Special Jury Instructions for Kidnapping

Revision as of 15:32, January 13, 2024

In my opinion, one thing that sets a great defense lawyer apart from a good defense lawyer is the quality of their special jury instructions.

Special jury instructions have a number of advantages. If given, they can put the weight of judicial authority behind your argument. It's not just you saying what the state needs to prove, for example. It's what the judge is saying. If the instruction is not given, the standard of review on appeal is very defense-friendly. To obtain a reversal on an ungiven special jury instruction, you need the instruction to be a correct statement of the law and any evidence in the record that would justify it. This is the reverse of the standard of review for MJOA, where the evidence is viewed in the light most favorable to the state. (To be precise, it's also important that the instruction is not only a correct statement of the law but also is not unduly slanted toward the defendant.)

When are jury instructions most valuable? Usually when the statute is broadly written, but either the legislature or the case law has narrowed the scope of the statute. That happened with the crime of kidnapping, for example. Back in 2017, I spoke at a conference in Portland and recommended -- among many other things -- the following special jury instructions:

(1) You should consider and decide if the defendant committed [assault/robbery] before you consider the kidnapping charge.

(2) If you conclude the defendant is guilty of [assault/robbery], you should find the defendant not guilty of kidnapping if you find the movement of XXXXXX was merely incidental to the commission of the [robbery/assault].

(3) The movement was merely incidental to the [assault/robbery] if it did not go beyond what was necessary to accomplish the [assault/robbery].

(4) A person has only taken someone from one place to another if the ending place is qualitatively different from the [their] starting place.

For authority, I wrote as follows:

Although the requested instructions are submitted at one time and are best understood collectively, the court should understand that there is a separate request made for each of the number instructions above.

For special instructions #1-3, Defendant relies on State v. Worth, 274 Or App 1 (2015).

Special instruction #4 is based on the fact that a person commits the charged form of second-degree kidnapping only if the person “takes another person from one place to another.” ORS

163.225(1)(a). That requires the other person’s “ending place [to be] qualitatively different from the [their] starting place.” State v. Sierra, 349 Or 506, 513, 254 P3d 149 (2010).

At that conference, I proposed a large number of legal arguments and special jury instructions and the overwhelming majority are now law. But not the special jury instructions for kidnapping. Either they weren't preserved, they wouldn't have made a difference, or the defendants were acquitted.

Until this month, sort of. The Court of Appeals published a case that dealt with -- and rejected -- a special jury instruction for kidnapping. But it does not appear the trial attorney asked for instructions I proposed in 2017.

The case is State v. Anderson, 329 Or App 754 (2023). It was an en banc decision in which the majority rejected defendant's assignments of error, including the denial of his MJOA and the failure to give the requested instructions. The dissent would have ruled differently on the denial of the MJOA for kidnapping, but it did touch briefly on the issue of the jury instructions.

The case is essential reading for anyone with a kidnapping charge. And the odds seem pretty good for Supreme Court review, so it may not be the final word. But I want to focus on the requested jury instructions.

The defendant's requested jury instruction stated:

"For purposes of Kidnapping in the Second Degree, Oregon law provides that a person has the intent to interfere substantially with another person's liberty if the person acts with the intent to move the other person a substantial distance or to confine the other person for a substantial period of time."

The majority opinion stated:

Defendant's requested instruction correctly states the law with respect to the intent element of second-degree kidnapping. We understand the trial court's reference to the requested special instruction as "somewhat misleading" as a reference to the fact that the word "distance" does not appear in the second-degree kidnapping statute and that, although defendant must have intended to move J a substantial distance, his success in doing so is not required and his failure in doing so would not be dispositive. What is required is that defendant "intended to interfere substantially with [J]'s personal liberty, including her freedom of movement[.]" State v. Worth, 274 Or App 1, 11-12, 360 P3d 536 (2015), rev den, 359 Or 667 (2016) (internal citations, quotations marks, and brackets omitted). Given that the trial court's instructions correctly stated the law on both elements of second-degree kidnapping and given the very real potential for misleading the jury to think that a particular distance is required for either the physical act or mental state elements, the court did not err in declining to give defendant's special instruction.

The dissent wrote:

I agree with the majority that defendant's requested instruction correctly states the law on the intent element of second-degree kidnapping. See 329 Or App at 763. I disagree that the trial court did not have to give that instruction. See id. at 764. The jury was instructed that, to prove kidnapping, the state had to prove that defendant "had the intent to interfere substantially with [J's] personal liberty." Defendant requested a legally accurate instruction on the well-established meaning of "substantial" as used in that phrase. In response, the prosecutor argued that the requested instruction misstated the law—which it did not— and the trial court declined to give it, stating, "I don't believe that that is an accurate statement of the law, or at least I think it's somewhat misleading * * *." Then, during closing argument, the prosecutor argued that defense counsel had misstated the law in referring to "substantial distance" in closing, and he told the jury that "personal liberty" means a person's "freedom of movement," which in turn simply means the "ability to move or not move." Defendant again requested the additional instruction, and the court again said no. Finally, during jury deliberations, the jury asked for a "better definition of `personal liberty'"—having heard none except the prosecutor's—and the court again rebuffed defendant's request, instead telling the jury only that "the term `personal liberty' refers to [J's] right to freedom of movement."

The Supreme Court has acknowledged the inherent "ambiguity" in the phrase "intent to interfere substantially with another's personal liberty'" in the kidnapping statute—and how that ambiguity has been resolved through case law:

"The decision in Garcia[, 288 Or at 413] removes some of the ambiguity from the phrase `intent to interfere substantially with another's personal liberty.' It confirms that the liberty interest that the statute protects from interference is the interest in freedom of movement and concludes that, in order for the interference to be substantial, a defendant must intend either to move the victim a `substantial distance' or to confine the victim for a `substantial period of time.'"

Wolleat, 338 Or at 475 (emphasis added). In short, it is the "substantial" distance that the defendant intends to move the victim, or the "substantial" period of time that he intends to confine the victim, that makes the intended inference "substantial."

The legal meaning of "intent to interfere substantially with another's personal liberty'" was particularly important to the defense theory in this case; the prosecutor made misleading statements in closing argument regarding the intent requirement for kidnapping; and the jury was clearly unsure as to what the state needed to prove. The requested instruction accurately stated Oregon law and would have ensured that the jury understood its task. It was not confusing or misleading. Under the circumstances, the requested instruction should have been given. The court erred each time that it refused to do so, and that error likely affected the verdict. The instructional error is another reason that I would reverse defendant's kidnapping conviction (although a reversal on that basis would only entitle defendant to a new trial).

Despite its loss at the COA, I would ask for the special instruction requested in Anderson and in the alternative the special instruction I drafted in 2017. You won't win on the first unless and until the Supreme Court reverses, and you might not win on the second. But if they would make a difference in your case, your chance of reversal is pretty good, and there is no downside to making the request.