Concept
Instructing Before Discharge
Requests for and objections to jury instructions
Instructing Before Discharge
A court may instruct the jury at any time before the jury is discharged.1 Rule 51(b)(3) says so in a single clause, and the clause answers one question: when may the court speak? The answer is any time until the jury's work is done. The verb is permissive, so the clause gives the court a power and leaves it to decide whether a given moment calls for its use. The outer boundary is the discharge. The verdict is read, the jurors are polled if a party asks, and the court thanks and excuses them.2
The power runs this long because little can be repaired afterward. Deliberations are secret, and the circumstances in which a verdict may be attacked are very limited. A jury's failure to understand or follow the instructions is rarely among them.3 Whatever the court wants jurors to understand about the law, it must therefore get across before it excuses them.
The main charge is the most familiar occasion. Rule 51 lets the judge deliver it before final arguments, after them, or at both points.4 Each of those moments falls before discharge, so the rule treats them alike.
Instructions given during trial usually answer a particular incident. A curative instruction asks the jury to forget something it has heard, and a limiting instruction confines evidence to its proper scope. Evidence Rule 105 makes the limiting instruction mandatory: when evidence is admissible against one party or for one purpose but not against another party or for another purpose, the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.5 In that setting the court's freedom to instruct hardens into a duty. Curative instructions work differently. On some points they cannot work and may even backfire by emphasizing the very point they ask the jury to forget, so the choice to give one is left, in the first instance, to the party whose case might be damaged.6
The occasion that most often tests the rule is a note from the jury during deliberations. Jurors sometimes ask the court to clarify its instructions. The court may do so, but it often chooses to re-read the same instructions, because a clarifying instruction that mischaracterizes the law would create an issue for appeal.7 The court generally informs all counsel of a jury request, hears arguments for and against granting it, and then exercises its discretion over what steps, if any, to take. It may deny a request that could mislead.8 A failure to notify the attorneys and give them a chance to be heard before ruling on the request may lead to reversal of the judgment.9
The court's freedom under Rule 51(b)(3) does not strip the parties of their protections, but the protections are timed to the main charge. Rule 51(b)(1) requires the court to inform the parties of its proposed instructions and its proposed action on the requests before instructing the jury and before final arguments.10 Rule 51(b)(2) requires the court to give the parties an opportunity to object on the record, out of the jury's hearing, before the instructions and arguments are delivered.11 A jury note sent after the arguments cannot be previewed before them, because the question did not yet exist. Rule 51(c)(2)(B) fills that gap. A party that was not informed of an instruction or action before the time for objection under Rule 51(b)(2) "objects promptly after learning that the instruction or request will be, or has been, given or refused."12 A lawyer who learns of a supplemental answer only when the jury returns therefore preserves the point by objecting at once on the record. A later section, on objecting without advance notice, develops this timing rule in full.
The clause also marks where the power stops. By its terms the court may instruct only until the jury is discharged, and the clause says nothing about instructing afterward.
An exam stem built on this rule usually contains a jury note or a mid-trial incident, and it asks three questions in a predictable order. Did the court have power to speak? It did, if the jury had not been discharged. Did counsel have to be told and heard? The practice is to tell and hear them, and a failure to do so may lead to reversal. When did counsel have to object? Promptly after learning of the instruction, if the party was not told in advance; before the instructions and arguments, if it was. A student who treats the court's freedom to instruct as freedom from notice has confused the power with the procedure that accompanies it.