CHAPTER 34

JURY INSTRUCTIONS

§ 34.01 In General

§ 34.02 Procedure - Requests To Charge and the Charge

Conference

§ 34.03 - Objections to the Instructions

§ 34.04 Commenting on the Evidence; The Right to a

Case-Specific Charge

§ 34.05 "Boilerplate" Charges

§ 34.06 - Boilerplate To Watch out for

§ 34.07 - The Generic Charges

§ 34.08 Elements of Offenses

§ 34.09 - Constructive Elements

§ 34.10 - Lesser-Included Offenses

§ 34.11 Requests for Reinstruction and "Readbacks"

§ 34.01

In General

Unlike many jurisdictions Vermont does not have an official published compilation of criminal jury instructions. It does have a semiofficial unpublished one, however: most district judges have a looseleaf binder of standard instructions they and their colleagues use, although it is probable that no two copies are exactly alike. Judges give the charges they personally prefer, and lawyers must refer to the local lore to know how Judge X charges on reasonable doubt, or how he structures lesser-included offense instructions, and so on.

§ 34.02

Procedure - Requests To Charge and the Charge Conference

The parties may file written requests for instructions at the close of the evidence or earlier if the court orders, serving the other side with copies.{1}

After both sides have rested (or sooner if scheduling makes it appropriate), the judge and counsel sit down at a charge conference, at which the judge must rule on any written requests. Because counsel should know the substance of the charge before closing arguments, Rule 30 limits the judge's power to defer ruling on requested charges: "The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed."{2}

The charge conference usually goes beyond this statutory function, however, serving as an opportunity for the judge to go through proposed instructions in abbreviated form (or, if they are written, to give counsel copies), and for counsel to register objections and additional oral requests.{3}

§ 34.03

- Objections to the Instructions

Appellate challenges to convictions are often based on errors in the instructions, but Rule 30 imposes a strict preservation requirement: "No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection."

The rule does not explicitly require counsel to make the objection beforehand, at the charge conference, but counsel should do so, to be on the safe side, if the issue comes up then.

If counsel has made the objection at the charge conference, the obligation of "stating distinctly" an objection and its grounds before the jury retires requires a postcharge objection, even if the judge specifically says that previous objections will be considered preserved.{4} It is not good enough for counsel simply to state reliance on earlier objections, and similar shorthand may also not preserve the claim of error. The Vermont Supreme Court requires counsel "to focus on a succinct recitation of specific itemized objections. . . ."{5}

The timing requirement is also strictly, not to say harshly, enforced. An objection made shortly after the jury begins deliberations has been dismissed as "untimely" even though the trial judge heard the objection and denied it on its merits.{6}

Only in cases of "plain error," which are increasingly few and far between,{7} will the Vermont Supreme Court reverse convictions on the basis of instructions which have not been objected to, or not objected to on the proper grounds or at the proper time.

§ 34.04

Commenting on the Evidence; The Right to a Case-Specific Charge

A judge cannot direct the jury to find any fact that has not been formally stipulated to.{8} Nor is the judge permitted to comment on the evidence "in a way which gives undue prominence to any fact, claim or circumstance[,]" because "a judge's lightest word or intimation is received by the jury with great deference, and may prove controlling."{9}

On the other hand, the judge may not avoid the facts completely and charge entirely in terms of abstract propositions. In State v. Drown{10} the defendant in a DUI case put on evidence that she had consumed two drinks shortly before being stopped, and a chemist testified that these two may not have been fully absorbed in her bloodstream until later. If so, her blood alcohol content at the time of driving would have been below the presumptive "legal limit." The judge refused to give an instruction concerning this theory, charging generally that the jury had to decide whether the defendant was over the limit at the time of operation. The Vermont Supreme Court reversed, holding that the defendant was entitled to a fact-specific charge: a supported theory of the case should be presented "squarely" to the jury, and the judge must "`charge fully and correctly upon each point indicated by the evidence'. . . . While the court is not bound to make every conceivable comment upon the evidence and the weight of it, it nevertheless is bound to charge upon the substantial issues in a case."{11}

§ 34.05

"Boilerplate" Charges

Even so, the greater part of most jury instructions consists of abstract "boilerplate": routine propositions of law that apply in every, or almost every case, such as the state's duty to prove guilt beyond a reasonable doubt; the jury's duty to weigh the credibility of witnesses and to follow instructions; the fact that the information which charges the defendant with a crime has no evidentiary weight whatsoever, and so on.

