Don't Ask for Jury Instructions You Don't Want

by: Ryan Scott • July 16, 2024 • no comments

This is a small bit of advice that won't matter most of the time, but every now and then it might.

There are jury instructions given in every case. If you don't specifically want them, don't ask for them.

For example, in a kidnapping case, why ask for the standard instructions? Oh sure, you may want to modify those instructions. You may want to add additional instructions. But why ask for the standard ones? The state will ask for them. If you don't object, the judge will give them.

Why does it matter? Because let's say by the time your case is briefed, the appellate courts have ruled that the standard instruction is wrong. You didn't preserve the argument, which happens. Maybe it was a genuinely unexpected change, which somebody else preserved but didn't tell anyone else about. The appellate attorney in your case nevertheless briefs the issue as plain error. There's no dispute it's error. There's no dispute it's harmful. So your client wins, right? Not if you invited error. And how would you have invited error? You specifically asked for the erroneous instruction.

Would the COA agree that it was invited error? I don't know. But you could avoid that by not asking for the state's instructions. And if nothing else, it's less work.