A general reminder about the importance of jury instructions

October 2008
By Judge Youlee You, Multnomah County Circuit Court

Jury instructions are sometimes the last things attorneys prepare for trial, but they should be one of the first. You cannot win on just the facts alone. You also must persuade the jury on the law. Therefore, you should be looking at jury instructions early on in your trial preparation and tie the instructions to your closing argument.

When are they due?

Under UTCR 6.060(1) and (2), proposed jury instructions must be in writing, the original and a copy must be submitted to the court, and they must be delivered concurrently to the court and opposing parties. SLR 6.015(4) requires that the proposed instructions be submitted to the trial judge "by noon of the day of trial assignment at daily call by the Presiding Judge."

What happens when you are trying a misdemeanor case and there is no day-before-trial call setting? Check with your trial judge about when the instructions are due. However, instructions should never be submitted any later than the start of trial. As discussed above, jury instructions should not be an afterthought. Additionally, some issues can be hashed out before trial begins, thereby reducing the amount of time the jury has to wait during trial.

Some judges strongly believe it is helpful to the jury to "front-load" as many of the instructions as possible, i.e. greatly expand on the "preliminary and precautionary" uniform instructions at the start of the trial to explain to the jury as much of the law as seems practical. Such expanded preliminary instructions may include basic legal concepts and definitions. You should be prepared to discuss this with opposing counsel and your trial judge before the jury is selected.

Extra electronic copies

Certain judges would like an extra electronic copy of the instructions by email. Find out if this is what your trial judge prefers and to whom the instructions should be emailed. The MBA Judicial Practices Survey has helpful information on each judge's preferences.

Fill in the blanks

UTCR 6.060(3) requires that attorneys fill in the blanks and make selections where the uniform instructions have blanks or various options. Be sure to fill in those blanks and make your selections before submitting your requested instructions to the court and opposing counsel.

New criminal jury instructions

New uniform criminal jury instructions are available to address recent changes in Oregon law. It is important to be aware of these issues, because it takes additional time during trial to finalize these instructions.

1) Mental states

Following recent developments in case law, new uniform instructions were created for the mental states - intentionally, knowingly, and recklessly. These instructions are very different from the old instructions and require attorneys to make selections and fill in blanks.

2) Consecutive Sentences

New instructions based on State v. Ice are being finalized by the Uniform Criminal Jury Instructions committee. The most recent drafts are available from the OSB. In cases where there are numerous counts in the indictment, it may be more practical to instruct the jury on Ice factors after it has returned with a verdict on the underlying counts. That is so because the jury may acquit on all or certain counts, the state may elect to request consecutive sentences only on certain counts, or the defendant may stipulate to certain factors. Consider these issues when preparing and requesting the new Ice instructions.

Don't forget how the new instructions impact the verdict form

Of course, once the instructions have been prepared, additional issues may arise in preparing the verdict form. Ice verdict forms can be complicated and lengthy. Consider the best way to present the questions to the jurors so they are not confused by the verdict form.