§ 34.06

Boilerplate To Watch out for

Routine instructions can also be wrong. For years Vermont trial judges instructed juries that "the State occupies a different position to a witness it calls than does a private party"; that the state served no "partisan" ends; and that it had a duty "to produce and use all witnesses within reach of subpoena of whatever character, [whose] testimony will shed light upon the case. . . ."{12} In 1982 the Vermont Supreme Court decided that a jury could well interpret this language "to mean that only the witnesses called by the prosecution `shed light on the case,' and that the state's attorney would not be prosecuting the defendant unless he was guilty[,]" and held that the charge should no longer be given.{13}

Another archaic and potentially prejudicial boilerplate instruction is a charge that the jury has a duty (or that it is ordinarily reasonable) "to reconcile conflicting testimonies" on the theory that "all witnesses are presumed to have testified truthfully."{14} The charge has been repeatedly criticized, both by the United States Supreme Court and the Vermont Supreme Court, but not banned outright,{15} and some judges still give it.

Some judges instruct juries that their fact-finding role is to "seek out the truth[.]"{16} The charge can prejudice a defense argument that the prosecution evidence leaves the truth of what happened uncertain. "The jury's task is not simply to determine the truth or falsity of the charge" because "[t]he jury must acquit even when it thinks the charge is probably true."{17} Similarly, a charge that the jury has a "duty to decide" the case can undercut the reasonable doubt standard and whatever "right" a defendant may have to a hung jury.{18}

§ 34.07

The Generic Charges

Most of the generic charges in general use are either mildly helpful or genuinely innocuous, although counsel should always consider their potential impact in the particular context of the case. Charges generally cover such matters as the duty to follow instructions,{19} the duty to find facts solely on the evidence,{20} the presumption of innocence,{21} and proof beyond a reasonable doubt (concerning which practices vary widely and the Vermont Supreme Court has provided only negative guidance).{22}

Charges also tell the jurors that it is their exclusive function to determine the credibility of witnesses.{23} When appropriate the court should also give special credibility charges for particular types of witnesses.

Police officers: Witnesses should not be more or less readily believed simply because they are police officers.{24}

Children: The jury should consider whether child witnesses are able to distinguish truth from falsehood, and whether they have an accurate memory of events.{25}

Eyewitnesses: It is "better practice" to give some instruction on the risk of mistaken identity, but not reversible error to refuse to do so.{26}

Accomplices: The jury should be cautioned that accomplice testimony should be carefully scrutinized; when an accomplice has been granted immunity, the judge should also explain the dangers of immunized testimony.{27} When there is evidence that the accomplice has been induced to testify by "hope of favor," the jury should be told to accept the testimony "only with the greatest caution."{28}

Defendant's testimony: The instructions should not single out the defendant's testimony as suspect because of his or her interest in the outcome.{29} The judge should charge only that "a defendant who wishes to testify is a competent witness and that his testimony is to be judged in the same way as that of any other witness. . . ."{30}

§ 34.08

Elements of Offenses

It is always the judge's duty to instruct on the elements of the offense.{31}

Judges usually charge in the words of the statute, sometimes elaborating with case law definitions. Unless there has been a formal concession a judge may never instruct that any of the elements has been conceded.{32} Giving short shrift to an actively contested element of the offense can have the same effect,{33} and a sufficient focus on contested elements is part of the right to case-specific instructions.{34}

§ 34.09

- Constructive Elements

The statutory language does not always spell out all the essential elements.{35} Most of the older and vaguer statutes have been redefined by court construction. 13 V.S.A. § 2601, for example, provides bluntly, "A person guilty of open and gross lewdness and lascivious behavior shall be imprisoned not more than five years or fined not more than $300.00." Although the court has not gone far to elucidate the meaning of "lewdness and lascivious behavior," it has said that the crime includes an element of lascivious intent,{36} that it does not apply to consenting parties in private,{37} but that a sexual act with one unconsenting party is "open and gross" even if otherwise private.{38} Lewd and lascivious conduct with a minor{39} includes an implicit element of "sexual exploitation" at least when the defendant is himself or herself under the age of sixteen.{40}

Many penal statutes, including even the more recent, omit or only vaguely indicate a mens rea element. The Vermont Supreme Court generally reads in an intent element for crimes having their origin at common law, and for those carrying serious penalties, like kidnapping,{41} larceny,{42} robbery,{43} operating an automobile without the owner's consent,{44} "misdemeanor-manslaughter,"{45} and maybe sexual assault.{46} The motor vehicle felony of careless and negligent operation with a fatality resulting requires a showing of criminal negligence.{47}

