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CHAPTER 12: OUTLINE OF A TRIAL - Table of Contents

12.1 - Introduction12.2 - Pretrial Matters12.3 - Jury Selection12.4 - Opening Statement12.5 - Prosecution Case-in-Chief12.6 - Motion For Judgment of Acquittal/Directed Verdict12.7 - Defense Case-in-Chief12.8 - Rebuttal and Surrebuttal12.9 - Witness Examination12.10 - Jury Instructions12.11 - Closing Argument12.12 - Jury Deliberations12.13 - Motions For Mistrial12.14 - Miscellaneous Issues

12.10 JURY INSTRUCTIONS AND DELIBERATIONS

GENERAL

Jury instructions are written statements of the law prepared by the judge and the lawyers for the jury. Historically, jury instructions were given almost exclusively at the conclusion of all the evidence. Now, in Colorado state court, some of the instructions are read to the jury at the outset of the case. Others are read to the jury as they become relevant during the presentation of the evidence. All of the instructions are read to the jury by the judge at the close of all the evidence and before closing arguments by counsel. A set of the instructions is given to the jurors to take with them to the jury room while they deliberate. Colorado Supreme Court committees have put together a volume of jury instructions for civil cases and another for criminal cases. Lawyers and trial judges rely heavily on these form instructions, but it is important to remember that these pattern instructions are still subject to scrutiny from the courts for accuracy and fairness.

Instructions tell jurors the law that they applies to the facts that the jurors have found to be true after hearing the evidence. Generally, the court has a set of standard instructions prepared; other times that duty is imposed on one or both counsel. The standard instructions cover such topics as the burden of proof, the elements of the charge or claim, the way to evaluate the credibility of witnesses and other similar topics that arise in every trial. Case-specific instructions set out the elements of any charge, claim or defense, and address any specific evidentiary issues that may have arisen during the trial. Instructions also give counsel the opportunity to advance to the jury, under the approval of the court, counsel's theory of the case.

At the conclusion of the evidence, the court and counsel will discuss all instructions that are proposed and tendered by both sides. Most instructions are pretty basic and straightforward, but disagreements may arise as to whether a particular instruction is justified in light of the facts presented at trial, or whether it is an accurate statement of the law. In these instances, the trial court will hear the arguments of counsel outside the presence of the jury. Once the Court determines the form and order of the instructions, counsel must make a record of any objections and tender any instructions the Court has refused to give. Generally, a failure to object to instructions prior to their submission to the jury, or to otherwise make a record about jury instructions, will preclude appellate review. The court will read the instructions to the jury before the closing arguments of counsel.

The process for preparing and giving instructions in federal court is similar. One difference is that the instructions are generally read to the jury after (not, as in state court, before) closing arguments.

INSTRUCTIONS ON LESSER OFFENSES

Sometimes in criminal cases, either the defense or the prosecution may want to present the jury with the option of acquitting the defendant of the offense charged, but convicting him of some less serious offense. Prosecutors might be concerned that the evidence hasn't completely convinced the jury that the defendant is guilty of the crime charged, or defendants may realize that it is unrealistic to hope for a complete acquittal. In such cases, either side can ask the court to instruct the jury to consider whether the defendant is guilty of some lesser offense.

Lesser-included offenses are offenses in which every element of the lesser-included offense is present in the more serious offense, the only difference being that the more serious offense requires one or more additional elements. For example, simple robbery is a lesser-included offense of aggravated robbery because every element of simple robbery is included in the offense of aggravated robbery; the only difference between the two is that aggravated robbery contains the additional requirement that the robber be armed with a deadly weapon.

Lesser non-included offenses have similar elements to the more serious offense charged, but also contain at least one element that is different. For example, a defendant charged with DUI might ask the judge to instruct the jury on the offense of careless driving, even when that offense is not charged, if the defendant wanted to admit responsibility for driving carelessly but still seek an acquittal on the DUI charge. As long as the evidence supports instructing the jury on the non-included offense, the trial court should grant the defendant's request. A prosecutor is entitled to submit lesser non-included offenses only if the charging document gives the defendant sufficient notice that he might have to defend against a lesser, uncharged offense. Otherwise, this would be a violation of the defendant's right to notice of the charge against him.

THEORY OF DEFENSE

In Colorado, a criminal defendant is entitled to an instruction on his theory of the case when there is evidence to support that theory. The 'theory of the case' for the prosecution in a criminal case is simply the elements of the crimes charged. The plaintiff and defendant in civil cases get their theories of the case presented to the jury through the instructions outlining the claims and defenses that have been raised by the parties.

A properly worded instruction setting forth a theory of the case should be given by the trial court unless the theory is encompassed in other instructions. No matter how improbable or unreasonable the theory may be, a party is entitled to an appropriate instruction upon the hypothesis that it might be true. However, the theory cannot be a mere fanciful invention of counsel nor one involving an impossibility. A judge is not required to tender a theory of the case instruction that embodies incorrect or misleading statements of the law.

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