No Written Instruction? Oral Instruction Not Vitiated
August 31st, 2016

This post “Variance Between Reporter’s Transcript And Written Instructions” discussed which instruction controls – for purposes of appellate review – when the written and oral versions of the instruction are different.

A corollary issue arises when a particular instruction was completely omitted from either the written or oral versions of the instruction. In People v. Rojas (2015) 237 CA4th 1298,1305 the defendant contended that an important instruction on juror unanimity was given orally but not included in the packet of the written instructions given to the jury.

The Court of Appeal resolved the question as follows:

California requires augmentation of oral instructions with written instructions only upon request [citation], and even then, the omission of a written instruction does not vitiate its oral counterpart. [Citation.] Rojas acknowledges  that a unanimity instruction was provided orally as to Count 1, and we presume the jury heard the instruction and followed it accordingly. [Citation.]   (Rojas at 1305-06.)

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