There are a few exceptions: carrying a concealed weapon during the commission of a felony is held to be a strict liability offense.{48} Leaving the scene of an accident has an implied element of knowledge,{49} but the similar crime of attempting to elude a law enforcement officer has no mental element.{50} The crime of sexual assault on a minor does not require proof that the defendant knew the victim's age.{51}

Entirely unwritten "common law" crimes still exist in theory but have no practical importance. By early legislation the state adopted "[s]o much of the common law of England as is applicable to the local situation and circumstances and is not repugnant to the constitution and laws. . . ."{52} The statute is held to import the decisional and statutory law of England as it existed at the time of enactment. Common law conspiracy was a crime before the enactment of a conspiracy statute;{53} and some statutes simply provide the punishment for an offense, leaving the elements of liability entirely to case law.{54}

§ 34.10

Lesser-Included Offenses

A defendant can be convicted of "an offense necessarily included in the offense charged,"{55} as judged by the Blockburger test.{56} The defense is entitled to a lesser-offense instruction whenever a reasonable view of the evidence could support acquittal of the greater offense and conviction of the lesser. In an aggravated assault prosecution where the defense presented substantial evidence of diminished capacity (which would reduce the crime to simple assault), the trial judge was bound to charge on the lesser offense.{57} By contrast, in a first-degree murder prosecution where the defendant raised an "all-or-nothing" defense (that another person committed the crime), the failure to charge on the lesser offenses of second-degree murder and manslaughter was not error.{58}

Transition Instructions

When a judge charges on lesser-included offenses she should also give "transition" instructions, telling the jury in what order they should consider the various offenses - top down (from most to least serious) or bottom up - and when to proceed from one to the next. Top down instructions (e.g., in a murder case, first-degree murder, second-degree murder, voluntary manslaughter, involuntary manslaughter) are the accepted and approved practice,{59} but they are not strictly required. If the jury is told to deliberate from most to least serious, the judge has two further options: she can instruct it to consider the lesser offense only after it reaches a verdict of acquittal on the greater, or to proceed to the lesser offense "if after all reasonable efforts it is unable to reach a verdict on the greater. . . ."{60} The choice is defense counsel's but if counsel expresses no preference the judge can properly charge either way.{61}

The judge need not charge the jury to acquit the defendant of the greater offense if it has a reasonable doubt about which offense the defendant is guilty of, as long as the judge "specifically instructs the jury as to each offense charged that it must not convict unless it is convinced of the defendant's guilt beyond a reasonable doubt. . . ."{62}

§ 34.11

Requests for Reinstruction and "Readbacks"

Juries sometimes ask the judge to repeat portions of the instructions (or to expand on the instructions given), or for "readbacks" of testimony. Whether (and how fully) to respond to requests for reinstruction is generally discretionary with the trial judge,{63} but supplementary instructions can be dangerously influential inasmuch as "a judge's last word is apt to be the decisive word."{64} The judge had a due process obligation to advise counsel of any juror requests and the judge's intended response.{65}

"Readbacks" of testimony can have the same dangers,{66} and although the judge has broad discretion, the Vermont Supreme Court holds that it is error to permit a rereading of closing arguments, "[e]xcept for the purpose of ferreting out some admission or concession made therein by counsel. . . ."{67}

1. V.R.Cr.P. 30.

2. V.R.Cr.P. 30.

3. The federal practice of allowing oral requests "if they are sufficient to inform the court of the point[,]" is noted in the Reporter's Notes to V.R.Cr.P. 30. Citing the federal practice, the Vermont Supreme Court has held that an oral request (coupled with an oral objection after the instructions are given), is sufficient to preserve a claim of error. State v. Stempel, No. 91-489 (Vt. Jan. 6, 1993) (mem.).

4. State v. Wheelock, No. 89-475, slip op. 3-4 (Vt. April 3, 1992). A dissenting opinion saw this requirement as "a trap for unwary counsel. . . ." Id. slip op. 5 (opinion of Allen, C.J.).

5. State v. Wheelock, No. 89-475, slip op. 4 (Vt. April 3, 1992). The dissenters thought it would be sufficient if counsel simply "note[d] for the record that earlier objections are renewed." Id. slip op. 6.

