Tagged: jury instructions

Case Divides Court on Criminal Defendant’s Right to be Present at All Stages of Trial

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

On June 10, the New York Court of Appeals issued a divided opinion in People v. Rivera regarding a criminal defendant’s right to be present during any supplemental instructions the trial court may give to even a single member of the jury. Defendant Rivera was charged with murder and illegal possession of a weapon. While the jury was deliberating, the trial judge informed the attorneys that juror number 11 requested to speak with the court, and the attorneys consented to the judge’s meeting with the juror, with no one else present.

The judge then had a colloquy in the robing room with the juror, who it turned out, wanted further guidance on “imminent danger,” relating to the defendant’s argument that he killed in self-defense. After the colloquy, the judge informed the attorneys and defendant about the meeting and told them that a transcript of the colloquy was available for review. Neither counsel requested a reading of the transcript.

The jury acquitted on the murder charge but found the defendant guilty of the weapons charge. On appeal, the Second Department reversed the conviction on the weapons charge because the defendant was not present during the court’s colloquy with juror number 11.

A majority of the Court of Appeals affirmed the Second Department’s decision and agreed that holding this colloquy in the absence of the defendant was – similar to the recent People v. Walston decision– a violation of CPL § 310.30 and a “mode of proceedings error” that did not require an objection in order to be raised on appeal.

Rivera was a 4-3 decision. Judge Abdus-Salaam wrote an extensive and vigorous dissenting opinion, in which Judges Read and Smith joined. The dissenters opined that, given the facts of the case and the purpose of the presence rule,

the trial court committed a de minimis violation of defendant’s right to be present rather than a mode of proceedings error.

The dissenters cautioned that

[u]nder the majority’s holding, a conscientious defense counsel has every reason to encourage a trial court to conduct insignificant proceedings in the defendant’s absence, knowing that the court’s actions will not meaningfully affect the jury’s consideration of the case and will provide a guaranteed reversal of a conviction on appeal.

The Rivera majority took a strong stand on the “absolute right” of a criminal defendant to be present during all instructions a court provides to the jury. On the other hand, the Rivera dissenters raise the concern that strict application of the “mode of proceedings” doctrine may lead to situations in which defense counsel’s advocacy for the client requires counsel not to object to errors where an objection would otherwise be required.

Rivera and Walston indicate that the Court of Appeals is divided on the scope of CPL § 310.30 and the “mode of proceedings” doctrine. It seems likely that the Court will confront these issues again.


N.Y. Court of Appeals Issues Ruling on Disclosure of Jury Notes in Criminal Cases

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

On June 12, 2014, the New York Court of Appeals issued a memorandum decision on the responsibilities of a trial court when a jury sends a note asking for clarification of the court’s instructions on the elements of the crimes presented for the jury’s deliberations.

The appeal arose from a case in which the prosecution charged the defendant with second-degree murder, pursuant to N.Y. Penal Law § 125.25(1), which requires proof of intent to kill.  At the close of proof in the case, the trial court, in addition to instructing the jury on the elements of this charge, granted the defense counsel’s request to instruct the jury on the lesser included offense of first degree manslaughter, in the event that the jury, pursuant to Penal Law § 125.20(1), found that the defendant’s intent was not to kill the victim but only to cause serious physical injury that unintentionally resulted in the victim’s death.

During its deliberations, the jury sent the judge the following note: “Power Point – Judges directions on Manslaughter/Murder in the Second Degree -(Intent).” The judge did not present the jury’s note to the parties (apparently receiving no request to do so), but simply informed them that the jury was requesting “the Judge’s directions on manslaughter and murder in the second degree.” Of particular importance in this case is that the judge did not inform counsel of the note’s reference to intent. When the judge called the jury to the courtroom to hear his response to the note, the judge said that he understood them to be asking merely for a read-back of the instructions on the elements of charges at issue, and the judge repeated these instructions.

The jury acquitted defendant on the murder charge but found him guilty on the manslaughter charge. In rendering this verdict, the jury had to make a crucial decision about the defendant’s intent. Their verdict implied that they found that the defendant’s intent was not to kill but to cause serious physical injury.

