitting her on the head with a PowerPoint projector; or

B. That on June 3, 2012 and before the finding of the indictment herein, the defendant hit Victim on the head with a PowerPoint projector, killing her, and that in so doing the defendant was acting wantonly . .. (no evidence of wantonness)

Multiple Theories in Same Instruction [Where Both Supported by Evidence]

You shall find the defendant guilty of murder if you find all of the following beyond a reasonable doubt:A. That on June 3, 2012 and before the finding of the

indictment herein, the defendant intentionally murdered Victim by hitting her on the head with a PowerPoint projector; or

B. That on June 3, 2012 and before the finding of the indictment herein, the defendant hit Victim on the head with a PowerPoint projector, killing her, and that in so doing the defendant was acting wantonly . .. (evidence of wantonness)

Not Erro

r!

When it is the “same offense”

• Relevant to– Combined instructions– Amendments to the indictment

• “Same offense” includes:– Multiple theories in the same statute (i.e., murder can be

either intentional or wanton – both are in the “murder” statute)

– “Principal or accomplice” – complicity not a separate offense, but a different way of committing the underlying offense

Unanimous Verdict: What to watch for

• Does the instruction cover more than one incident?• Do the instructions cover more than one theory

(i.e., to the instructions use the word “or”)?• Do the definitions instructions recapitulate a theory

not supported by the evidence? (Ex: Instructions on mental state including both result and act theories; definition of trafficking to include multiple theories sale, transfer, distribution, etc..)

Unanimous Verdict - Exercises

Defendant is charged with use of a minor in a sexual performance. The testimony includes testimony about an incident in January, and a second incident in May, both of which involved an alleged sexual performance by a minor. The court’s proposed jury instruction requires the jury to find that a sexual performance occurred “between January 1 . . . and May 31 . . .,” and provides no other distinguishing details about the offense.

Defendant is charged with one count each of rape and sodomy. For each offense, the court wants to give a lesser included offense instruction of sexual abuse in the first degree. The sexual abuse instructions are identical, except that the first sexual abuse instruction says:“If you do not believe from the evidence beyond a reasonable doubt that the defendant is guilty of rape in the second degree, you may find that the defendant is guilty of sexual abuse in the first degree if you believe all of the following beyond a reasonable doubt . . ..”The sodomy instruction contains similar language for sodomy.

The Defendant is charged with trafficking in a controlled substances. At trial, the evidence consists of testimony concerning a controlled buy of cocaine. The tendered jury instructions include the following definition:

“Trafficking”—Means to manufacture, distribute, dispense, sell, transfer or possess with the intent to manufacture, distribute, dispense, or sell a controlled substance.

Defendant is charged with assault with shooting a police officer during a pursuit. The evidence is that while fleeing on foot, the defendant slipped, pulled something out of his waistband, and then fired a shot toward the officer. The officer was struck and injured.

True/False: the court can instruct on intentional and wanton assault in the same instruction

Defendant is charged with murder for shooting the victim. The evidence consists mostly of the defendant’s statement, wherein he admitted to shooting the victim because he was hallucinating and the voices “made me do it.” The court wishes to give the jury a combined instruction permitting the jury to find the defendant guilty if they find he was acting intentionally or with aggravated wantonnness.

Act v. Result Offenses

Act v. Result Offenses

• “Act” (or “Conduct”) offenses are offenses where the offense is defined in terms of the defendant’s conduct. – Ex: TBUT is defined in terms of the act of taking

• “Result” offenses are offense where the offense is defined in terms of causing a particular result.– Ex: Murder is defined as causing the death of

another

Intent and Complicity

Definition of Intentional

“A person acts intentionally with respect to a result or to conduct when his conscious objective is to cause that result or to engage in that conduct.”

Definition of Intentional

“A person acts intentionally with respect to a result or to conduct when his conscious objective is to cause that result or to engage in that conduct.”

Why use definitions at all?

You shall find the defendant guilty under this instruction if and only if you believe beyond a reasonable doubt all of the following:A. That on Date X, the Defendant, Joe Smith,

killed the victim, John Jones, by striking him, and

B. That in striking Joe Smith, it was the Defendant’s conscious objective to cause John Jones’ death.

Complicity

A person is liable under a complicity theory when (with the appropriate mental state) he:(a) Solicits, commands, or engages in a conspiracy with such other person to commit the offense; or (b) Aids, counsels, or attempts to aid such person in planning or committing the offense; or (c) Having a legal duty to prevent the commission of the offense, fails to make a proper effort to do so.

Complicit Mental State

• Complicity statute has two theories of liability, which are based on the mental state of the defendant:– Complicity to Act – Requires that the defendant

engaged in complicit conduct “with the intention of promoting or facilitating the commission of the offense.” KRS 502.020(1).

