Twelve people, with diverse backgrounds, are selected from the community to sit on a jury and decide whether a defendant is innocent or guilty. Jurors go into a trial with little or no understanding of the specifics of the charged crime, or what each side's roles and duties are. Particular jury instructions direct the jury on these issues.

Burden of Proof and Presumption of Innocence

Ask any adult in America what he or she knows about a criminal trial and most likely there will be one of two responses - burden of proof or innocent until proven guilty. There are particular jury instructions addressing those basic principles.

Burden of Proof

It's the prosecution's (also called the state) job to produce evidence that proves the defendant is guilty of the charged crime beyond a reasonable doubt. This burden of proof never shifts. Any jury instruction that shifts the burden is unconstitutional.

Along the same lines, a defendant has a constitutional right to have the jury instructed that guilt must be established beyond a reasonable doubt. Sometimes reasonable doubt is a difficult concept to understand. Typically, it's defined as the kind of doubt that would make a person hesitate to act. This instruction doesn't change the state's burden of proof.

Presumption of Innocence

Every defendant is presumed innocent until proven guilty. He has a right to be judged only on the evidence admitted at trial. An instruction on the presumption of innocence must inform the jury unless the prosecution proves guilt beyond a reasonable doubt, the defendant must be acquitted.

Instructions Requested by Defendant

Whether or not a defendant puts on a case by presenting evidence or calling witnesses, there are jury instructions the defense can request.

Failure to Testify

If the defendant didn't take the stand to testify, the jury may be instructed his silence creates no inference of guilt. This is important because some jurors may believe that defendant's failure to testify means he's guilty. A defendant isn't automatically entitled to this instruction. He must ask for it.

Lesser Included Offenses

Generally, a defendant can request a lesser-included offense instruction if, from the evidence, a rational jury could find him guilty of the lesser offense but not guilty of the greater offense. The instruction won't be given if the lesser offense requires an element not required for the greater offense. Likewise, if the evidence only supports conviction of the greater offense, the court will deny the request.

Theory of Defense

If a defendant offers a defense at trial, he bears the burden of proving it. An instruction on a defendant's theory of the defense is proper if:

  • The defense proposes a correct statement of the law
  • Evidence supports the theory
  • The defense's theory isn't otherwise part of the instructions
  • The instructions are needed for a fair trial

When a defendant offers an alibi defense and its belief by the jury would result in an acquittal, the judge must give an alibi instruction. The judge should also instruct the jury that disbelief of the alibi evidence can't be the basis for a conviction.  

If a defendant claims insanity as a defense, he must prove it. Basically, the defendant must present clear and convincing evidence of insanity at the time of the crime. An insanity instruction is justified if the evidence permits the jury to find to a high probability the defendant was insane. In other words, the defendant had a serious mental disease or defect at the time of the crime that prevented him from understanding his actions were wrong.

A defendant is entitled to an entrapment defense instruction if there's enough evidence for the jury to find entrapment. The court first decides if there's sufficient evidence. Whether or not the defendant was entrapped is a question for the jury to answer. The entrapment defense consists of a government inducement of the crime and showing the defendant wasn't predisposed to criminal acts.

Deadlocked or Hung Jury Instruction

After a long trial, nobody wants to hear that the jury can't reach a unanimous verdict. However, if it happens, the court can give an extra instruction called a dynamite charge. It encourages the jurors to rethink their position in order to reach a unanimous verdict. It's the court's way of telling the jurors to keep going.

Sometimes dynamite charges can come across as coercive. There are several factors examined in determining if a dynamite charge coerced a verdict, including:

  • Content of the instruction
  • Length of time spent deliberating after the instruction was given
  • Total time of deliberations
  • Any indication of coercion or pressure

One way in which the trial judge may lessen the coerciveness of the dynamite charge is to give the instruction with the rest of the jury instructions, prior to the start of deliberations.

Questions for Your Attorney

  • Are jury instructions only written? Are they ever in video or audio form? 
  • Can a dynamite charge be given more than once?
  • What if a juror changes his mind and votes for guilty just because he wants to be done but that's not what he believes?