6. State v. Percy, No. 91-131, slip op. 9 (Vt. May 8, 1992).

7. See, e.g., State v. Roy, 151 Vt. 17, 23-25 (1989).

8. State v. Noyes, 147 Vt. 426 (1987) (in DUI case judge erroneously instructed jury that site of alleged offense was a public highway); State v. Camley, 140 Vt. 483, 489 (1981) (judge in murder prosecution limited permissible verdicts, omitting general verdict of not guilty).

9. State v. Camley, 140 Vt. 483, 489 (1981).

10. 148 Vt. 311 (1987).

11. State v. Drown, 148 Vt. 311, 312-13 (1987) (quoting State v. Brisson, 119 Vt. 48, 53 (1955) (internal quotes omitted)). Of course, theories which are not legally or factually supported need not be charged. State v. Joy, 149 Vt. 607, 610 (1988).

12. State v. Gates, 141 Vt. 562, 566 (1982). See also id. at 569-70 (collecting other cases with the same charge).

13. State v. Gates, 141 Vt. 502, 573 (1982).

14. See State v. Snide, 151 Vt. 343, 344 (1989).

15. Cupp v. Naughten, 414 U.S 141 (1973) (in context not a due process violation); State v. Percy, 156 Vt. 468, 472-73 (1991); State v. Snide, 151 Vt. 343, 345 (1989) (charge "pass[es] dangerously close to unconstitutional shifts in the State's burden of proof and the presumption of innocence, and threaten[s] to diminish the jury's role as the arbiter of credibility[,]" but was not reversible error).

16. State v. Benoit, No. 90-420, slip op. 4-5 (Vt. Feb. 7, 1992) (charge as a whole not error because judge repeatedly charged correctly on reasonable doubt standard).

17. State v. Giroux, 151 Vt. 361, 365 (1989).

18. See § 35.05, infra.

19. "It is your duty as jurors to follow the law as stated in these instructions and to apply the rules of law so given to the facts as you find them from the evidence in the case. Counsel have quite properly referred to some of the governing rules of law in their arguments. But if any difference appears to you, between the law as stated by counsel and that stated by the Court in these instructions, you of course are to be governed by these instructions. You are not to single out one instruction alone but must consider the instruction as a whole. Neither are you to be concerned about the wisdom of any rule of law stated by the Court." State v. Holcomb, No. 4186-9-86 Cncr (April 4, 1990) (Hon. Matthew I. Katz, J.) at 139.

20. "The evidence in the case consists of the sworn testimony of the witnesses, regardless of who may have called them. Statements and arguments of counsel are not evidence in the case. Anything you have seen or heard outside the courtroom is not evidence and must be entirely disregarded. . . . But in your consideration of that evidence you are not limited to the mere statements of the witnesses. In other words, you are not limited solely to what you see and hear the witnesses testifying. You are permitted to draw from the facts which you find have been proved such reasonable inferences as you feel are justified in the light of common experience." State v. Holcomb, No. 4186-9-86 Cncr (April 4, 1990) (Hon. Matthew I. Katz, J.) at 141.

21. "The law presumes a defendant to be innocent of crime. Thus, although accused, a defendant begins the trial with a clean slate, with no evidence against him; and the law permits nothing but legal evidence presented before the jury to be considered in support of any charge against the accused. So the presumption of innocence alone is sufficient to acquit a defendant unless the jurors are satisfied beyond a reasonable doubt of the defendant's guilt, after careful and impartial consideration of all the evidence in the case." State v. Holcomb, No. 4186-9-86 Cncr (April 4, 1990) (Hon. Matthew I. Katz, J.) at 141.

22. See § 32.03, supra.

23. "You are the sole judges of the credibility or believability of each witness. The testimony of a witness may be discredited or impeached by showing that the witness previously made statements which are inconsistent with present testimony in court, or that the witness is unduly biased or did not have a good opportunity to see, hear, or understand something about which the witness is now testifying in court." State v. Holcomb, No. 4186-9-86 Cncr (April 4, 1990) (Hon. Matthew I. Katz, J.) at 143.

24. Cf. State v. Percy, 156 Vt. 468, 480 (1990) (juror thought police officers were more prone to tell the truth than others; objection waived).

25. State v. Dunbar, 152 Vt. 399, 413-14 and n.7 (1989).

26. State v. Kasper, 137 Vt. 184, 211-12 (1979). Kasper cites, among other authorities, the eyewitness identification instruction in United States v. Telfaire, 469 F.2d 552, 558-59 (D.C. Cir. 1972).

