Preservation of Instructional Error

• Library: Objections Guidebook (2022 Ed.)

Preservation of Instructional Error

Criminal Cases

· To preserve instructional error at trial, counsel:

shall submit to the court instructions and verdict forms that the party requests to be given. Instructions and verdict forms that a party requests shall be submitted in writing with an original and one copy for the court and one copy for each party. Each copy shall contain a notation at the end of the instruction as follows: “MAI-CR ______,” “MAI-CR _____ Modified,” or “Not in MAI-CR_____,” as the case may be.

Rule 28.02(b).

· Rule 28.02(d) requires that:

If an MAI-CR form must be modified or if there is no applicable MAI-CR form, the modified form or the form not in MAI-CR, if given, shall be simple, brief, impartial, and free from argument. It shall not submit detailed evidentiary facts. All instructions, where possible, shall follow the format of MAI-CR instructions, including the skeleton forms therein.

· The instructions refused shall be marked by the court, identified alphabetically, filed, and kept as a part of the record of the case. Rule 28.02(e).

· Under Rule 28.03:

Counsel shall make specific objections to instructions or verdict forms considered erroneous. No party may assign as error the giving or failure to give instructions or verdict forms unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection. Counsel need not repeat objections already made on the record prior to delivery of the instructions and verdict forms.

· Defendant must specifically object to an instruction before its submission to the jury to preserve the issue for appeal, and the objection must be reasserted in the motion for new trial. Rules 28.03 and 29.11(d).

· Vague and non-specific assignments of error in a motion for new trial will not preserve an instruction issue for appellate review. See, e.g., State v. Reed, 640 S.W.2d 188, 193 (Mo. App. W.D. 1982).

· If the instructional error in the motion for new trial concerns the trial court’s failure to give an instruction, the motion for new trial must cite what evidence was considered sufficient to warrant the giving of the instruction. State v. Beavers, 553 S.W.2d 547, 548 (Mo. App. W.D. 1977).

Be sure the instructions you submit correctly conform to MAI.

Carefully read the Notes on Use.

If you submit an incorrectly worded lesser instruction, it will not be error on appeal.

· State v. Blurton, 484 S.W.3d 758, 768 n.7 (Mo. banc 2016): There is no plain error in a trial court failing to give a non-mandatory requested instruction that incorrectly states the law, and a trial court is not obligated to correct a non-mandatory instruction (limiting State v. Derenzy, 89 S.W.3d 472 (Mo. banc 2002), plain error rule to mandatory instructions that must be given by court).

In 2014, caselaw revolutionized the law of lesser-included offenses and made it much easier for the defense to get...