The Jury's Out. They Have a Question. You Don't Like the Judge's Answer. What Should You Do?

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by: Ryan • July 14, 2014 • no comments

I hope every criminal defense lawyer reading this knows that you must except to jury instructions you object to -- or the failure to give jury instructions you requested -- after the jury has been sworn. The rule has been relaxed slightly in recent years, but it's still something you should never forget. If you do forget, it creates an unnecessary risk to the appeal of that issue.

But what some attorneys may not realize is that, when a judge answers a question from the jury, after deliberations have begun, that's a jury instruction. It may not feel like it, but it is. So if you don't like the answer the judge gives, or you wish she'd given the one you crafted, you've got to except, something that can be a little tricky if the consultation between the judge and attorneys didn't occur on the record (e.g., it all happened by phone or e-mail).

And if your objecting to the failure to give the answer you wanted, you need to make sure you've submitted that answer in writing.

Just your jury trial tip of the day.