THE BASICS OF JURY INSTRUCTIONS IN A CRIMINAL CASE

THE BASICS OF JURY INSTRUCTIONS IN A CRIMINAL CASE Anthony Muhlenkamp Frank, Juengel & Radefeld, Attorneys at Law, PC 7710 Carondelet Ave., #350 Clayton, MO 63105 (314) 725-7777 amuhlenkamp@fjrdefense.com

MISSOURI APPROVED INSTRUCTIONS Supreme Court Rule 28.01 Approved Pattern Instructions and Verdict Forms - From time to time this Court shall approve and publish pattern instructions and verdict forms, including accompanying Notes On Use, for use in criminal jury trials. These pattern instructions and verdict forms shall be known as Missouri Approved Instructions Criminal and shall be designated MAI CR according to the approved number and edition.

MISSOURI APPROVED INSTRUCTIONS Third edition Three volumes Buy a copy you will need one in order to practice criminal defense. http://www.courts.mo.gov/ Click on Supreme Court Publications Cost was approximately $450 a necessary investment

NOTES ON USE Every instruction has a notes on use section Read it carefully AGAIN and AGAIN These are basically directions on how to use the specific jury instruction as applied to the facts of your case If necessary, prepare a worksheet so you can explain to the Court later why your version is right and the State s version is wrong (be able to walk the Court through your analysis based on the Notes on Use) A worksheet is especially helpful with complicated instructions

CATEGORIES OF INSTRUCTIONS Boilerplate Instructions (CR3d 300 and 302 series) Verdict Directing Instructions Converse Instructions Defense Instructions (CR3d 306 series) Evidence Related Instructions (CR3d 310 series)

BOILERPLATE INSTRUCTIONS These are given in every criminal case They are usually prepared by the State, but check your circuit for a local court rule 300.02 Before Voir Dire 300.04.1 At the First Recess and Adjournment 300.04.2 At Subsequent Recesses or Adjournments 300.06 After the Jury is Sworn 302.01 Duties of Judge and Jury (after jury is sworn) 302.02 Evidence and Rulings of the Court (after jury is sworn) 302.03 General Instructions (first instruction read to jury at the end of the case) 302.04 Burden of Proof and Related Matters (reasonable doubt instruction) 302.05 Unanimous Verdict (second last instruction in every case) 302.06 Argument of Counsel (last instruction)

VERDICT DIRECTING INSTRUCTIONS Almost always, there is an MAI approved verdict director for every crime a defendant can be charged with The verdict director lists the elements that the State has to prove in its case beyond a reasonable doubt to find the Defendant guilty Pull the verdict director for all charges referenced in the charging document Draft your own copy while tracking the language in the charging document Make sure that this is substantially similar to what the State offers at trial or there is a problem

SAMPLE VERDICT DIRECTOR STEALING WITHOUT CONSENT As to Count 1, if you find and believe from the evidence beyond a reasonable doubt: First, that on or about January 1, 2014, in the City of St. Louis, State of Missouri, the defendant took a laptop computer, and Second, that defendant did so without the consent of Victim Jones, and Third, that defendant did so for the purpose of withholding it from the owner permanently, and Fourth, that the property so taken had a combined value of at least five hundred dollars, then you will find the defendant guilty under Count 1 of stealing. However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.

VERDICT DIRECTING INSTRUCTIONS Use the verdict director to establish which element, or elements, you are going to defend against Try to have the verdict director with you at the preliminary hearing stage also. The State must show probable cause for each element at the PH Some verdict directors are followed by definitions that must be included in the jury instruction. Again, read the Notes on Use to see if this applies to your specific instruction If there is good reason to challenge an approved instruction, you MUST be prepared to object and proffer an instruction that conforms to the law. See State v. Carson, 941 S.W.2d 518.

CONVERSE INSTRUCTIONS MAI CR 3d 308.02 Defendant s Converse This instruction tells the jury when they must acquit the Defendant You have discretion as to which element or elements you want to highlight for the jury

MAI-CR 3d 308.02 [1] Unless you find and believe from the evidence beyond a reasonable doubt that [2] If you have a reasonable doubt as to whether [3] If you find and believe that [Insert the element or elements to be covered in the converse instruction using the language from the verdict director], you must find the defendant not guilty under Count 1 of Stealing as submitted in Instruction No..

MAI-CR 3d 308.02 You should focus your converse on the weakest part of the State s case to focus the jury s attention on that issue Note that a converse instruction cannot converse all of the elements in the verdictdirecting instruction

SAMPLE CONVERSE In the Felony Stealing Verdict Director example from above, suppose that the item stolen was a laptop computer that was purchased in 2007. The victim testified that she purchased the computer then for $800. The Defense may want to highlight the fact that the computer is no longer worth at least $500 (7 years have passed, the computer has depreciated, laptops now are routinely bought for less than $500), and therefore converse the fourth element of the verdict director as follows from MAI CR 3d 308.02: If you have a reasonable doubt as to whether the laptop computer had a combined value of at least $500, you must find the defendant not guilty.

