Case Law Update: 2011-2014 Cumulative Edition

Holding: Self-defense instruction should have been given where Defendant did not create the situation giving rise to the shooting and did not violate any duty to retreat or avoid danger.
Steele v. Beard, 2011 WL 5588711 (W.D. Pa. 2011):

Holding: Pennsylvania’s standard jury instruction form on mitigating evidence and the verdict form violated Eighth Amendment in penalty phase of capital murder case in that the forms likely misled the jury to believe unanimity was required regarding mitigating evidence.
U.S. v. Bran, 2013 WL 2565518 (E.D. Va. 2013):

Holding: (1) Where Gov’t deported a witness who would likely have provided favorable testimony for Defendant and Gov’t was aware at time of deportation that witness had information about case, some sanction for the Gov’t’s conduct was appropriate; but (2) appropriate sanction was a “missing witness” jury instruction, not dismissal of case.
U.S. v. Wainwright, 2011 WL 2517013 (E.D. Va. 2011):

Holding: Defendant was entitled to new trial based on change in law about killing a witness to prevent communication with law enforcement and jury instruction at trial regarding elements of his offense was wrong based on change in law.
Khan v. State, 2012 WL 2203049 (Alaska 2012):

Holding: Failure to instruct jury on unanimity requirement violated due process.
Fincham v. State, 93 Crim. L. Rep. 281, 2013 WL 2126833 (Ark. 5/16/13):

Holding: Arkansas’ standard jury instruction on lesser-included offenses (which instructs jurors that they must consider the greater offense first and move on to a lesser offense only if the jury has a reasonable doubt of the greater offense) fails to accurately state the law when the offense is “extreme emotional disturbance manslaughter” because unlike most lesser-included offenses, this manslaughter adds an additional element to first and second degree murder, i.e., that Defendant acted under extreme emotional disturbance; the instruction tells jurors that they can find Defendant guilty of manslaughter only if they first find him guilty of murder; this puts jury in impossible scenario where they are told that they cannot consider manslaughter unless they have reasonable doubt as to murder, but they cannot find manslaughter unless the Defendant committed murder.
Smoak v. State, 2011 WL 6226110 (Ark. 2011):

Holding: Defendant charged with internet stalking of a child may be entitled to an entrapment instruction even if Defendant denied one or more elements of the crime.
People v. Beltran, 93 Crim. L. Rep. 359, 2013 WL 2372307 (Cal. 6/3/13):

Holding: The level of emotional provocation that will reduce murder to voluntary manslaughter is not what would cause an ordinary person “to kill,” but whether the ordinary person would be “induced to react from passion, not judgment.”
People v. Wilkins, 2013 WL 828456 (Cal. 2013):

Holding: Where Defendant was charged with felony murder when a stolen refrigerator fell off a truck and caused a fatal collision 62 miles from where it was stolen, Defendant was entitled to a jury instruction which described the outer limits of the “continuous transaction” theory of felony murder liability.
People v. Mills, 92 Crim. L. Rep. 117 (Cal. 10/18/12):

Holding: Jury instruction in guilt phase that Defendant is presumed sane violates state law where competency will be resolved in a separate competency phase.
People v. Brents, 2012 WL 308116 (Cal. 2012):

Holding: Despite correct jury instructions, the trial court’s erroneous answer to the jury’s question that the predicate felony for felony murder was assault rather than kidnapping was prejudicial error.
People v. Mil, 2012 WL 171471 (Cal. 2012):

Holding: In a felony murder case, omission of elements from special circumstances instruction that defendant must have been a major participant in the underlying felony and have acted with reckless indifference to human life, was not harmless beyond a reasonable doubt.