27. State v. Williams, 154 Vt. 76, 80-81 (1990)

28. State v. Robar, No. 88-341 (Vt. Sept. 27, 1991) (unpublished) (citing Woodmansee v. Stoneman, 133 Vt. 449, 460-61 (1975)).

29. State v. Boise, 146 Vt. 46, 48-49 (1985).

30. State v. Boise, 146 Vt. 46, 49 (1985).

31. State v. Cantrell, 151 Vt. 130, 135 (1989); State v. Neal, 145 Vt. 423, 430 (1985).

32. State v. Noyes, 147 Vt. 426 (1987).

33. See State v. Perry, 151 Vt. 637, 641-42 (1989) (claim that judge failed to elaborate on element of operation in DUI case; defense failed to object at trial and instructions were not plain error).

34. See § 34.04, supra.

35. Vermont's substantive criminal law is collected in Title 13 of the Vermont Statutes, with significant exceptions: motor vehicle offenses (including DUI and careless and negligent operation) appear in Title 23, narcotics offenses in Title 18, and welfare fraud in Title 33. See App. 18.

36. State v. Purvis, 146 Vt. 441, 443 (1985); State v. Millard, 18 Vt. 574, 577 (1846). But see State v. Grenier, No. 90-313, slip op. 3-4 (Vt. Feb. 28, 1992) (confusing the issue).

37. State v. Franzoni, 100 Vt. 373, 375 (1926).

38. State v. Ovitt, 148 Vt. 398, 404-05 (1987) (public masturbation); State v. Millard, 18 Vt. 574 (1846).

39. 13 V.S.A. § 2602.

40. In re P.M., 156 Vt. 303, 308 (1991).

41. State v. Sargent, No. 90-037 (Vt. May 10, 1991); State v. Audette, 149 Vt. 218, 222-23 (1988).

42. State v. Hanson, 141 Vt. 228, 232 (1982).

43. State v. Francis, 151 Vt. 295, 304 (1989); State v. Dennis, 151 Vt. 223, 224 (1989).

44. State v. Day, 150 Vt. 119, 123 (1988).

45. State v. Stanislaw, 153 Vt. 517, 525 (1990).

46. State v. Hurley, 150 Vt. 165, 171 (1988). But see State v. Gabert, 152 Vt. 83, 87 (1989) (not deciding the question); State v. Giroux, 151 Vt. 361, 365 (1989).

47. State v. Beayon, No. 89-309 (Vt. Feb. 14, 1992). By contrast, the misdemeanor offense of careless and negligent operation is established by proof of simple negligence. State v. Dodge, 152 Vt. 503, 505 (1989); State v. Labonte, 120 Vt. 465, 468 (1958).

48. State v. Kerr, 143 Vt. 597, 604-05 (1983).

49. State v. Sidway, 139 Vt. 480, 485 (1981).

50. State v. Roy, 151 Vt. 17, 25-28 (1989).

51. State v. Searles, No. 91-038, slip op. 2-5 (Vt. Jan. 15, 1993).

52. 1 V.S.A. § 271.

53. State v. Coolidge, 106 Vt. 183 (1933); State v. Dyer, 67 Vt. 690 (1894).

54. State v. Bleau, 139 Vt. 305, 308 (1981); State v. Guppy, 129 Vt. 591, 595 (1971) (elements of receiving stolen property).

55. V.R.Cr.P. 31(c).

56. See § 14.05, supra (double jeopardy).

57. State v. Bolio, No. 91-206 (Vt. Sept. 18, 1992).

58. State v. Wright, 154 Vt. 512, 516-21 (1989).

59. State v. Duff, 150 Vt. 329, 335 (1988).

60. State v. Duff, 150 Vt. 329, 336 (1988).

61. State v. Powell, No. 89-627, slip op. 4-6 (Vt. April 3, 1992), partly overruling State v. Duff, 150 Vt. 329, 337 (1988).

62. State v. Powell, No. 89-627, slip op. 7-8 (Vt. April 3, 1992), overruling State v. Duff, 150 Vt. 329, 335 (1988).

63. State v. West, 151 Vt. 140, 142-143 (1989); State v. Patch, 145 Vt. 344, 354 (1985).

64. Bollenbach v. United States, 326 U.S. 607, 612 (1944).

65. Rushen v. Spain, 464 U.S. 114, 119 (1983).

66. See State v. Manning, 75 Vt. 185, 189 (1903) (not error to permit rereading of direct examination of witnesses without including cross-examination).

67. State v. Fitzgerald, 141 Vt. 369, 372 (1982).