Jury Instructions
June 2014 DPA Annual Conference
Ethics of Preservation:
“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
“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– Instruction withdrawn by defense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 tendering
2. Make sure tendered instructions are in the
record
3. Move to adopt tendered instructions
4. 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.
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 . . .
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)
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. True
2. False
se
0%
Fa
l
Tr
ue
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 lesserincluded 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).
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