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Thinking about instructions

Rick Kittel won in the zone of victory recently in State v. Salts, No. 99,533 (Kan. Feb. 6, 2009), with the KSC holding that "Inclusion of the language '[a]nother trial would be a burden on both sides' in PIK Crim. 3d 68.12 is error." In light of the record and the failure to object to the instruction, the KSC held that the improper instruction was not clear error. But in a case where there was an objection or in a case where the jury ended up sending out questions or where there is other evidence of juror disagreement, maybe it would matter.

The lesson might be to look at the pattern instructions carefully--are they really accurate statements of the law?

For example, take PIK Crim. 3d 51.10 Penalty Not To Be Considered By The Jury
Your only concern in this case is determining if the defendant is guilty or not guilty. The disposition of the case thereafter is a matter for
determination by the Court.
Is this an accurate statement? First, a jury doesn't "determine" that a defendant is not guilty. A defendant is presumed not guilty. The only question for the jury is whether the state has met its burden of proof. Implying that the jury has to determine that a defendant is not guilty could be construed to actually shift or dilute the burden of proof. So object. Request that the instruction read "Your only concern in this case is determining whether the state has met its burden to prove each and every element of each charged crime beyond a reasonable doubt." That's a correct statement of law, right?

And second, is it true that a jury is restricted to determination of the facts? Although jury nullification is not a viable defense, that does not mean that a jury is not empowered to nullify. See, e.g., Noel Fidel, "Preeminently a Political Institution: The Right of Arizona Juries to Nullify the Law of Contributory Negligence," 23 Ariz. St. L. J. 1 (1991). You may be familiar with the Fully Informed Jury movement. But even if juries are not fully informed of their right to nullify, it may be a misstatement of law to affirmatively direct that they are not so empowered. So maybe object to the instruction on that ground as well.

This is just an example of how we should look carefully at these pattern instructions. The pattern instructions are promulgated by a committee that tries to conform to the law, but as we know (1) anybody can get it wrong, (2) especially when you have a moving target. If you can argue that a pattern instruction is not accurate as a matter of law, object on that ground. Even if not successful, if you are right, with a better standard of review, it might matter on appeal. (At least if will give your appellate defender another argument!)

Full post as published by Kansas Defenders on March 03, 2009 (boomark / email).