DEFENSE INSTRUCTIONS These are instructions which place some burden of proof on the defendant Examples are Mental Disease or Defect (MAI CR 3d306.02A) Justification/Self Defense (MAI CR 3d 306.06A)

DEFENSE INSTRUCTIONS Mental Disease or Defect (306.02A) The burden rests upon the defendant to prove by the greater weight of the credible evidence that he is not guilty by reason of such mental disease or defect excluding responsibility Justification: Use of Force in Self Defense (306.06A) The state has the burden of proving beyond a reasonable doubt that the defendant did not act in lawful self defense

DEFENSE INSTRUCTIONS The entire 306.00 series includes the mental disease or defect and the different types of justification defenses (self defense; battered spouse; defense of others; use of force in defense of premises; use of force against a law enforcement officer, etc.) In a mental disease or defect case, there is usually going to be expert testimony In a justification case, the defendant will often testify, or other eyewitnesses that can provide a factual basis for self defense You should get these instructions if there is evidence to support the defense. See State v. Westfall, 75 S.W.3d 278 (Mo. 2002). However, to be safe, you should still specifically request it and be prepared to argue to the Court why you should get a specific instruction based on the evidence that was presented at trial Review your Notes on Use again and again these specific instructions are long and confusing the first time you use them

REASONABLE DOUBT MAI-CR 3d 302.04 This is a boilerplate instruction that is read in every case Become familiar with this instruction and be able to apply it to the facts of your case A reasonable doubt is a doubt based upon reason and common sense and careful impartial consideration of all the evidence in the case. Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant s guilt. Be able to articulate this standard Based on reason and common sense, there is a reason to not be firmly convinced that the defendant is guilty Therefore, you MUST find him not guilty

EVIDENCE INSTRUCTIONS 310.00 Series These are instructions that apply to specific fact patterns Many of them will be helpful for the criminal defense attorney Become familiar with them so you can request them from the Court if they fit the facts of your case

MAI-CR 3d 310.06 CONFESSION OR ADMISSION OF DEFENDANT Consider this instruction when your client makes a statement to the police that comes into evidence If freely and voluntarily made, the jury may give it such weight as it believes it deserves If jury finds that the defendant did not make the statement, or that it was not freely and voluntarily made, then it must be disregarded and given no weight If your client made a confession/statement that you cannot suppress, and there is evidence of coercion or threats by the police, be prepared to request and argue this instruction to the jury

MAI-CR 3d 310.08 PRESENCE AT OR NEAR THE SCENE The presence of a person at or near the scene of an offense at the time it was committed is alone not sufficient to make him responsible for the offense, although his presence may be considered together with all of the evidence in determining his guilt or innocence This instruction should only be given if the State s theory of guilt is based on accessory liability (MAI CR 3d 304.04 It is useful when arguing that your defendant was simply there, and did nothing to aid or encourage the principal actor that committed the crime

MAI-CR 3d 310.14 IMPEACHMENT OF A WITNESS OTHER THAN DEFENDANT BY PRIOR OFFENSES If you find and believe from the evidence that a witness was convicted of/pled guilty to an offense, you may consider that evidence for the sole purpose of deciding the believability of the witness and the weight to be given to his testimony Useful instruction if the State s witnesses have priors The obvious conclusion to be argued to the jury is that they cannot be believed, they are not trustworthy, because they have too much baggage

MAI-CR 3d 310.28 ENTRAPMENT A person is entrapped into conduct if a law enforcement officer, for the purpose of obtaining evidence of the commission of an offense, solicits, encourages, or otherwise induces another person to engage in conduct when he is not ready and willing to engage in such conduct The state has the burden of proving beyond a reasonable doubt that the defendant was not entrapped into the conduct submitted in Instruction No. Was your client ready and willing to engage in the criminal conduct, or was he simply solicited into doing something illegal when he otherwise was not going to do it? In order to get this instruction, there must be evidence of governmental inducement and an absence of a willingness to engage in unlawful conduct. See State v. Willis, 662 S.W.2d 252 (Mo. banc 1983); Notes on Use 2.

MAI-CR 3d 305 SERIES PENALTY INSTRUCTIONS In a bifurcated trial (with jury, not judge sentencing) you should be prepared for these also Was your client proven up as a prior offender? If not, it should be a bifurcated trial with jury sentencing Or, did you waive jury sentencing in writing before the trial? Remember that with jury sentencing you can voir dire as to punishment ranges also whereas you generally will be shut down if you voir dire on punishment when there is no jury sentencing In a jury sentencing case, be prepared to argue for the minimal sentence (MAI CR 3d 305.01)

NON MAI INSTRUCTIONS Occasionally there is no approved instruction for the offense charged In such cases, the verdict directing instruction should be simple, brief, impartial, free from argument and without evidentiary detail (Supreme Court Rule 38.02(d)) The instruction should closely track the words of the statute, and technical terms should be defined if necessary. See State v. Williams, 740 S.W.2d 345 (Mo. Ct. App. E.D. 1987)

