| Both the prosecution and a defendant have a right to request that certain instructions be submitted to a jury when a trial court charges the jury. A request for the instructions must be made in writing and must be presented to the trial court prior to the trial court's charge to the jury. The request may also be dictated to a court reporter in the presence of the trial court and counsel for both parties.
Once a trial court has been presented with requested jury instructions, the trial court must give the requested instructions or must refuse the requested instructions. In order to preserve error for purposes of an appeal, a defendant must make a record that shows that his or her requested instructions were presented to the trial court in a timely manner. The defendant normally accomplishes this by requesting the trial court to make a ruling on the record regarding the instructions.
Requested jury instructions are generally used to call attention to errors or omissions in a trial court's charge to the jury. The requested jury instructions may be used in lieu of an objection to the trial court's charge to the jury. The requested jury instructions preserve any error for purposes of an appeal with regard to an incorrect charge to the jury. However, if a defendant makes a request for an incorrect jury instruction, and the incorrect jury instruction is submitted to the jury, the defendant cannot claim on appeal that the instruction constituted error.
A trial court generally refuses requests for jury instructions that are vague or misleading or that contain incorrect statements of the law. If a requested jury instruction is similar to the trial court's charge to the jury or if it is adequately covered by the trial court's charge to the jury, the defendant is not harmed by the trial court's denial of the requested jury instruction.
If a trial court grants the request of the prosecution or the defense for an instruction, the trial court must incorporate the instruction in its charge to a jury. The trial court may not inform the jury that the instruction was requested by the prosecution or by the defense. If the trial court merely attaches the instruction to its charge to the jury and does not incorporate it in its charge to the jury, the requested instruction is not part of the charge. If failing to charge the jury in accordance with the requested instruction constitutes error, a defendant's conviction may be reversed on appeal. Copyright 2010 LexisNexis, a division of Reed Elsevier Inc. |