People v. Moore, 2011 WL 322379 (Cal. 2011):

Holding: Jury instruction that said jurors must give Defendant the benefit of the doubt if they “unanimously” agree they have reasonable doubt was confusing to jurors about their individual roles.
Clark v. State, 93 Crim. L. Rep. 214 (Del. 5/2/13):

Holding: Defendant charged with offense involving mens rea of recklessness is not prevented having jury instructed on defense of justification.
State v. Brooks, 90 Crim. L. Rep. 758 (Del. 2/23/12):

Holding: Trial judges must issue cautionary instructions whenever prosecutors present accomplice testimony, even if the defense does not request it.
Haygood v. State, 2013 WL 535412 (Fla. 2013):

Holding: Jury instruction on manslaughter by act, which imposed additional element that Defendant intentionally killed victim, was fundamental error in second-degree murder case where there was no evidence that Defendant intended to kill.
Hamm v. State, 94 Crim. L. Rep. 749 (Ga. 3/17/14):

Holding: Defendants are entitled to jury instruction that accomplice testimony must be corroborated and is not enough by itself to support a guilty verdict.
Cheddersingh v. State, 2012 WL 603175 (Ga. 2012):

Holding: Under plain-error analysis, the error in a preprinted verdict form requiring that any finding of not guilty be made beyond a reasonable doubt was obvious and not subject to reasonable dispute.
Price v. State, 2011 WL 2610524 (Ga. 2011):

Holding: Where Defendant testified that he saw “for sale” and “open house” signs that led him to believe he was authorized to go into house, he was entitled to jury instruction on mistake of fact in burglary prosecution.
State v. Flores, 94 Crim. L. Rep. 339, 2013 WL 6218934 (Haw. 11/29/13):

Holding: Failure to give a lesser-included offense instruction is not harmless if the Defendant is convicted of the charged offense or a greater included offense; “Holding such error harmless perpetuates the risk that the jury in any given case did not actually reach the result that best conforms with the facts, because the jury was only presented two options – guilty of the charged offense or not guilty – when in fact, the evidence may admit of an offense of lesser magnitude than the charged offense.”
People v. Bailey, 2013 WL 1150779 (Ill. 2013):

Holding: Trial court erred in failing to provide separate jury verdict forms for each of the three different theories of murder that were submitted to the jury.


Hampton v. State, 961 N.E.2d 480 (Ind. 2012):

Holding: DNA evidence in rape case was circumstantial evidence, equally consistent with the defendant’s proposition that he engaged in consensual sex with the alleged victim, thus requiring a “reasonable theory of innocence” instruction.
State v. Miller, 2014 WL 26831 (Iowa 2014):

Holding: The crime of “absence from custody” is a lesser included offense of the crime of escape from a correctional institution.
State v. Breeden, 2013 WL 2712181 (Kan. 2013):

Holding: In sex case, trial court was required to provide limiting instruction regarding prior bad act evidence that Defendant had punched and threatened to kill victim before the charged sex act, and Defendant did not waive appeal of this issue even though Defendant failed to object to the evidence at trial because the issue was not admissibility of the evidence.
State v. Berry, 2011 WL 2937244 (Kan. 2011):

Holding: Even though Defendant fled from a traffic stop in a high speed chase causing a fatal accident, this was some evidence that he acted recklessly and supported a lesser-included offense instruction on second degree reckless murder and involuntary manslaughter.
Johnson v. Com., Kingrey v. Com., and Rodriguez v. Com. (Ky. 4/25/13):

Holding: Court adopts various standards to ensure unanimous jury verdicts in sex cases which involve testimony about multiple sexual acts, including having prosecutors charge each crime in a separate count and instructing the jury accordingly.
Day v. Com., 2012 WL 593160 (Ky. 2012):

Holding: The trial court was not permitted instruct the jury on the penalty range for a lesser included offense during the guilt phase of a sodomy prosecution.
Jones v. Com., 2011 WL 4431151 (Ky. 2011):

Holding: Prosecution was not entitled to a jury instruction on defensive force on behalf of victim because the law on justification applies only to those subject to prosecution.
Turner v. Com., 2011 WL 3764366 (Ky. 2011):

