Jury instructions help jurors decide if a defendant is innocent or guilty. That's why it's important for the prosecution and defense to request that certain instructions be submitted to the jury. Whether or not the requests are approved is the court's decision. If a request is improperly made, it most likely will be refused by the court.

How to Request Instructions

Both the prosecution and defense can propose jury instructions. A request for instructions must be made at the end of the evidence or at any time the court sets. Typically, a court will ask for general instructions to be submitted before trial. As the case progresses, the court may allow additional requests. However, if requests are late, the court can refuse to give the instruction. For example, a request is untimely if it's filed on the day the judge is going to charge the jury.

A request must be made in writing, and if it's not, then it can be denied. Along the same lines, if an instruction that's legally correct isn't requested, then the issue is waived. You can't challenge it later, including on appeal. Instructions that discuss what sentence a defendant might receive aren't allowed. 

Instructions Requested by a Defendant

Whether or not a defendant is entitled to a jury instruction on the theory of his defense depends upon whether:

  • Defendant proposes a correct statement of the law
  • Evidence supports the theory
  • Defendant's theory isn't otherwise part of the instructions
  • Failing to include the instruction would deny the defendant a fair trial

In other words, if a defendant claims self-defense but the evidence doesn't support that claim, the court can refuse to give the instruction. On the other hand, a voluntary intoxication instruction is required if there's some evidence that the defendant was too intoxicated to have the specific intent to commit the crime.

Generally, a defendant has the right to request a lesser included offense instruction if, from the evidence, the jury could reasonably find the defendant guilty of the lesser offense, but not guilty of the greater offense.

Approving Instructions 

A trial judge has broad discretion in drafting jury instructions as long as the charge accurately reflects the facts and law. After receiving the prosecution and defenses requests for instructions, the court will let the parties know before closing arguments how it intends to rule on the requests. 

An important part of approving a request is choosing the language of the instruction. Confusing or complicated terminology can be clarified or reworded. All or part of a requested instruction can be rejected if it:

  • Duplicates instructions already given
  • Is overly argumentative
  • Misstates the law
  • Isn't supported by the evidence

It's important that the court define the essential elements of the charged crime. At the same time, it's not necessary to define a nonessential element or a term that's commonly understood by the jury. 

Jury instructions aren't always perfect but they're the last thing a jury hears before beginning deliberations about a defendant's innocence or guilt.

Questions for Your Attorney

  • Can a defendant request that his instructions be read first?
  • If there's a juror and English is their second language, can an attorney request that the instructions be read in English and a foreign language?
  • Can a jury request an instruction that wasn't part of the original charge?