PROVIDING INSTRUCTIONS It is counsel s duty to supply the instructions that counsel requests to be given. (Supreme Court Rule 28.02(b)) Failure of defense counsel to request instructions will waive any objection to the court s failure to give them. (Supreme Court Rule 28.03) Prepare three dirty copies and one clean copy A dirty copy says at the bottom left hand corner: MAI CR 3d xxx.xx Submitted by Defendant

PROVIDING INSTRUCTIONS A clean copy is the same as the dirty, but with no notations in the bottom left hand corner (This is the one the jury would receive if it is given) In practice, also have all of your proposed instructions saved on a disc or a zip drive in case you need to make changes at the courthouse and cannot get back to your office

PROVIDING INSTRUCTIONS LESSER-INCLUDED OFFENSES This issue arises when your defense is: the Defendant is guilty of something, but he is not guilty to the degree with which the State charged him For example, when the Defendant is charged with felony stealing or felony assault, his defense may often be that he is only guilty of misdemeanor stealing or misdemeanor assault In the stealing example, it may be because the value of the property was not over $500, therefore he is only guilty of misdemeanor stealing In the assault example, it may be because the defendant recklessly caused physical injury instead of knowingly caused physical injury, therefore he is only guilty of misdemeanor assault

LESSER-INCLUDED OFFENSES The court is not required to instruct on a lesser included offense unless the defendant specifically requests it. See State v. Black, 50 S.W.3d 778 (Mo. 2001) An instruction on a lesser included offense is appropriate only when it is impossible to commit the greater offense without committing the lesser, State v. St. George, 215 S.W.3d 341 (Mo. Ct. App. S.D. 2007) AND there is evidence in the record which would permit a jury rationally to acquit the defendant of the greater offense and convict of the lesser, RSMo 556.046.2 and State v. Pond, 131 S.W.3d 792 (Mo. 2004) Doubts should be resolved in favor of giving requested instructions on lesser included offenses. State v. Williams, 313 S.W.3d 656 (M0. 2010) An instruction on a lesser included offense is usually required even if the only basis for acquittal of the higher degree is an inference that the jury could draw; there need not be any affirmative evidence in the record of the lack of an essential element of the higher offense. State v. Pond, 131 S.W.3d 792 (Mo. 2004)

LESSER-INCLUDED OFFENSES If you are trying to get one, make sure you have the verdict director prepared for the lesser included offense and offer it to the Court Make sure you are able to argue why it should be admitted (there is a factual basis for it, certain witnesses testified to these facts, the State never presented evidence of this element, etc.) Make a clear record during the jury instruction conference as to why your lesser included instruction should be given in order to preserve the issue Failure to give a lesser included offense instruction when warranted by the evidence has been found to be plain error requiring a new trial. See State v. Cole, 248 S.W.3d 91 (Mo. Ct. App. S.D. 2008)

JURY INSTRUCTION CONFERENCE These usually take place in chambers with the court, reporter, and attorneys present They may be conducted before the conclusion of all the evidence if it is convenient Judges do these differently. Make sure you communicate with the court and find out when they normally do the instruction conference. Also, some judges will want your proffered instructions prior to the conference in order to review them. In practice, the jury instruction conference is where each party submits their instructions and also states any objection they have to the instructions Have four copies ready for each proffered instruction (3 dirty and 1 clean)

JURY INSTRUCTION CONFERENCE PRESERVING YOUR OBJECTION In practice, almost all objections to instructions are raised during the instruction conference. All objections to instructions must be made before the jury retires to deliberate. (Supreme Court Rule 28.03) The objection must distinctly state their grounds and the error complained of. (Supreme Court Rule 28.02(f) and 29.11(d)) If an objection is properly preserved, an error in jury instructions is usually reversible error, unless it can be found harmless beyond a reasonable doubt. See State v. Carpenter, 57 S.W.3d 405 (Mo. Ct. App. S.D. 2001)

JURY INSTRUCTION CONFERENCE PRESERVING YOUR OBJECTION If a party objects to the giving of an instruction in a particular form, or objects to the court s failure to give an instruction, the objection is NOT preserved unless the party proffers an instruction in the form requested Refused instructions are marked and filed with the court file so that they can be addressed on appeal (Supreme Court Rule 28.02(e) Bottom line make sure you have your proffered instructions ready and offer them to the court along with an argument as to why they should be included

MAI-CR 3d 350 SERIES EXAMPLES Series 350.00 at the back of the Missouri Approved Criminal Instructions contains a number of clear examples on how to use the instructions given different fact patterns Use these examples as a resource to make sure you understand the instructions.

VALUABLE RESOURCES Missouri Approved Instructions (MAI CR 3d) Missouri Criminal Practice Handbook (by Judge Robert H. Dierker

QUESTIONS??? Feel free to call or email me if you have a question about a criminal jury instruction or any other general questions about criminal litigation. Anthony Muhlenkamp Frank, Juengel & Radefeld, Attorneys at Law, PC 7710 Carondelet Ave., #350 Clayton, MO 63105 (314) 725-7777 amuhlenkamp@fjrdefsnee.com