Concept
Jury Instructions
Right to a jury trial
Jury Instructions
The earlier sections of this chapter settled who sits on a criminal jury and how many jurors it must have; this one turns to how the law reaches those jurors. Jurors are laypeople, and nothing in ordinary experience tells them what the elements of a charged offense are, how much proof reasonable doubt demands, or which defenses the law recognizes. The judge supplies that knowledge through jury instructions, the statement of the governing law that the jury applies to the evidence it has heard. Because the jury will treat that statement as the law of the case, each side has a stake in its wording, and Federal Rule of Criminal Procedure 30 gives each side an orderly chance to shape the charge and to challenge it.1
The rule follows the order in which a trial produces its events. Any party may request in writing that the court give particular instructions, and the request is due at the close of the evidence or at any earlier time the court reasonably sets. The court must then tell the parties, before closing arguments, how it intends to rule on those requests, and it may deliver the charge before the arguments, after them, or at both points. A party who objects to any part of the charge, or to the refusal of a requested instruction, must state the specific objection and its grounds before the jury retires to deliberate.2 The next three subsections take those stages in that order: requests, then ruling and timing, then objections.
Each stage sits where it does because of a practical need. Requests come first because a judge cannot rule on proposals nobody has made, and the ruling must precede closing arguments because lawyers argue from the law the jury will hear. A lawyer who learned only after summation that a requested instruction would be refused would have built the argument on a legal premise the judge then rejected. The deadline for objections does subtler work. An error in the charge is cheapest to repair while the jury is still in the box, when the judge can correct a sentence in minutes, whereas the same error discovered after the verdict can cost a retrial. A rule that let a lawyer stay silent through the charge and raise the flaw only after an unfavorable verdict would give that lawyer two chances at the outcome, one with the jury and a second on appeal. Requiring a specific objection before deliberations removes that temptation at the source, which is why a party who stays silent generally forfeits the point on appeal, subject only to the narrow plain-error exception in Rule 52(b).3
On an exam stem, the usual mistake is to treat a complaint about the charge as timely whenever it is raised. An objection first made after the verdict, whether in a post-trial motion or on appeal, comes too late under the rule's own terms, because the deadline is before the jury retires to deliberate.4 The final subsection leaves Rule 30 and returns to the Sixth Amendment, asking whether a charge can ever take an element of the crime away from the jury, so that the procedural sequence here and the constitutional limit there together describe how the law is put to the jury and how errors in that process are preserved or lost.
Requesting Instructions
Federal Rule of Criminal Procedure 30(a) starts the process by which a party shapes the charge, and it places three demands on any party who wants a particular instruction given. The request must be in writing, it must be made at the close of the evidence or at any earlier time the court reasonably sets, and the requesting party must furnish a copy to every other party.5 The three demands operate independently. A request that is written and timely still falls short when the opposing side never receives a copy, and a request served on everyone still falls short when it exists only as something said aloud. This subsection takes up those mechanics, and the court's rulings on the requests and the objections that follow them come in the next two.
The writing requirement exists because an instruction is a text, and the value of a proposed instruction lies in its precise wording. A lawyer who tells the judge only that the jury should hear something about self-defense has left open what the jury will actually be told, and the judge has nothing specific to accept, revise, or refuse. The rule's own language ties the request to its content, since the party asks the court to instruct the jury on the law as specified in the request.6 A written request therefore puts the exact proposed statement of law on the bench, where the judge can measure it against the governing law and the other side can read it. The writing also leaves a record, so that if the court later declines to give the instruction, everyone can identify which words were requested.
The timing clause sets an outer limit and permits something earlier. The close of the evidence is the latest point at which a request may be made, and the court may fix an earlier time, for example before the evidence begins, so long as the time it sets is reasonable.7 The reason for allowing an earlier deadline is practical: a judge who must choose among competing proposals needs them in hand while there is still time to compare them, and a request that arrives at the last moment leaves little room for that work. The default of the close of the evidence has its own logic. By then each side has seen what proof was admitted, and so knows which defenses and theories the evidence actually supports, which lets the requests be tailored to the trial that took place. How the court answers the requests, and when it must announce its answers, is the subject of the next subsection.
