Chapter 51 Instructions to Jury: Objection

• Library: South Carolina Civil Procedure (SCBar) (2020 Ed.)

Chapter 51 Instructions to Jury: Objection Rule 51¹

At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed. No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds for his objection. Opportunity shall be given to make the objection out of the hearing of the jury.

Note:

This is the language of Federal Rule 51. This Rule, as does the Federal Rule, requires the court to inform the lawyers of its proposed action on their requested instructions prior to argument. The language preserves Code § 15-27-100, opportunity to object to charge or request additional charge out of presence of the jury, and present Circuit Court Rule 11.

A. Introduction

Rule 51 enables the parties to submit written requests for instructions on the law. State courts cannot instruct on the facts² nor instruct in a way that indicates the court's view of the evidence.³ Instructions may be submitted at the close of the evidence or when the judge directs. Rule 51 does not state when a request for an instruction is to be made, but it may be untimely if made for the first time after the argument of counsel. An instruction at that time likely prejudices the other party, who would not have had an opportunity to argue the issue to the jury.⁴ However, a request for an instruction may be timely after the jury returns with a question for the court.

The pertinent legal issues should have been identified earlier in the litigation. Rule 16(a) on "Pre-trial Conferences" and 16(c) on "Pre-trial Briefs" obligate counsel to advise the court of the important legal issues and the applicable law. The rule does not specify any format for the instructions.

A treatise authored by one former circuit court judge suggests that each instruction be placed on a separate page, consecutively numbered, double spaced, with citations to the authority supporting the instruction. This practice assists in creating a clear record in the event of an appeal. The author suggests separate copies for the judge and the judge's law clerk.⁵ Copies must be served on opposing counsel at the same time and by the same means used to serve the judge.⁶

B. Standards for Instructions

Instructions should be limited to the legal issues raised directly or implicitly in the pleadings and supported by the evidence.⁷ No instruction should be given on an issue not raised in the trial or which has been abandoned by a party.⁸ Ordinarily, the court has a duty to give a requested instruction that correctly states the law.⁹ However, the instructions are viewed as a whole, and there is no obligation to provide a particular instruction if the subject is adequately covered in other parts of the charge.¹⁰ The judge can correct an erroneous instruction by withdrawing it and correctly instructing the jury.¹¹ Finally, the judge is presumed to have fully instructed on the law if there is no objection before the jury is sent to deliberate.¹²

Although preliminary jury charges may aid the jury's understanding of the trial, the Supreme Court has noted that it is impossible to be prescient with complete accuracy.¹³ Therefore, the Court observed, jury charges given at the beginning of trial will almost never cover all of the relevant law that will be "developed by the evidence."¹⁴ The Court instructed that for this reason, trial courts should reiterate and supplement those charges at the conclusion of the trial.¹⁵

While Rule 51 makes it clear that it is preferable to have all requested charges submitted prior to closing arguments, this is not an absolute rule.¹⁶ The Court of Appeals has held that the court's power to refuse to charge because a request to charge is not timely requested should be used sparingly and cautiously.¹⁷

C. Objections to Instructions

The second sentence of Rule 51 states that the court must notify counsel of its decision about requested instructions before their argument.¹⁸ The attorneys must know the instructions so that they can shape their arguments to the jury on the law expected to be provided by the judge. Moreover, prompt notification of the court's proposed instructions allows counsel to object before argument and the court to make corrections, if necessary.

The judge charges the jury orally, and the jury does not receive copies of the written instructions.¹⁹ The court may, however, permit the jury to take notes.²⁰

Instructions follow the arguments,²¹ so the last time for objections to the instruction is before the jury retires to deliberate. However, where there has been an objection to a charge and an opportunity for discussion and the court denies the instruction, there is no requirement that the objection be renewed before the jury retires for its deliberations.²²

Counsel should note the objections to the charge, including the omission of any requested instructions, before the jury retires. Implicit in this procedure is the right to request additional instructions or clarifications necessitated by the language in the judge's charge.²³

Counsel may object to a charge given in response to an inquiry from the jury.²⁴ Normally, this is done orally rather than in writing.²⁵ The third sentence makes clear that counsel must state the objection and the grounds to preserve the issue for appeal...