PG V(E) When To Instruct.
PG V(E)(1) Timing Of Instructions Generally.
“With regard to the timing of jury instructions on the law . . . trial courts are vested with wide discretion as to when to instruct the jury. [Citation.]” (People v. Smith (2008) 168 CA4th 7, 14; see also People v. Lamb (1988) 206 CA3d 397, 400.)
The federal system provides for the giving of instructions throughout the course of the trial. (See e.g., Ninth Circuit Model Jury Instructions – Criminal (2000)) which divides the instructions into pretrial, midtrial and concluding instructions.)
Viewed objectively, it is difficult to argue with the wisdom of the federal practice. For example, it seems much more logical to give an instruction such as the factors to consider in evaluating the credibility of a witness before the witness has testified rather than after. Similarly, cautionary instructions regarding matters such as extra-judicial evidence would logically best be given before trial. And, an instruction which is intended to limit the use of evidence or caution the jury regarding evidence would be much more efficacious if given at the time the evidence was admitted rather than days later at the conclusion of the trial.
Accordingly, counsel may wish to review the instructions to be given and consider requesting that certain instructions, in addition to those specified in PC 1122(a) [see FORECITE PG V(E)(2)], be given before or during trial. Instructions given prior to or during trial usually should be repeated in the final instructions. (See FORECITE PG V(E)(2) CAVEAT.)
PG V(E)(2) Preinstruction Required (PC 1122(a)).
The practice of preinstructing a jury on general principles of law before opening statements has long been recognized by California appellate courts. (See People v. Valenzuela (1977) 76 CA3d 218, 222, citing cases encouraging preinstruction; see also People v. Smith (2008) 168 CA4th 7; Cohen, Symposium: Communicating with Juries: The Timing of Jury Instructions (2000) 67 Tenn. L.Rev. 681, 688–692 [discussing the advantages to preinstruction in California and nationwide].) As the courts have explained “the purpose of preinstructing jurors … is to give them some advance understanding of the applicable principles of law so that they will not receive the evidence and arguments in a vacuum.” (Valenzuela, supra, 76 CA3d at p. 222.) Moreover, “[c]alling the attention of the jury at the commencement of the trial, to legal problems to be met, if fairly done, may be of great value in enabling the jury to understand the purpose and thus properly evaluate various bits of the evidence.” (People v. Jones (1960) 184 CA2d 464, 473.)
PC 1122(a) requires preinstruction of the jury upon its “basic functions, duties and conduct.” The instruction must include, “among other matters,” admonitions to not converse, to avoid publicity about the case, to not view the scene and to not receive payment for information concerning the trial.
CAVEAT: Failure to repeat instructions given earlier in the trial in the concluding instructions may diminish the impact of the early instruction. “Instruction at the conclusion of trial, rather than before, tends to ensure emphasis and prevent confusion.” (People v. Elguera (1992) 8 CA4th 1214, 1223; see also People v. Smith (2008) 168 CA4th 7, 18.) On the other hand, repetition of an instruction may give it undue emphasis. (See e.g., FORECITE PG V(G)(6) Note; PG IX(C)(3); CC 315.1.1 Inst 2.)
For a preinstruction checklist, see FORECITE CHK V.
PG V(E)(3) New Or Different Instructions After Argument or During Deliberations:
See FORECITE PG IX(H).
PG V(E)(4) Pre-Voir Dire Instruction Of The Jury:
[An article by Maureen O’Connor, Terry Connolly, Bruce D. Sales and John Davis discussing the impact of pre-voir direct instruction of the jury is available to FORECITE subscribers. Ask for Article Bank # A-54.]
PG V(E)(5) Instruction Before Or After Arguments:
While judges have traditionally instructed jurors following the arguments of counsel, there is no requirement that the instructions be given at that time. (See PC 1093(f).) Hence, the court may in its discretion give a major part of the instructions before arguments to assist the jury in understanding the arguments and to avoid the need for lawyers to preview the instructions in their arguments. (See Model Jury Instructions, Criminal (9th Cir. 1995) Ch 3, p. 28; see also, Schwarzer, Communicating With Juries, Problems and Remedies 69 Calif. L.Rev. 731, 768 (1981).
In People v. Murillo (96) 47 CA4th 1104, 1109 [55 CR2d 21] Justice Epstein concluded that the “preferable” method is to instruct the jury after the close of evidence, but before the arguments of counsel, reserving only the concluding instruction (e.g., CJ 17.40 – CJ 17.52) to follow the arguments. “This approach allows the jury to understand the governing rules before hearing from the attorneys about how those rules apply to the facts at hand. It also protects all parties from a careless misstatement of the law in argument, and avoids the awkward and repetitive preface ‘the judge will instruct you….’ Most important, it lays a foundation upon which both parties can build, better enabling the jury to evaluate the relative sturdiness of the arguments constructed.” (Murillo 47 CA4th at 1109.)
PG V(E)(6) When To Instruct: Failure To Repeat Pre-Instructions At End Of Trial.
People v. Chung (97) 57 CA4th 755, 759-60 [67 CR2d 337] held that, in the absence of evidence of juror confusion, it was not error for the trial court to omit, at the end of trial, certain instructions which were given as pre-instructions. InChung, the trial court gave half of the instructions — including those relating to evaluation of the credibility of witnesses — after the opening statements and before the first witness was called. The Appellate Court held that this practice was not prohibited. (PC 1093.)