The copy requirement protects the opposing party. When the request is made, the requesting party must furnish a copy to every other party, and the reason is notice.8 An opponent cannot object to a proposed instruction it has not seen, and it cannot offer an alternative wording that corrects a slant it never had the chance to notice. Without the copy requirement, a party would have a reason to place a favorable but contestable statement of the law before the judge while the other side was occupied elsewhere. Requiring a copy at the moment of the request opens every proposal to challenge from the start, which gives the judge competing views of the law instead of one.
Because the three requirements are checked separately, the request is best tested one requirement at a time.9 The steps are these:
On an exam stem, the usual trap is to treat an oral request as good enough because the judge heard it and the opposing lawyer was in the courtroom. Hearing a request is not receiving a copy, and speaking is not writing, so a stem that reports an oral request, or a written request that went only to the court, describes one that does not satisfy the rule.10 The opposite error is to call a request untimely simply because it came late in the trial. A written request made at the close of the evidence meets the timing clause unless the court had reasonably set an earlier time.
Ruling and Timing
The previous subsection covered how a party puts a proposed instruction before the court. This one covers what the court must do in response and when the jury hears the result, and two clauses of Rule 30 divide that ground. Rule 30(b) sets a deadline for telling the parties how the court will rule, while Rule 30(c) leaves the judge free to choose when the instructions are given.12 The first clause is mandatory and fixed in time, and the second is permissive.
Under Rule 30(b), the court must inform the parties before closing arguments how it intends to rule on the requested instructions.13 The clause sets the time of the announcement and leaves the substance to the judge, who may give or refuse what was requested but must say so before the lawyers address the jury. The reason lies in what a closing argument does. Closing is each lawyer's opportunity to connect the evidence to the legal standards the jury will apply, so a defense lawyer who requested a self-defense instruction will want to argue that the facts satisfy its terms, and a prosecutor will want to walk through the elements as the charge will define them. Both arguments depend on knowing what the jury will be told. A lawyer who argues a requested theory that the judge then refuses has urged the jury to apply a standard the court never supplies, which wastes limited argument time and hands the opponent an easy rebuttal. Advance notice removes that risk for both sides, because each can shape its argument to the instructions the jury will actually hear.
The two trials differ only in when the court announced a ruling that was the same in both, so the timing of the announcement is the fact that decided compliance.14 The late announcement did not change what the law was; it deprived counsel of the chance to argue from it.
Rule 30(c) answers a separate question, which is when the judge actually delivers the charge: the court may instruct the jury before or after the arguments are completed, or at both times.15 The word may marks the clause as a grant of discretion, and each choice has a functional appeal. A charge given before the arguments lets jurors hear each lawyer's account of the evidence with the governing law already in mind, so they can notice when an argument drifts from it. A charge given after the arguments puts the law in front of the jurors immediately before they retire, when it is freshest. Permitting both times lets the judge combine those advantages, for example by giving the charge ahead of the arguments and returning to it or supplementing it once the lawyers have finished. None of the three choices violates Rule 30(c).
Because the two clauses run on separate clocks, a court can do something Rule 30(c) allows, such as instructing only after the arguments, and still break Rule 30(b) by saving its rulings for the same moment. On an exam stem, the error to avoid is treating delivery of the charge and announcement of the rulings as one event with one deadline. A stem that reports instructions given after closings invites the conclusion that Rule 30 was violated, when the real question is when counsel learned how the court would rule.
Preserving Objections
The last stage of Rule 30 decides whether a complaint about the charge can ever be heard on appeal. Under Rule 30(d), a party who objects to any portion of the instructions, or to a failure to give a requested instruction, must inform the court of the specific objection and the grounds for it before the jury retires to deliberate.20 The court must also give the parties an opportunity to object out of the jury's hearing and, on request, out of the jury's presence.21 A party who fails to object in accordance with the rule is precluded from appellate review, except as Rule 52(b) permits.22 Those provisions divide this subsection into what a proper objection contains, the setting in which it is made, and what silence costs.
