Special Jury Instructions for Kidnapping
by: Ryan Scott • January 12, 2024 • no comments
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.