Holding: Where child sex offense was charged as happening during two-year timespan, but new sex offense statute covered only the last part of that span, jury instruction allowing them to convict Defendant under new statute for acts occurring at any time during that span was erroneous.
Com. v. Adkins, 88 Crim. L. Rep. 572, 2011 WL 193397 (Ky. 1/20/11):

Holding: Drug possession statute implicitly recognizes “innocent possession” defense because some possessions are innocent (such as where teacher finds drugs in classroom and gives drugs to principal); “Whenever the evidence reasonably supports such a defense – where there is evidence that the possession was incidental and lasted no longer than necessary to permit suitable disposal – [a jury instruction] should [be given] to reflect this.” Here, Defendant claimed he found drugs in a sock and was trying to turn them over to police.
Stabb v. State, 2011 WL 5842794 (Md. 2011):

Holding: Jury instruction stating that the state of Maryland does not require any specific investigative technique or scientific test violated defendant’s right to a fair trial, in that it effectively directed the jury not to consider the absence of scientific or physical evidence.
State v. Allen, 2011 WL 5110242 (Md. 2011):

Holding: Where court instructed jury that defendant had already been convicted of second degree murder and robbery with a deadly weapon in a previous trial arising under the same incident, defendant was deprived of his right to a jury trial in his felony murder trial, as the judge had already instructed the jury that two elements of felony murder were established.
Atkins v. State, 89 Crim. L. Rep. 769, 2011 WL 3611360 (Md. 8/18/11):

Holding: Jury instruction that “there is no legal requirement that the State use any specific investigative technique or scientific test to prove its case” violated due process right to a fair trial.
Com. v. Walczak, 979 N.E.2d (Mass. 2012):

Holding: Where grand jury seeks to indict a juvenile for murder, court is required to give instruction on mitigating circumstances and defenses because an indictment for murder would result in juvenile being tried as an adult.
State v. Koppi, 89 Crim. L. Rep. 476 (Minn. 6/8/11):

Holding: Under Minnesota crime for refusal to take chemical test where Officer had probable cause to believe person was driving while intoxicated, jury instruction which states that “probable cause means officer can explain the reasons he believed it was more likely than not that defendant drove [impaired]”, was improper because it failed to require Officer to cite actual observations and circumstances; failed to require the jury to consider the totality of the circumstances from the viewpoint of a reasonable Officer; and erroneously defined probable cause as “more likely than not” rather than “an honest and strong suspicion.”
Harrell v. State, 2014 WL 172125 (Miss. 2014):

Holding: Capital jury instruction for capital murder based on underlying felony of robbery was erroneous where it failed to instruct jury on what constituted the crime of robbery.
Decker v. State, 2011 WL 2418968 (Miss. 2011):

Holding: Where jury instruction materially differed from indictment’s language, this prejudiced Defendant’s ability to defend.
Newell v. State, 2010 WL 4882026 (Miss. 2010):

Holding: Where Defendant was attacked while getting into his vehicle, he was entitled to an instruction under “castle doctrine” that he shot victim-assailant in reasonable fear of harm to himself, even though Defendant had exited the vehicle when he shot victim-assailant.
State v. E.M.R., 92 Crim. L. Rep. 469 (Mont. 1/8/13):

Holding: Jury instruction indicating that Juvenile would benefit from services if convicted injected irrelevant considerations into jury’s determination of guilt.
State v. Pangborn, 93 Crim. L. Rep. 585 (Neb. 7/26/13):

Holding: Demonstrative exhibits should not be sent to the jury during deliberations unless the court first weighs their potential prejudice against usefulness and gives a limiting instruction to avoid prejudice; here, jury sought to see an exhibit prepared by the prosecutor that was a chart that outlined various charges against Defendant, various dates and injuries; “use of limiting instructions that advise a jury of the limited purpose [of such] demonstrative exhibits should be employed.”
State v. Almasaudi, 2011 WL 3862397 (Neb. 2011):

Holding: Jury instruction that allowed conviction for receiving stolen property based on showing of objective, rather than subjective, knowledge or belief imposed broader liability than intended by the statute.