A proper objection has two components, and each does a different job. The specific objection identifies the part of the charge under attack, whether that is an instruction the court gave or a requested instruction it refused, and the grounds explain why the party says the court erred.23 The reason for demanding both lies in what the objection is for. Its purpose is to let the trial judge repair the charge while repair is still possible, and a judge can repair only what the lawyer has pinpointed. A lawyer who announces only that the defense objects to the instructions gives the judge nothing to correct, because the judge cannot tell which sentence is the problem or what a better version would say. The rule also lists a failure to give a requested instruction among the matters that call for a stated objection, so the written request under Rule 30(a) and the objection under Rule 30(d) are separate steps.24 The request puts a proposal before the court, and the objection tells the court, before deliberations begin, that its response to the proposal is challenged and why.
The rule also regulates where the objection is made. The court must give an opportunity to object out of the jury's hearing and, on request, out of the jury's presence.25 An objection to the charge is a criticism of the judge's statement of the law, and a lawyer forced to voice it in front of jurors would face an awkward choice between staying silent and appearing to dispute the judge before the people about to decide the case. Moving the exchange out of the jurors' earshot lets the lawyer state the objection plainly and lets the judge respond candidly. The duty to supply that occasion rests on the court, which keeps the objection requirement from catching a lawyer who has no practical moment in which to speak.
The consequence of silence is written into the rule itself. A failure to object in accordance with Rule 30(d) precludes appellate review, and the only exception the rule names is the one permitted under Rule 52(b), whose content lies outside this subsection.26 The preclusion removes a temptation that would otherwise be strong. A lawyer who noticed a flaw in the charge could keep quiet, wait for the verdict, and raise the flaw only if the jury convicted, which would give that lawyer two chances at the outcome. Because the point must be raised before deliberations to survive, nothing is gained by holding an error in reserve.
The two lawyers faced the same instruction and held the same view of it, so the only fact that separates a preserved error from a forfeited one is whether a specific objection with grounds was made before the jury retired.27 On an exam stem, the usual error is to treat a general objection to the charge as sufficient because the lawyer spoke before the jury left the courtroom. Timing satisfies only one requirement of the rule, and a stem that reports a bare statement of objection, with no identified instruction and no reason, describes an objection that fails the specificity requirement. The opposite error is to treat every missing objection as the end of the matter, since the rule itself points to Rule 52(b) as the one stated exception. A stem reporting silence is therefore answered under Rule 30(d) first, with Rule 52(b) named as the exception and nothing more.
Instructions and the Jury's Role
The Rule 30 steps in the preceding subsections govern how instructions are requested, announced, and challenged. A different question is what an instruction may say, and the answer comes from the Sixth Amendment rather than from the rule. The right to a jury trial includes the right to have the jury pass on the ultimate question of guilt, which means the jurors must consider each element of the crime and apply the law, as the judge's charge states it, to the facts on each of those elements.30 In Apprendi v. New Jersey the Court described the Sixth Amendment and due process as together entitling a criminal defendant to "a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt."31 The charge is therefore the place where the jury's role is either preserved or taken away.
The right reaches the charge because of what the jury was built to guard against. In Duncan v. Louisiana the Court explained that trial by a jury of one's peers protects the accused against a corrupt or overzealous prosecutor and against a compliant, biased, or eccentric judge, and that it reflects a reluctance to give one judge or a group of judges plenary power over a citizen's liberty.32 A conviction rests on a series of findings, one for each element, and the jury's agreement on most of them says nothing about an element that the judge settled in the charge. If the charge could resolve an element, the verdict on that element would rest on the very official the right is meant to check. The division of labor therefore runs in one direction: the judge states the law, and the jurors decide whether the facts meet it.
United States v. Gaudin shows the rule being broken. Materiality is an element of the offense of making a false statement, and the trial judge told the jurors that the statements at issue were material. That instruction took the element out of the jury's hands, and the Court held that it violated the Sixth Amendment.33 The other pole differs in a single respect: a court that instructs the jurors that they must decide whether the government has proved every element, materiality included, beyond a reasonable doubt leaves the finding with them, and the right is intact.34 The two judges may hold identical views about what the evidence shows. What separates them is whether the charge asks the jury to reach the conclusion or announces it. Defining an element is the judge's task, and announcing that the facts satisfy the definition belongs to the jury.
