Standard Updated for Jury Instructions
Panel Cites Research On Criminal Trials

By Tom Perrotta

June 9, 2006


An appeals court in Brooklyn yesterday announced a new standard for instructing juries in criminal trials before summations, saying previous precedents should no longer be followed.

A unanimous panel of the Appellate Division, Second Department, said it would no longer be considered reversible error if a trial judge gave a criminal jury oral instructions on the elements of a crime prior to closing arguments.

In reaching its conclusion, the court cited extensive research on juries, including projects conducted by the state's Unified Court System, and the views of the American Bar Association.

"Current studies, particularly those conducted as part of the Jury Trial Project of the New York State Unified Court System, have demonstrated the benefits of substantive preliminary instructions," Justice Robert A. Spolzino wrote for the court in People v. Harper, 2002-05517. "As the committee found, 'substantive preliminary instructions can make it easier for jurors to understand the evidence as it is presented to them' (Final Report of the Committees of the Jury Trial Project, at 31)."

The decision will be published Wednesday.

In March 1986, the state Court of Appeals reversed a murder conviction in People v. Townsend, 67 NY2d 815, finding that a trial judge had improperly provided jurors with written instructions outlining the charges prior to the trial.

"An evaluation of the sufficiency of the evidence presented should be made only when the jurors retire to deliberate, after summation by counsel and charge by the court," the Court wrote at the time.

The precedent has been duly followed by the trial and appellate courts, though only the Second Department and the Appellate Term, Ninth and Tenth Judicial Districts, have extended the rule to oral instructions, rather than just written ones.

The Second Department did so in People v. Mollica, 267 AD2d 479 (1999), in which the court reversed a robbery conviction because the trial judge defined the elements of robbery before opening statements and again before closing arguments.

Yesterday, the Second Department chose the case of Allen Harper to put an end to that distinction. Mr. Harper was convicted of robbery. At his trial, Supreme Court Justice Edward M. Rappaport gave instructions to the jury that distinguished between three robbery counts. The Second Department concluded that the instructions were "well within the proper exercise of the Supreme Court's discretion."

"We hold, therefore, that the rule we enunciated in People v. Mollica . . . is no longer to be followed and that it is not an abuse of discretion per se for the trial court to give preliminary instructions outlining the elements of the crimes with which the defendant was charged," Justice Spolzino wrote.

The court cautioned, however, that such instructions ought to remain fair and balanced. It said substantive preliminary instructions were no substitute for complete final instructions.

Mark C. Zauderer, a partner at Flemming Zulack Williamson Zauderer and chairman of Chief Judge Judith S. Kaye's Commission on the Jury, said the ruling was important in two respects.

First, he said, the decision reflected the appellate court's openness to new learning and scientific study on the court system.

Second, he said, it recognized the importance of instructions to the jury system.

"The decision recognizes that to the extent juries are helped to understand the issues in a case, and to match up the evidence with the legal standards, they do that much better of a job," Mr. Zauderer said.

Justices Robert W. Schmidt, Fred T. Santucci and Daniel F. Luciano concurred on the ruling.

De Nice Powell of Appellate Advocates, who represented Mr. Harper, declined to comment.

Assistant District Attorneys Leonard Joblove, Adam S. Charnoff, Joyce Slevin, Thomas S. Burka and Thomas M. Ross appeared for the Brooklyn District Attorney's Office.

— Tom Perrotta can be reached at tperrotta@alm.com.