By John DiMotto
After all the evidence has been presented in the the Evidentiary Phase (fourth phase), in the next phase of the trial, the Closing Instruction Phase (fifth phase), the judge addresses the issue of what jury instructions should be given in light of the facts adduced in the fourth phase.
When the trial begins, while the judge has a pretty good idea as to what instructions will govern the deliberations, the judge cannot be certain given the vagaries of trial. Only after all the evidence is in can the judge make a decision as to all the principles of law that the jury should consider during deliberations.
Before a final decision is made, an Instructions Conference is held with the lawyers. At this conference, the pretrial jury instructions requests of the lawyers are considered. Each judge handles the Instructions Conference differently.
In Wisconsin, there are several Jury Instructions Committees who are empowered to draft model instructions for use in most cases. These standard instructions are the starting point in jury instruction consideration.
The way I approach a jury instructions conference is as follows:
1) I do it on the record so an appellate court will have the benefit of my thought process based on a full exploration of the law in light of the facts.
2) I set forth what I believe are the appropriate instructions and the order in which they should be read. This is based on the lawyers' pretrial requests and my view of the evidence.
3) I go over how I believe the appropriate special verdict form should read
4) I ask the lawyers if they have any objections to my proposed instructions, and if so, the basis for their objection.
5) I ask the lawyers if they have any objections to my proposed special verdict form, and if so, the basis for their objection.
6) I ask the lawyers if they want any of my proposed instructions modified, and if so, the basis for their request.
7) I ask the lawyers if they want any additional instructions, and if so, the basis for their request.
8) I then set forth in detail on the record my decisions. I relate the decisions to the law that applies in light of the evidence.
9) I then discuss the issue of how we will handle issues regarding exhibits. It is my practice to not send exhibits to the jury on my own, however, if the jury requests to see certain exhibits to provide them so long as it will not create a situation of unfair prejudice.
10) I then address the amount of time the lawyers believe they need to effectively argue the case to the jury and then set reasonable time limits.
11) Finally, I bring the jury back into the courtroom and proceed to read the instructions to the jury.
12) If it is a case where the special verdict is very lengthy, I usually provide a copy to each juror so they can follow along when I am reading the verdict form before I start.
The judge must be very meticulous and careful in the instructions decisions he/she makes. You do not want to spend weeks on a trial only to take the instructions too lightly, mis-instruct the jury and have to retry the case.
In my next post, I will discuss the sixth phase of the trial, the Closing Argument Phase.