Role of Jury Instructions

Jury Instruction Requests and Objections

Role of Jury Instructions

Juries decide the facts, and judges decide the law. Because of that division, the court must tell the jurors, before the case goes to them, what law to apply to the facts they find.¹ Those instructions, also called the charge, are the only bridge between the evidence the jury heard and the verdict it may return. They tell the jury which facts it must find to render a verdict for either party.² In general, they explain the substantive principles, allocate and define the burdens of proof on the issues, and add standard admonitions about how to deliberate and the need to decide on the evidence.³

Suppose a jury sits through three days of testimony in a contract dispute. At the end it knows what the witnesses said, but the testimony does not tell the jurors which of those facts the law treats as decisive, which side must prove each one, or how heavy that burden is. The charge supplies those answers. It also leaves something to the jury. A court is not required to comment on specific evidence while instructing, and it is often well-advised not to, because such comments risk removing from the jury its critical task of assigning weight to the evidence.⁴ The judge states the law, and the jury weighs the proof.

The charge has to be right when it is given, because the circumstances in which a verdict may be attacked afterward are very limited, and a jury's failure to understand or follow the instructions is rarely one of them.⁵ A reviewing court will set aside a verdict and order a new trial only if the instructions, viewed as a whole, inaccurately state the law or confuse or mislead the jury, and the error prejudiced the party that lost.⁶ The system therefore concentrates its effort on the period before the jury retires, when a mistake can still be fixed cheaply.

The work of producing the charge is divided between the parties and the judge. Under Federal Rule of Civil Procedure 51, at the close of the evidence or at any earlier reasonable time the court orders, a party may file and furnish to every other party written requests for the instructions it wants.⁷ In practice the parties draft the instructions and submit them, with copies to adverse parties, before the proof is finished, and judges often expect and get instructions before trial even begins.⁸ Counsel usually supply suggested instructions because the parties know the issues best, and the two sides often disagree about how the court should instruct.⁹

The decision belongs to the court. It determines the applicable legal standards and chooses the instructions that best state them.¹⁰ The trial court has broad discretion over the form and content of the instructions and is not required to accept those the parties offer, so a party has no right to see its own wording given.¹¹ Many courts draw on pattern instructions, wording that a jurisdiction has formally approved as correct. Some places make them mandatory on certain issues, and courts use them even where they are not mandatory because an approved instruction will not result in a reversal. But pattern instructions are not drafted for the benefit of jurors, and they tend to be as hard to understand as instructions counsel propose case by case. Courts must recognize the need for instructions that are as short as possible, comprehensible to ordinary citizens, and arranged logically, so that jurors know what they are deciding.¹²

The parties' last role is to object, and the rule builds the opportunity into the schedule. Before instructing the jury and before final jury arguments, the court must inform the parties of its proposed instructions and its proposed action on their requests.¹³ It must also give them an opportunity to object on the record and out of the jury's hearing, before the instructions and arguments are delivered.¹⁴ A party who dislikes a proposed instruction must object before the instruction is given.¹⁵ A party must likewise object on the record to the failure to give an instruction.¹⁶ The timing follows from the purpose. An error caught while the judge is still deciding what to say costs a few minutes of redrafting, but the same error discovered after the verdict may cost a new trial.

Instructions are not confined to the closing charge. A judge may also instruct on evidentiary matters, for example by telling the jury to disregard certain testimony or information a question suggested. Such curative instructions are often given when the incident occurs and repeated at the end, and their purpose is to save the verdict from reversal for the errors that inevitably arise during trial. On some points a curative instruction cannot work and may even backfire by emphasizing the very point it asks the jury to forget.¹⁷ The court may instruct at any time before the jury is discharged.¹⁸

The order of events, which organizes the rest of this chapter, runs as follows:

1. A party files written requests for the instructions it wants, at the close of the evidence or at any earlier reasonable time the court orders.¹⁹
2. The court tells the parties which instructions it proposes to give and what it proposes to do with their requests, before it instructs the jury and before final arguments.²⁰
3. The parties get an opportunity to object on the record, out of the jury's hearing.²¹
4. A party that disagrees objects on the record to the instruction or to the failure to give one.²²
5. The court instructs the jury, and it may give further instructions at any time before the jury is discharged.²³
6. If the verdict is challenged, the reviewing court reads the instructions as a whole and asks whether they misstated the law or misled the jury and whether the error prejudiced the loser.²⁴

The sections that follow take these steps in turn: how to request instructions, what entitles a party to the ones it requested, how to object, and what survives for appeal.