The jury needs to hear from the referee where the goalline is, not from the players
by: Ryan • October 1, 2014 • no comments
There were a couple of good COA cases today where convictions were overturned because of errors regarding jury instructions. In one of the them, State v. Vanderzanden, the COA -- after agreeing with the defendant that the standard instruction on necessity failed to accurately state the law -- addressed the harmlessness argument from the state.
- We reject the state's argument that defense counsel's arguments to the jury were an adequate substitute for a correct instruction given by the trial judge. State v. Pierce, 235 Or App 372, 377, 232 P3d 978 (2010) (noting that "counsel's arguments are no substitute for proper instructions"); State v Brown, 310 Or 347, 356, 800 P2d 259 (1990) ("[N]either the sufficiency of the evidence nor the completeness of counsel's arguments concerning that evidence is a substitute for the sufficiency of the instructions.").
Those of you who have heard my OCDLA presentations on special jury instructions have heard me talk about the same issue, albeit without explicit case law backing me up. I have stressed that it is not enough to make an argument, if you can also get the judge to endorse the relevant principle via a jury instruction. And this is simply because the judge has an essential credibility with the jury.
When it's 4th and inches, the players on either side may express an opinion whether the quarterback got the first down, but it's the referee we look to.
And when you think about it, the prosecution is almost always the team with the ball. Our job is to keep them out of the end zone. Jury instructions allow us to push the goal line a little deeper into the end zone (which perhaps is where the analogy falls apart but you get the idea). Make them travel that extra distance. I'm never going to knowingly pass up a chance to push back the goal line, because I've seen too many games that were decided because an inch, as they say, was as good as a mile.