Clay v. Eighth Judicial Dist. Ct., 2013 WL 3480306 (Nev. 2013):

Holding: Because the term “physical injury” as used in abuse and neglect statute would not be understood by lay people without a definition, prosecutor was required to instruct on that element in grand jury proceeding.
Rose v. State, 2011 WL 2936010 (Nev. 2011):

Holding: Whether the felony of assault with a deadly weapon was actually assaultive was a jury question, and trial court should have submitted an instruction as to whether the assault merged with the homicide so as to preclude its use an underlying felony to support felony-murder.
State v. Letendre, 88 Crim. L. Rep. 516 (N.H. 1/13/11):

Holding: Where court allows child witness to have a “support person” with them to testify, court must give a cautionary instruction about the role of the support person, that the person’s role is to put the child at ease, and that the support person’s presence should not factor into the jury’s assessment of the child’s credibility.
State v. Dabas, 2013 WL 3880135 (N.J. 2013):

Holding: Where Prosecutor’s Office withheld and destroyed interview notes of Defendant’s statements, Defendant was entitled to an adverse inference instruction.

State v. Dowling, 2011 WL 1877716 (N.M. 2011):

Holding: Jury instruction which omitted word “extremely” from degree of recklessness that must be found to convict of depraved mind murder was erroneous.
People v. Echevarria, 2013 WL 1798583 (N.Y. 2013):

Holding: Jury instruction on “agency defense” was erroneous where it provided that the lack of a prior relationship between Defendant and undercover police officer would negate the agency defense.
People v. Handy, 93 Crim. L. Rep. 19 (N.Y. 3/28/13):

Holding: Defendant is entitled to an adverse inference instruction where jail taped over video of his alleged assault; to get an adverse inference instruction for “missing evidence,” Defendant need not show that evidence was destroyed in bad faith, but only that he made a request for such evidence and it was reasonably likely to be material.
People v. Colville, 2012 WL 5199390 (N.Y. 2012):

Holding: Where the trial court deferred to Defendant’s personal decision contrary to judgment of his defense counsel not to submit lesser-included offense instructions in a murder prosecution, this deprived Defendant of the 6^th Amendment benefit of effective assistance of counsel and warranted a new trial.
State v. McDonald, 2013 WL 6171154 (Ohio 2013):

Holding: Where the verdict directing form failed to follow a statute which required a verdict directing form to include either the degree of the offense of which Defendant was convicted or the aggravating factors that justified convicting of a felony offense, Defendant could only be convicted of the misdemeanor version of the offense, not the felony.
State v. Lopez-Minjarez, 89 Crim. L. Rep. 830, 2011 WL 3873792 (Or. 8/25/11):

Holding: Jury instruction which said that a person who aids in committing a crime is also responsible for any other crime that arises as a probable consequence of that initial crime was contrary to statute that imposes accomplice liability only for crimes that a defendant intended to commit.
State ex rel. Engweiler v. Felton, 2011 WL 3849545 (Or. 2011):

Holding: Under Oregon statute, Parole Board lacked authority to require juvenile defendants who were waived from juvenile court to undergo administrative intermediate review of their sentences as a prerequisite to parole.
State v. Vuley, 70 A.3d 940 (Vt. 2013):

Holding: Jury instruction which instructed on the “unlikelihood” of four accidental fires occurring at Defendant’s house over an 8-week period erroneously used prohibited “propensity based reasoning” in allowing jury to infer Defendant’s intent from this (though was not plain error).

