Jury Instructions, Deliberations and Verdicts

IPAC Trial Handbook 359-400

Jim OliverBrown County ProsecutorIPAC Chief, Criminal Law

Jury Instructions

o Governed by • Jury Rule 26• I.C. 35-37-2-2• Ind.R.Crim. 8

Jury Instructions

o Plan as you prepare, don’t wait until right before closing:• Use to eliminate problems• Highlight good arguments

o Consider:• Elements• Definitions• Presumptions

Jury Instructions

o Right to tender ten, judge’s discretion to tender more

o Tendered instructions must be in writing and signed

o Each instruction confined to one principleo Judge may accept, refuse, give as modified• Not required to modify

Court’s Refusal to Give Tendered Instruction

o When determining whether to include an instruction, the court considers:• Whether tendered instruction correctly states law;• Whether evidence in the record to support giving the

instruction; and• Whether substance of instruction was covered by other

instructions which were given.o Refusing to include a tendered instruction that

incorrectly states the law is not an error; court is not required to modify it.

Standard for Giving Jury Instruction

o Relevanto Correct statement of law• Patterns presumed to be correct

o Not covered by other instruction

Jury Instructions

o Know your judge• What will she prepare• What she expects you to prepare• What her preferences are

o Know your resources• Pattern instructions on Lexis• There is probably a bank at your office• Look in other similar case files• Call other prosecutors

Special Instructions

o Circumstantial evidence instruction given only if the evidence is solely circumstantial.

o Defendant’s failure to testify instruction given at the election of the defendant.

o Defendant is entitled to have an instruction presented to the jury that they have the right to decide both law and facts in both preliminary and final instructions.

Special Instructions

o Defendant not entitled to instruction stating that absence of motive may be considered as a circumstance favorable to the accused.

o Voluntary Intoxication is not allowed to negate mens rea.o When verdict options include not responsible by reason

of insanity or guilty but mentally ill, court must instruct jury on penal consequences of such verdicts if requested by the defendant.

o When facts raise a reasonable inference that crime carried out with accomplice, jury must be instructed that defendant must have knowledge he was aiding in commission of a crime.

Special Instructions

o Generally, under Madden, saying that you could convict based on uncorroborated testimony of the witness, but it’s dangerous in light of Lundy.

o Attempted Murder: jury must be instructed that the State must prove the defendant acted with the intent to kill – no mention of “knowing” or “knowingly” is appropriate.

Lesser Included Offenses

o Is it a lesser included offense?• Factually included?

o i.e. Voluntary manslaughter lesser of murder.

• Inherently included (elements)?o i.e. Possession Marijuana/MB lesser of Possession of

Marijuana Over ___/MA.

o Is there a “serious evidentiary dispute” that makes the lesser included something the jury might find?• Yes – instruction must be given if requested.

Instructions Highlighting Specific Evidence Disfavored

o Flight/Failure to fleeo Refusal to take breath testo Credibility of specific class of witnesses• Police• Snitches • Children• Eyewitnesses

o Defendant elects whether to have a “defendant didn’t testify” instruction

Jury Nullification

o It is improper for a court to instruct a jury that they have a right to disregard the law.

Other Considerations

o It is proper to instruct the jury that incidental or subsidiary facts need not be proven beyond a reasonable doubt.

o When technical words or legal jargon are used in jury instructions and the words are unfamiliar to the jury, other instructions defining the terms should be given.

o Negative jury instructions are usually superfluous.

Deliberations

o No outside influences allowed:• Books removed from jury room.• All electronic communication devices shall be

collected and held by the bailiff at the start of deliberations.

What goes to the jury room?

o Things to send back:• Instructions• Verdict forms• Exhibits (some authority to exclude limited-

admissibility evidence, like impeachment statements).o Don’t send back:• Dictionaries, encyclopedias• Sources of information other than evidence admitted in

trial• Phones, iPads, computers.

Bouncing a Juror

o Get rid of a juror when he refuses to participate in deliberations.

o Keep a juror if he is just obstinate…not OK just to get to a verdict.

Legal Questions - Jury Rule 28

o Judge confers with parties about question and about answer.

o Options• Answer the question directly• Refer jurors to the instructions• Give a new instruction

o If adding omitted or correcting an erroneous instruction, court must re-read entire instructions so as to not emphasize one instruction.

• Allow counsel to briefly address question in supplemental arguments.

Re-examining EvidenceI.C. 34-36-1-6

o Jurors must explicitly express disagreement about testimony to have it replayed.• If the Court determines the statute applies to the

specific request, it must supply the requested information to the extent of properly admitted testimony or evidence.

o Replaying audio of witness testimony done in open court with all parties present.

Communication with the Jury

o When a court makes an ex parte communication with a jury, an inference of prejudice arises, creating a rebuttable presumption that error has been committed.

o When ex parte communication is harmless:• When trial judge merely responds to a jury question by

denying their request;• When questions asked and the responses given do not go

to the merits of the case or the manner in which the merits are determined;

• When court simply rereads instruction without further comment; and

• Court responds to jury’s announcement that it’s deadlocked.

Communication with the Jury

o A rebuttable presumption of error exists when a bailiff communicates with the jury outside the defendant’s presence.• Applies only to communications relating to the

substantive rights of the defendant.

o Indiana Rule of Professional Conduct 3.5 forbids an attorney from partaking in ex parte communications with jurors.

Deadlocked Jury

o Court must call apparently deadlocked jury into open court in the presence of all the parties and their counsel and reread all instructions given to them, prior to deliberations.

o Jury Rule 28 encourages judge to inquire whether there is anything that it can do to help the jury make a decision.

o No Allen charge allowed: encouraging jurors to compromise their judgment just to reach a verdict.

o If the jury has reached an impasse, a mistrial is the only option.

Deadlocked Jury and Double Jeopardy

o Generally, if a judge dismisses a deadlocked jury, the Double Jeopardy Clause does not bar a new trial.

Returning the Verdict

o Jury Rule 30:• Judge reads the verdict; • Either party can ask the judge to poll the jury;

o If any juror disagrees with the verdict, send them back to deliberate more.

o Generally, a verdict is good if the court can understand it; it is only defective if it is so uncertain that no judgment can be rendered on it.

o A verdict is not final until it is returned in open court, accepted by the judge, and the jury is discharged.

Verdicts

o Generally, jury verdicts are not subject to appellate review on grounds that they are inconsistent, contradictory, or irreconcilable.

o An apparent inconsistency between a jury verdict of acquittal on some counts and its failure to reach a verdict on others does not affect the acquittals’ preclusive force under the Double Jeopardy Clause.

Defective Verdicts

o When the jury’s verdict is defective, it is the court’s duty to refuse to accept the verdict and to return the jury to deliberation so a proper verdict may be rendered. • Defense counsel has a duty to raise defects when

such become apparent.o A jury has the right to change the whole

verdict if instructed to correct its verdict before being discharged.

Juror Misconduct

o A juror can be removed for cause.• Removal must be necessary for the integrity of the process;• Does not prejudice the deliberations of the rest of the panel;

and • Does not impair the right of the parties to a trial by jury.

o Removal only appropriate in the most extreme situations once deliberations have started.• Physical confrontation; attempt to intimidate other jurors;

etc.o Removal should be accompanied by an instruction

that removal in no way reflects approval or disapproval of the views expressed by the juror.