9.17 Instructions to the Jury

• Library: Virginia Law and Practice: A Handbook for Attorneys (Virginia CLE) (2020 Ed.)

9.17 INSTRUCTIONS TO THE JURY

9.1701 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.

9.1702 Submission of Proposed Instructions. The Rules of the Supreme Court of Virginia provide that:

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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. ⁶⁴²

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 draw the court's attention to the omission, the omission cannot be raised thereafter as the basis for reversible error. ⁶⁴³

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. ⁶⁴⁴ When there is 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. ⁶⁴⁵ A jury instruction that constitutes an accurate statement of the law cannot be refused simply because it does not conform to Model Jury Instructions. ⁶⁴⁶

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. ⁶⁴⁷

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9.1703 Closing Arguments. Both the commonwealth's attorney and defense counsel have the right to argue their cases to the...