State v. Myers, 2011 WL 1522346 (Vt. 2011):

Holding: Jury instruction that person may be presumed to have intended the consequences of his actions that might normally be expected unless there was some other reasonable explanation impermissibly shifted burden of proof to Defenant.
State v. Coristine, 93 Crim. L. Rep. 204, 300 P.3d 400 (Wash. 5/9/13):

Holding: Court violated Defendant’s 6^th Amendment right to control his defense by giving a jury instruction on an affirmative defense over a defense objection; court finds right to control one’s defense is derived right to self-representation in Faretta and right to plead guilty while maintaining innocence in Alford.
State v. Surbaugh, 92 Crim. L. Rep. 276 (W.Va. 11/20/12):

Holding: If evidence of Defendant’s good character has been properly admitted, jury should receive an instruction that such evidence can be considered to generate reasonable doubt.
People v. Thomas, 160 Cal. Reptr.3d 468 (Cal. App. 2013):

Holding: Where Defendant puts provocation in issue by some showing that is sufficient to raise reasonable doubt whether a murder was committed, the failure to instruct on provocation (sudden quarrel/heat of passion) via a lesser included offense denies due process because it relieves State of burden to prove malice beyond a reasonable doubt.
People v. Mason, 160 Cal. Rptr.3d 516 (Cal. App. 2013):

Holding: (1) Trial court erred in omitting a jury instruction for offense of failure to register as sex offender that the State prove that the prior spousal rape conviction involved force or violence, since this was an element of the crime here; (2) Because the evidence was insufficient to prove that the prior conviction involved force or violence, Defendant could not be retried for failure to register on the basis of the conduct at issue in the present case.
People v. Aranda, 2013 WL 4855952 (Cal. App. 2013):

Holding: Under Calif. Constitution, when a jury indicates that Defendant is not guilty of a greater offense, but is deadlocked only on the lesser offense, the court must give the jury the opportunity to return a verdict acquitting of the greater before a mistrial can be declared, and if court does not do so, the mistrial is deemed to be without legal necessity as to the greater, and double jeopardy precludes retrial on that offense (disagreeing with U.S. Supreme Court in Blueford v. Arkansas).
People v. Hernandez, 2013 WL 3213052 (Cal. App. 2013):

Holding: Trial court erred in failing, sua sponte, to give unanimity instruction in firearm possession case where the evidence showed two different possession of firearm incidents, there was no evidence that the same gun was used in both incidents, and reasonable jurors could have found Defendant guilty based on either incident.


People v. Valasquez, 2012 WL 6200277 (Cal. App. 2012):

Holding: Jury instruction which stated that jury should convict of assault if Defendant applied force with a firearm “to a person” improperly allowed five convictions for five different victims; the instructions should have clarified that Defendant had to use force with each person.
People v. Bradley, 145 Cal. Rptr. 3d 67 (Cal. App. 2012):

Holding: Court erred in failing to instruct jury that criminal misappropriation or misuse of public funds required actual knowledge or criminal negligence.
People v. Wells, 2012 WL 1025740 (Cal. App. 2012):

Holding: Evidence that defendant may have fallen asleep at the wheel due to an unrelated medical condition warranted a jury instruction on the unconsciousness defense to the offense of driving under the influence of marijuana and causing injury.
People v. Hunter, 2011 WL 6413947 (Cal. App. 2011), opinion modified on denial of reh-g, People v. Hunter, 2012 WL 112762 (Cal. App. 2012):

Holding: Instruction regarding a firearm sentencing enhancement stating that “victim’s inability to say conclusively that the gun was real and not a toy does not create a reasonable doubt as a matter of law that the gun was real” unconstitutionally lightened the prosecution’s burden of proof, though the error was harmless beyond a reasonable doubt.
People v. Wiidanen, 2011 WL 6020163 (Cal. App. 2011)

Holding: Instruction on voluntary intoxication improperly prohibited the jury from considering the theory that defendant’s false or misleading statements were made without the knowledge they were false or misleading because defendant was intoxicated while he made them.
People v. Santana, 2011 WL 5079512 (Cal. App. 2011), opinion modified on denial of reh’g, People v. Santana, 2011 WL 5439113 (Cal. App. 2011):

Holding: Jury instruction for attempted mayhem was improper where it deviated from the pattern instruction’s examples of “serious bodily injuries” and instead used “a gunshot wound” as the example, as such an example focuses on the means by which the wound was caused, not its severity.
People v. Sojka, 2011 WL 2319945 (Cal. App. 2011):