11.5 Instructions to the Jury

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

11.5 INSTRUCTIONS TO THE JURY

11.501 Procedure. After all the evidence has been presented, the defense may and should move to strike the prosecution's evidence as insufficient. If this motion is denied, the next step is a hearing out of the presence of the jury to determine the instructions to be given to the jury.

A. Submission of Proposed Instructions. The Rules of the Supreme Court of Virginia provide that:

If directed by the court the parties shall submit proposed instructions to the court at such reasonable time before or during the trial as the court may specify and, whether or not proposed instructions have been submitted earlier, the parties may submit proposed instructions at the conclusion of all the evidence. ²⁸⁶

It is the duty of counsel to aid the court in instructing the jury. The very purpose of permitting requests to charge is to fully inform the jury as to all the law governing the case and to enable the trial court to correct at once any mistake that may have been made in instructing them. Where the charge of the court does not cover all phases of the case, counsel is required to call attention to the omission, by appropriate request. Where counsel fails to

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draw the court's attention to the omission, the omission cannot be raised thereafter as the basis for reversible error. ²⁸⁷

Both the Commonwealth and the defendant are entitled to appropriate jury instructions on the law applicable to their versions of the case. Under normal circumstances, however, the court is under no obligation to amend or correct a proffered instruction that contains a misstatement of law, except that where the misstatement relates to a principle of law that is essential to the defendant's case, it is reversible error for a court to refuse to correct it and give it in proper form. ²⁸⁸ When there is more than a scintilla of evidence in the record to support the defendant's theory of defense, the trial court may not refuse to grant a proper instruction proffered on that theory. ²⁸⁹ A jury instruction that constitutes an accurate statement of the law cannot be refused simply because it does not conform to Model Jury Instructions. ²⁹⁰

The defendant has the right to instruct the jury on alternative theories of defense, and a court's failure to allow such alternative instructions constitutes structural error, requiring automatic reversal. ²⁹¹

B. Objections. Before instructing the jury, the court must advise counsel of the instructions to be given and must give counsel the opportunity to object to them. Objections must be made out of the presence of the jury and before the court instructs the jury, unless the court grants leave to make objections at a later time. ²⁹²

When a trial court rejects an instruction proffered by a defendant that is a correct statement of law and is supported by adequate evidence in the record, the court's rejection of the instruction, without more, will preserve for appeal whether the trial court erred in refusing the instruction. ²⁹³ The

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reviewing court must view the evidence in the light most favorable to the proponent of the refused instruction. ²⁹⁴

C. Form. It is the duty of the court at the proper time to instruct the jury on all elements of the offense and principles of law applicable to the pleadings and the evidence. ²⁹⁵ A judge's responsibility and duty to instruct the jury is an imperative one that can neither be evaded nor surrendered. ²⁹⁶ An appellate court's responsibility in reviewing jury instructions is to see that the law has been clearly stated and that the instructions cover all issues that the evidence fairly raises. It is elementary that a jury must be informed about the essential elements of the offense. A correct statement of the law is one of the essentials of a fair trial. ²⁹⁷ A defendant's alibi is an affirmative defense and requires a jury instruction even though it is not an element of the offense that the Commonwealth must prove. If the facts of the case support such an instruction and the defendant requests it, it should be granted. ²⁹⁸

In a felony case, the court must instruct the jury before arguments of counsel to the jury and after all the evidence has been introduced, and the instructions must be reduced to writing. ²⁹⁹ This has customarily been interpreted as requiring the trial court to recite to the jury from the approved written instructions prepared by the court or submitted by counsel. The Rules of the Supreme Court of Virginia are not clear as to whether the written instructions may be taken into the jury room during its deliberation, but by custom they normally are taken to the jury room. Certainly no statutory provision precludes it. It is also proper for the trial judge to fully and completely respond to a jury's inquiry concerning its duties. ³⁰⁰

The court may require counsel to submit proposed jury instructions in advance. However, regardless of whether advance instructions have

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been submitted, parties may submit proposed instructions at the conclusion of all the evidence. ³⁰¹

11.502 Purpose and Scope.

A. Purpose. The purpose of the instruction is to aid the jury in reaching the correct conclusion, so the instruction should be a simple, impartial, clear, and concise statement of the law applicable to the evidence in the case. ³⁰² Defense counsel should constantly bear in mind that it is the jury's responsibility to ascertain the facts of a case and to apply the facts as they find them to the court's instructions, which contain the law of the case. This function of the jury to ascertain the facts is zealously guarded, and a jury should not be "influenced in any manner by the words or conduct of the trial judge, directly or indirectly, explicitly or by innuendo." ³⁰³

B. Required Instructions.

1. Burden of Proof and Reasonable Doubt. The jury must be instructed that the Commonwealth must prove each element of the offense beyond a reasonable doubt. ³⁰⁴ The "beyond a reasonable doubt" standard is a requirement of due process, but the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so. The court is only required to instruct the jury that the defendant's guilt must be proven beyond a reasonable doubt, and the Constitution does not require that any particular words be used. ³⁰⁵ Attempts to refine the definition of "reasonable doubt" have been discouraged by the Virginia courts. The Constitution does not mandate any particular language as long as the instructions, taken as a whole, convey the concept of reasonable doubt. ³⁰⁶

2. Presumption of Innocence. Next to the reasonable doubt instruction, the instruction on the presumption of innocence is the keystone instruction and is frequently the basis of the defendant's final argument.

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The United States Supreme Court has held that failure to give a requested instruction on the presumption of innocence does not in and of itself violate the Constitution. ³⁰⁷ According to the Court, the failure must be evaluated in light of the totality of the circumstances, including all the instructions to the jury, the arguments of counsel, the weight of the evidence, and other relevant factors, to determine whether the defendant received a fair trial. The Virginia Supreme Court has held that the defendant is entitled to the instruction. ³⁰⁸

3. Defendant's Failure to Testify. ³⁰⁹ Upon his or her request, the defendant is entitled to an instruction advising the jury that his or her failure to testify creates no presumption against him or her and that in considering the accused's innocence or guilt, the jury is not permitted to consider the failure of the accused to testify. ³¹⁰ As a practical matter, counsel should carefully consider the wisdom of seeking such an instruction since it merely emphasizes what already may constitute a negative factor in the minds of jurors. It is not reversible error, however, for a judge to give the instruction on defendant's failure to testify, even though the defense did not request the instruction. ³¹¹

11.503 Content of Instructions.

A. In General. While an instruction should not be so phrased as to invade the province of the jury, counsel should bear in mind that a litigant is entitled to have an instruction given based on his or her theory of the case, such as self-defense, alibi, intoxication, entrapment, ³¹² or insanity, as long as there is credible evidence to support such a theory. ³¹³ In addition, the court is

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required to instruct the jury on all elements of the offense, and this burden is not discharged by simple reference to the indictment or by reading the applicable statute to the jury. ³¹⁴ Finally, the court should not single out for emphasis a part of the evidence tending to establish a particular fact. ³¹⁵

In response to a juror's question about why a particular witness was not called, the trial court properly instructed the jury that they should not go outside the evidence presented and speculate on why other evidence was not presented. ³¹⁶ A juror's question to the court during deliberations cannot be extrapolated into a binding factual finding by the jury as a whole; the jury speaks only through its unanimous verdict. ³¹⁷

B. Lesser-Included Offenses. The court must, upon request of counsel, submit to the jury instructions on any offense that is a lesser-included offense of the crime charged and upon which the evidence would support a conviction. ³¹⁸ A lesser-included offense is one composed entirely of the elements that are also elements of the greater offense. For instance, possession of a controlled substance...