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Riding Crops, Safe Words and Jury Instructions

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by: Ryan • November 27, 2010 • no comments

With good reason, the book of standard criminal jury instructions is relied upon heavily by defense attorneys and prosecutors. Compiled by a committee of some of the smartest lawyers in Oregon, and approved - at least tentatively - by the Oregon Supreme Court, the instructions are essential to every criminal trial.

If only they could actually be trusted. . . .

In the last few years, the appellate courts have either cast doubt on - or outright rejected - the standard jury instructions on accomplice liability as well as mental states (including recklessness, intent and knowingly). (See most recently State v. Lopez-Minjarez.) These were instructions that had been around for decades and had been used in thousands of trials. And they made it easier for juries to convict defendants on less evidence than the law required.

The first mistake defense lawyers make with regard to jury instructions is to assume that if an instruction is "standard" and no one else has complained, then there must be nothing to complain about.

The second mistake is to assume that, even if accurate, the standard instructions are adequate. In almost every trial, the standard instructions leave gaps that defense attorneys should be filling in with their own instructions, aka special jury instructions. Special jury instructions not only help the attorney at trial, but they assume a much more favorable posture at the COA that, in turn, translates into a much better chance at reversal. In comparison, the standard of review for judgments of acquittal is extremely unfavorable to defendants at both trial and on appeal, where the evidence is viewed "in the light most favorable to the state." But jury instructions? Any evidence which would support the jury instruction, if the instruction correctly states the law, can be enough to require the instruction or, if the instruction is rejected, reverse the conviction.

For reasons I can only guess, most defense attorneys never ask for special jury instructions, when they should be looking for opportunities to request them in every trial, including trials without a jury (the subject of a future essay).

Take the following example. A man is charged with assault in the second degree, based on an injury (swelling, pain) caused by the repeated use of a riding crop on a woman's butt and thighs. In this hypothetical, both are naked (except for the black velvet masks both of them wear), and she is both blindfolded and tied to some apparatus. They've done this before, at least a dozen times, but this time, he ignores it when she repeats the safe word ("foliage") or he simply doesn't hear it (did I mention the masks?).

There are numerous possible defenses to this case. But the charge is quite serious, Measure 11 assault, because the riding crop is alleged to be a dangerous weapon. The injury is not serious (e.g., no serious disfigurement), so the difference between this charge and a misdemeanor assault is that the riding crop is not just a weapon, but one that is likely, in the manner it is used, to cause serious physical injury. A weapon alone doesn't make it a felony, with a mandatory sentence of 70 months in prison. It has to be a "dangerous" weapon.

The standard jury instructions hit the usual points. The jury must find the defendant committed the assault knowingly, that the riding crop was a dangerous weapon, and that there was some injury.

What the standard jury instructions don't say, at least not explicitly, is that the defendant must know that the riding crop is a dangerous weapon. That is, the defendant, who has used this riding crop on this woman a dozen times, as well as a half-dozen other women, each time without complaint, must know that it is "likely" to cause disfigurement, or some other requirement of serious physical injury, even though it has never done so before (nor did it do so in this case).

Defense counsel can, of course, argue this without an instruction. But why not seek the imprimatur of a judge's command that the jury must find, beyond a reasonable doubt, that the defendant knew that the riding crop, in the manner it was used, was a dangerous weapon? Jurors aren't lawyers, and so they don't have the experience or training to appreciate the connection between mens rea and actus rea. Better for the judge to make it clear, rather than the lawyer. The standard instructions are ambiguous on this issue and therefore not particularly helpful.

I'm not aware of any case law that explicitly says the mens rea of assault applies to whether the weapon is a "dangerous weapon." There is favorable case law that would strongly suggest it does (see State v. Barnes, 329 Or 327 (1999), not applying the "knowing" mental state to the seriousness of the injury, but implying that it would apply to either the action or the surrounding circumstances). Absent unimpeachable precedent, the trial court could rule against the defendant and deny the instruction. (Trial courts are particularly prone to getting special jury instructions wrong, in part because the appellate courts themselves have been inconsistent, reversing themselves quite often. The most recent example is State v. Rainoldi, where the COA - reversing precedent more than a decade old - found that the defendant must know he's a felon in order to be guilty of Felon in Possession of a Firearm.) In the dangerous weapon situation, the chances of getting a reversal on appeal are extremely strong. The defendant might never get an MJOA on the issue (there's certainly enough evidence "in the light most favorable to the state" to infer he did know it was a dangerous weapon), but as long as there is any merit to the argument at all, the denial of the instruction is reversible error.

I have picked a particularly sexy hypothetical, but in fact this issue comes up routinely. It happens whenever it's an unconventional weapon, something other than a knife or gun. (And it comes up often with female defendants who are arguably more likely than men to pick up something nearby in a domestic fight. We've all seen the staple of bad domestic comedies, the vase, thrown at the unfaithful spouse.) Whether the weapon is a boot, or a crutch, or a candlestick holder, if the state has not alleged serious physical injury, we can assume there wasn't actual serious physical injury. Rather, there is the requirement that "in the manner it was used, it was likely to have caused serious physical injury." In other words, the defendant is being convicted on a counter-factual, something that didn't actually happen.

This special jury instruction could result in an acquittal or reversal, even if the usual elements of the crime (dangerous weapon, injury) are met.

In future essays, I'll explore other special instructions that defense lawyers should be asking for, as well as objections to special instructions that have been requested by the state. Finally, I'll talk about those tricky situations when defense attorneys should object to the failure of the judge to give a special instruction but the attorney should not actually draft one herself.