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Why You Need to Submit Jury Instructions in a Bench Trial

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by: Ryan • March 11, 2011 • no comments

Okay, you don't have to call them "jury instructions." But a number of lawyers still think an MJOA is a sufficient and viable way - in a bench trial - to raise what should be considered jury instructions. It's not. Let me give a perfect example.

Defendant threatens the victim with an unsheathed knife. The defendant is charged with unlawful use of a weapon (under a theory of "possession with intent to use") and menacing.

You're the defense attorney. You have in your possession a jury instruction on what constitutes "use." The jury instruction memorandum argues - and quite persuasively, apparently, given the high number of judges who have given the instruction - that "use" in this context equals "stab" and that it is not enough to threaten someone to be guilty of UUW.

You've decided - for whatever reason - to have a bench trial, and your client agrees. You don't worry about submitting the jury instruction. Instead, you simply re-work the memo so it is a motion for judgment of acquittal.

If you win, great. If you lose, you've screwed your client on appeal.

The reason is simple. It seems obvious to you that your client only threatened the victim and didn't make an effort to stab him. Fine, but the crime is "possession with intent to use." Even if the trial judge adopts your theory of what constitutes "use," in the light most favorable to the state, a reasonable trier-of-fact could conclude that your client did intend to to use it. After all he did threaten to use it. A reasonable trier-of-fact could take that threat at face value. In other words, you will have no chance of winning on appeal for the denial of the motion for judgment of acquittal. Doesn't matter that the COA judges might think your client is innocent. That's not the standard. I wouldn't be surprised if the appellate attorney decided it wasn't even worth briefing.

Instead, what you should have done is submitted the "jury instruction" with the memo and get the judge to rule on whether she is adopting it as a correct statement of the law. If she says she is not, you have a great issue for appeal. The only two issues are(1) if in fact it is a correct statement of the law and (2) if there are any facts to support it. Forget "light most favorable." Any facts to support the instruction? Correct statement of law? The judge can be reversed for not adopting the instruction in deciding your client's guilt, even though it's a bench trial.

To be sure, a judge could say they are adopting the instruction and then find your client guilty anyway. But that's the risk of having a bench trial in the first place.

Let me emphasize that when you submit the jury instruction and memorandum (one for the court file and one courtesy copy for the judge - never hand the judge your original), you still need to get a ruling. This is an essential part of proper error preservation. And this is true for sentencing memorandums or motions to suppress that contain multiple issues. If the judge doesn't explicitly rule on whether he or she is denying - for example - the 200% rule you've raised or the Miranda issue mentioned as part of a separate suppression issue - you stick the appellate attorney with arguing that the trial judge "implicitly" rejected your argument. Then the merits of the argument get sidetracked over preservation, and the appellate judges have a guilt-free justification for AWOP'ing the conviction.

As I have said before, you should never have a trial without submitting a special jury instruction. Let's assume trial judges make mistakes in every trial, yet very few convictions are ever reversed. It's the erroneous denial of a special instruction that gives you the best chance at reversal. While there are, theoretically, some trials for which no special jury instruction can be legitimately requested, in my experience, these trials are few and far between.

If you need ideas, a few special jury instructions can be found on the Ryan page.