The same logic explains why a judge can never direct a verdict of guilty. In a criminal case the judge may grant a judgment of acquittal in whole or in part, but the judge cannot stop the jury from acquitting however strong the government's evidence, because a verdict for the government by direction would violate the accused's jury right.35 A judge's grant of acquittal ends the case in the accused's favor and the government has no right to appeal it, while a judgment against the accused made by the judge would put the judge's finding in place of the jury's.36 Federal jury trial has long been understood as one in which the judge instructs the jurors on the law and may set aside a verdict as against the law or the evidence, except an acquittal on a criminal charge, as Crowell v. Benson put it in quoting Capital Traction Co. v. Hof.37 A dissenting opinion in Parklane Hosiery Co. v. Shore made the same point about efficiency measures: government motions for summary judgment or a directed verdict in criminal cases would save court time but would not survive the Sixth Amendment.38
An instruction can remove an element without announcing that the element is satisfied. A mandatory presumption requires the factfinder, once the basic facts are shown, to find the presumed fact unless the defendant produces at least some contrary evidence, while a permissive presumption, also called an inference, allows the jury to draw the conclusion but never requires it.39 Against the accused, the mandatory form is generally impermissible because it relieves the prosecution of proving each element beyond a reasonable doubt, and the permissive form survives if the basic facts, in context, would let a jury find the inferred fact more likely than not.40 In Mullaney v. Wilbur the judge told the jurors to presume malice aforethought, an element of murder under Maine law, once an unlawful and intentional killing was shown, unless the defendant proved sudden provocation by a preponderance of the evidence, and the Court held that the presumption was unconstitutional.41
The label on an instruction carries little weight, because the Court looks to how the jurors would have understood it. In Sandstrom v. Montana the judge told the jury that the law presumes a person intends the ordinary consequences of his voluntary acts, and the Court found a significant risk that jurors read this as a direction to find intent, which was unconstitutional on either possible reading.42 Judicial notice follows the same pattern. In a civil case the jury is told to accept a noticed fact as conclusive, but in a criminal case courts generally hold that the noticed fact does not bind the jury, because making it conclusive would take the question from the jury and violate the defendant's right to a jury trial.
None of this frees jurors to rewrite the charge. Justice Story, instructing a jury in United States v. Battiste, called it the accused's most sacred constitutional right that the jury respond as to the facts and the court as to the law, and he denied that jurors have a moral right to decide the law by their own notions.43 The jury's practical ability to acquit against the evidence rests on the general verdict and on the bar against reviewing an acquittal, and it does not reduce each juror's obligation to follow the instructions; the California Supreme Court reasoned this way in People v. Williams when it upheld the discharge of a juror who would not apply the law as instructed.44 A federal district court in United States v. Polizzi gave the history a different emphasis, reading the Sixth Amendment to treat the jury's refusal to convict as part of its constitutional role.45 The accounts differ over how to characterize the jury's power to acquit against the law, but each leaves the judge without power to direct a verdict of guilt.
One qualification limits how far the element rule reaches. The jury must decide each element, yet a single element can sometimes be proved by alternative routes without the jurors agreeing on which route they took. In Schad v. Arizona the jury returned a general verdict of first-degree murder after the prosecution offered both premeditated murder and felony murder, so it was uncertain which theory the jurors accepted. A plurality treated the two as alternative ways of committing a single crime, and the due process challenge failed because history and widely shared practice supported the grouping and the two paths did not differ significantly in moral character.46 The result fits the reason behind the element rule, since in Schad the jury, and not the judge, resolved the element, and the only disagreement was over the route. The qualification stops where a statute describes separate elements. In Richardson v. United States the Court read the continuing-series requirement of the Continuing Criminal Enterprise statute as describing several elements, and it held that the jury must be unanimous about which specific series of violations the defendant committed.47 Whether a feature of a crime is an element or only a means is first a question of statutory construction, and then a question whether allowing disagreement would undermine the purpose of unanimity or depart from historical practice.48 The later section on verdicts returns to unanimity itself.
On an exam stem, the usual trap is to treat overwhelming evidence as permission for the judge to tell the jurors that an element is met. The rule asks who decided the element, and a charge that announces the answer takes the decision from the jury however easy the answer would have been.51 The opposite mistake is to read every statement of law in a charge as an intrusion on the jury. Defining materiality or listing the elements is the judge's task, and a charge that does so and then asks the jurors to decide whether the government proved each element leaves the right intact.