– Complicity to Result – Requires the defendant to act “with the kind of culpability with respect to the result that is sufficient for the commission of the offense. KRS 502.020(2).

Wanton Murder v. Complicity to the Result

• Wanton Murder = Act is completed when defendant wantonly sets into action chain of events resulting in death (even if at another’s hand)

• Complicity to result = Defendant rendered aid to a person, wantonly disregarding the risk of death created by the aid rendered.

Complicity v. Facilitation

• Complicity is not a separate offense, but a theory of guilt for the underlying principal offense.

• Facilitation is an inchoate offense which is often available in cases which are prosecuted under a complicity theory.

Complicity v. Facilitation

• “Facilitation reflects the mental state of one who is ‘wholly indifferent’ to the actual completion of the crime.” Thompkins v. Commonwealth, 54 S.W.3d 147, 150-51 (Ky. 2001).

Complicity – Exercises

Are you entitled to a facilitation instruction?

Defendant acts as a middleman between drug supplier and drug trafficker, transferring $900 worth of drugs from supplier to trafficker, without remuneration.

True/False: The Defendant is Entitled to a Facilitation Instruction

The defendant is entitled to a facilitation instruction

1. True2. False

True

False

0%0%

The Defendant is Not Entitled to Facilitation Instruction

Trafficking offense was completed when defendant transferred drugs from supplier to trafficker. Defendant not entitled to a facilitation instruction when they are guilty as the principal actor. Commonwealth v. Day, 983 S.W.2d 505 (Ky. 1999).

Lesser Included Offenses

Double Jeopardy v. Instructions

Whether an offense is a “lesser included offense” depends on whether you are discussing double jeopardy, or jury instructions.• Double Jeopardy: Blockburger “same

elements” test.• Instructions: KRS 505.020(2) “same facts” test.

KRS 505.020(2)

A defendant may be convicted of an offense that is included in any offense with which he is formally charged. An offense is so included when:

(a) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or

(b) It consists of an attempt to commit the offense charged or to commit an offense otherwise included therein; or

(c) It differs from the offense charged only in the respect that a lesser kind of culpability suffices to establish its commission; or

(d) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property[,] or public interest suffices to establish its commission.

KRS 505.020(2)

A defendant may be convicted of an offense that is included in any offense with which he is formally charged. An offense is so included when:

(a) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or

(b) It consists of an attempt to commit the offense charged or to commit an offense otherwise included therein; or

(c) It differs from the offense charged only in the respect that a lesser kind of culpability suffices to establish its commission; or

(d) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property[,] or public interest suffices to establish its commission.

Hall v. Commonwealth, 337 S.W.3d 595 (Ky. 2011).

• Court rejects a “same elements” test for jury instructions, because it “may deprive a defendant of an opportunity for a desired lesser-included offense instruction because of differences in statutory elements even where the defendant is willing to concede that additional elements of uncharged offenses are not really at issue in the case.”

Hall v. Commonwealth, 337 S.W.3d 595 (Ky. 2011).

• This means that you are entitled to a lesser included offense instruction in some cases which would not be a lesser included offense for Blockburger purposes.

Lesser Included Offense Exercises

Defendant is charged with Robbery 2nd, for a purse snatching. Testimony at trial shows that the defendant was found in possession of the victim’s cell phone, which was in the purse which was stolen. Defendant denies stealing the purse, but claims he bought the phone off of a friend, who believed it was stolen.

True/False: Defendant is entitled to a lesser included offense instruction for receiving stolen property?

He is entitled to the instruction

• Theft can be lesser of robbery. Jordan v. Commonwealth, 703 S.W.2d 870 (Ky. 1981)

• Receiving can be “lesser” of theft. Conklin v. Commonwealth, 799 S.W.3d 582 (Ky. 1990).

Defendant is tried for one count of murder. The jury returns a verdict of manslaughter, and sentences the defendant to 20 years. The defendant asks if he should appeal.

True/False: If he appeals and is successful, he could be convicted of murder on retrial?

He is not subject to a murder charge

• “[T]he conviction of a defendant of a lesser-included offense constitutes an acquittal of all higher degrees of the offense. Accordingly, if the conviction of the lesser-included offense is reversed on appeal, the defendant cannot be retried upon any other higher degrees of the offense.” Couch v. Maricle, 998 S.W.2d 469, 471 (Ky. 1999).

Before you go . . .

• Fill out your evaluation and let us know what other instructions topics you would like to hear about.

• Send an email to tim.arnold@ky.gov if you are interested in helping with the next generation of instructions material.

• Contact Tim Arnold, Kathleen Schmidt, or the appeals branch if you have instructions questions.

• And most important . . . .

Leave the clickers!