You have been asked to prepare a set of jury instructions and a verdict form for trial. What do you do? Where do you start? In my last op-ed, I talked about the potential grounds for reversible error that may arise from the verdict form. In this op-ed, the last of a 5-part series, I discuss an often over-looked area of concern for reversible error—the court’s reading of the instructions to the jury.
V. The Court’s Reading of the Instructions to the Jury
When the court reads the instructions to the jury, listen and compare them to the instructions the court agreed to give. Make sure they are the same as any written instructions that will be submitted to the jury; if there is any difference between the two, the oral instructions will likely control on appeal.
If there is an error, ask the judge to correct the oral instruction and specifically advise the jury that its initial instruction was given in error. Consider whether a motion for a mistrial is warranted. If you do not move for a mistrial and the jury is told the instruction was incorrectly given and should be disregarded, the issue may be waived. There may also be a waiver if the error is brought to the court’s attention after the jury begins deliberating.
Drafting jury instructions and a verdict form can be challenging, but preparing ahead of time and staying organized will make the process smoother. Start thinking about the jury instructions and verdict form early on and well before the trial starts and continue thinking about them and modifying them in light of the court’s rulings and evidence adduced at trial. And, do not forget to ensure that all requested and given instructions and verdict forms are filed with the court and the record is complete.