The Defense appealed, arguing that the trial judge erred by not informing counsel of the jury note’s reference to intent. The Court of Appeals agreed. The Court noted that Criminal Procedure Law § 310.30 requires that when the trial court receives a request from the jury “for further instruction or information with respect to the law,” the court must give notice of the content of the request to the People and the defense. The Court stated that under its precedent in People v. O’Rama, 579 N.E.2d 189 (N.Y. 1991), this notice must be “meaningful,” so that the defense is able “to evaluate the inquiry and the proper responses in light of the defendant’s interests.” Id. at 192. The O’Rama court stated that

[a] court can neither serve the goal of maximizing counsel’s participation nor satisfy the CPL 310.30 requirement that meaningful notice be given when counsel is not afforded a verbatim account of a juror’s communication and is thereby deprived of an advance opportunity to suggest a response.

Id. at 193. Following this precedent, the Court held that the trial judge’s conduct with respect to the jury note, omitting specific reference to the intent issue, failed to satisfy this obligation. Moreover, because the Court deemed this a failure of the trial court’s “core responsibilities” relating to the court’s “mode of proceedings,” the Court held that under O’Rama an objection by defense counsel was not required to preserve the issue for appeal.

The Court vacated the defendant’s manslaughter conviction, with leave to the People to resubmit that charge to a grand jury.

Judge Robert Smith concurred in the result, while stating some misgivings that excusing the preservation requirement in such a case may provide defense counsel with a tactical opportunity to avoid seeking full disclosure to counsel of the contents of a juror note in hopes of a future reversal of the conviction. He suggested that a future case might raise and brief the issue of the scope and validity of the “mode of proceedings” doctrine and afford the Court with an opportunity to reconsider and revise of this doctrine.


First Department Reverses Murder Conviction on Erroneous Jury Instruction

In People v. Minor, the Appellate Division, First Department unanimously reversed a second degree murder conviction on the ground that the judge erred in her instruction on assisted suicide defense to murder.

In Minor, the defendant had been charged with murdering  Jeffrey Locker,  a motivational speaker who was deeply in debt  and who was found dead in his car from multiple stab wounds.  The defendant claimed Locker had enlisted his aid to make his suicide look like a murder so his family could recover his recently purchased $12 million of life insurance.  The defendant allegedly held a knife on the steering wheel as Locker leaned forward into it.  When the defendant left the car, Locker was still alive.  Based on expert testimony that the wounds were inconsistent with the defendant’s story, the prosecution claimed that the defendant had murdered the victim.

In her instructions, the trial judge attempted to explain the affirmative defense of assisted suicide by stating that while murder was an “active,” assisted suicide was not.  When the jury asked for additional clarification the judge, over objection, responded with further instructions that failed to clarify the distinction.  The First Department reversed the conviction.  It held that neither the term “active” nor its opposite, “passive” are present in the statute and that the instructions were confusing and misleading.

Read People v. Minor, No. 10291, 2013 N.Y. Slip Op. 6444 (App. Div. 1st Dep’t 2013).

Is the Judge’s Instruction to Disregard a Statement Counterproductive?

Prof. Bennett L. Gershman of Pace Law School continues to cover the Zimmerman trial. This time he focuses on the judge’s instruction to the jury to disregard a witness’ testimony that Zimmerman had testified truthfully. As often occurs during trials, statements that should have not been made are made, and the jury hears them. The judge then follows with a simple instruction that tells the jury to “disregard the statement.”

However, Prof. Gershman asks, “Are juries capable or willing to follow such instructions?” In fact, as he points out, it isn’t just that something improper was said but also that it was followed by the explicit instruction to disregard that something.  This instruction makes it even more difficult for the jury to, as Prof. Gershman puts it, “un-ring the bell.”

What do you think? Will the jury in Zimmerman trial be able to disregard the witness’ statement about Mr. Zimmerman testifying truthfully? But more generally, does a judge’s instruction to disregard evidence make it  harder for the jury to disregard it?