The Art of the Jury Instruction: Ask for the Moon and Object Often

November 22, 2022

By Sara Kropf

Jury instructions are a key part of any criminal trial.

They matter at trial itself since the jury will rely on them to evaluate whether your client is guilty or not.

They matter just as much on appeal; problems arising from jury instructions are some of the few legal errors that can lead to the reversal of a conviction.

This dual role means that trial counsel needs to push for the best possible instructions during the trial AND needs to do so with an eye towards a possible appeal. We’d all love to think we will win at trial but we more often come in second, so to speak.

In many criminal cases, federal and state courts have “pattern instructions” to follow. These are standard instructions that have generally been approved by an appellate court in that jurisdiction. For example, if you are charged with possession of a firearm during a drug trafficking crime in Illinois, the trial court will follow the Seventh Circuit’s pattern instruction for that offense.

The trial court faces very little risk of reversal on appeal if it uses the pattern instructions. It’s the safest bet.

The jury instructions for common white-collar crimes—like conspiracy or wire fraud—will also be included in these pattern instructions,. But when the Department of Justice pushes a new theory of liability under the law, there are often no pattern instructions for that new theory. Those kinds of cases create an opportunity for defense counsel to push hard at trial for a helpful instruction and simultaneously set up an issue for appeal.

Novel theory by DOJ = better chance to win on appeal.

Rule 30 – The Basics

Let’s back up. Rule 30 of the Federal Rules of Criminal Procedure governs jury instructions. Here are the key parts:

How to make a request for an instruction. “Any party may request in writing that the court instruct the jury on the law as specified in the request.” Rule 30(a).

Timing for requests: A request for an instruction “must be made at the close of the evidence or at any earlier time that the court reasonably sets.” Rule 30(a).

Timing for the court’s ruling: “The court must inform the parties before closing arguments how it intends to rule on the requested instructions.” Rule 30(b) (emphasis added).

Objections to instructions: If a party objects to the instructions, the party “must inform the court of the specific objection and the grounds for the objection before the jury retires to deliberate.” Rule 30(d).

Result of not objecting: A party’s failure to object “precludes appellate review, except as permitted under Rule 52(b),” which is the “plain error” standard discussed more below. Rule 30(d).

How Jury Instructions Are Reviewed on Appeal (This Sounds Boring but It’s Important)

If a defendant challenges the jury instructions, then the court of appeals will look to “whether, taken as a whole, [the jury instructions] accurately state the governing law and provide the jury with sufficient understanding of the issues and applicable standards.” United States v. Washington, 106 F.3d 983, 1002 (D.C. Cir. 1997).

In good news, a defendant’s claim that the court did not give a required instruction is reviewed de novo, meaning that the court of appeals takes a fresh look at the issue and need not defer to the trial court’s decision. United States v. Hurt,  27 F.3d 1347, 1351 (D.C. Cir. 2008).

However, as Rule 30(d) makes clear, if trial counsel does not object to the jury instructions during the trial, then the court of appeals will only review them for “plain error.” This is a nearly impossible standard to meet. The defendant must show that (1) he did not intentionally give up the instruction, (2) the error in the instruction is “clear or obvious,” and (3) it is reasonably probable that the outcome of the trial would have been different if the correct instruction had been given.

Most of the time, plain error = convictions upheld. (Lots of fake math sentences today!)

You need to pay attention to Golden Rule #2 below.

Golden Rule of Jury Instructions #1: Ask for the Moon

No matter the case or the charge, do your research. Even if your circuit has a pattern instruction, see what other courts have done. If another court has approved a better instruction, then ask for it, cite the other court, and explain why the other instruction is a better statement of the law in your case. You may not get the instruction you want, but it preserves the issue for appeal. You never know: maybe you’ll catch the judge on a good day, and she’ll give you a better instruction.

If this is a new area of the law, or a new theory of criminal liability, then ask for the moon. Find the best possible interpretation of the statute and ask for an instruction based on that case. You are in the Eastern District of Virginia and you found a great case from the District of Idaho? CITE IT. You have absolutely nothing to lose from pushing your trial judge to give you a good instruction.

You should also consider whether the unique fact pattern in your case means that the pattern instruction should be adjusted. Or maybe your fact pattern raises a specific defense, and you should ask for a separate instruction about that defense theory.

I recently asked for an instruction in a bribery case based on a single sentence in a DOJ brief in a criminal appeal in California a few years earlier. I’ve asked for instructions citing a law review article. I don’t recommend the latter, but if that’s all you have, then cite it.

Of course, you don’t want to ask for something absurd. If the court of appeals has rejected the exact language you want, it’s likely not worth the effort. But if you are asking for something that hasn’t yet been considered by the court of appeals, then try it.

Golden Rule of Jury Instructions #2: Object and Then Object Again

If you don’t like the instructions proposed by the government, then you need to object to them in writing. If you don’t object at trial—and propose an alternative instruction in writing—then there is very little chance that you will win a reversal of your client’s convictions on appeal because of the pesky plain error rule.

In a perfect world, you would submit a full brief on why your proposed instructions are good and the government’s instructions are bad. You would cite all the case law on your side, even if it is out of circuit. You would address why your own circuit’s instruction is confusing for the jury, or biased for the government or contradicts other case law, or does not fit the facts here, or whatever argument you have.

If you are pressed for time, though, at least submit your own proposed instructions with citations to some support. This should be enough to preserve an issue for appeal.

If the court gives you draft instructions mid-way through trial, you can object to them too. You don’t have to restate previous objections but if the judge adjusts an instruction, but not enough to satisfy you, then put your renewed objection on the record. Make it clear why you still object to the instruction. This does not have to be a lengthy argument if you know the judge has made up her mind, but you must object to each new version of the instructions.

Plus, sometimes the judge does not understand your point about your proposed instructions until she sees how the trial plays out. It can be worthwhile to renew your proposed instructions near the close of evidence to explain to the judge why the evidence at trial supports your instruction (or why it does not support the government’s proposed instruction). You have to keep objecting at every stage of the trial. You can do it politely and need not belabor it, but if you don’t make your record that you object to the instructions, you can hurt your client on appeal.

Keep fighting the good fight.

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