JURY INSTRUCTIONS AS POTENTIAL SEPARATION OF POWERS - DUE PROCESS VIOLATIONS

How many defense attorneys out there look at standard jury instructions for the first time right before the charge conference at the close of the prosecution’s case? Probably most. They’re standard right, so what’s the problem?

On the other hand, we think that most prosecutors will review relevant standard jury instructions, early on, and likely pre-filing, thinking ahead to what they must prove in trial and what specifically the jury will be instructed on.

There are three constitutional imperatives which govern jury instructions on criminal offenses. The first is that it is the legislature, not the courts, which establishes and defines offenses and their relationship to each other.. The second constitutional imperative governing jury instructions on lesser included offenses is the due process requirement that before the trial begins the defendant be placed on notice of the specific charges upon which he can be convicted.. The third constitutional imperative is that the state is entitled to select the criminal charges it will bring. Ohio v. Johnson, 467 U.S. 493, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984). The state exercises its prerogative by information or indictment which notifies the defendant of the specific statutes he is charged with violating. This charge includes the greater cited offense and all necessarily included offenses as defined by section 775.021(4).. Wilcott v. State, 509 So. 2d 261, 263-265 (Fla. 1987)

Jury Instruction Committee Activities Analysis Needed-

In a perfect world the statutory elements would be defined by statute and incorporated directly into standard jury instructions, But, its not a perfect world, as legislatures typically do not define all operative words used as offense elements. Already, Wilcott, supra, prong one has been violated.

The failure of Wilcott prong one by any legislature creates potential for abuse.

Two Problems Identified-

We are seeing a growing trend where standard jury instructions don’t track an offense statutes either by changing operative words promulgated, or by expanding the definition of a word (element) beyond its common meaning. We think that both of those anomalies represent separation of powers violations leading to procedural due process errors that flow through to charging documents, trials and convictions.

Suspect Anomaly #1, Theory Analysis-

We are seeing an increasing number of criminal Informations that do not track statutory offense elements, but do track the standard jury instructions for those offenses. That happens, because promulgated elements are being redefined through judicial inclusion of things that were not promulgated by the legislature, and are not included in the common meaning of a word element of a criminal offense. Once one court expands a word definition through inclusion of other nouns not typically included in the common meaning of the first word, the judiciary’s jury instruction committee may take that case and propound a new jury instruction expanding the reach of the original criminal offense to include things never contemplated by the legislature. Again, these things violate Wilcott prong one, supra.

In the absence of a statutory definition, resort may be had to case law or related statutory provisions which define the term, and where a statute does not specifically define words of common usage, such words are construed in their plain and ordinary sense.. In the absence of such a definition, the plain and ordinary meaning of the term can be ascertained by reference to a dictionary.. Any doubts as to the constitutionality of the statute must be resolved in favor of its constitutionality.. Jones v. Williams Paun Gun, 800 So. 2d 267, 270 (Fla. 4th DCA 2001)(internal citations omitted)

This issue does not involve defining the word used by the legislature, especially a noun, but does involve adding things to that word’s common meaning that are absurd. This appears to be a crack in existing caselaw and something that is being abused.

As a result of word meaning inclusion effecting jury instructions only, we are seeing prosecutors supplanting legislative elements with judicially created elements, thereby expanding criminal offenses without new legislation.

It goes like this, if the statutory elements are 1-2-3-4, you would expect the jury instructions to also be 1-2-3-4, but due to a judicially created expansion of a word to include other nouns not within the common meaning of any word, we are seeing charging documents that contain elements 1-2-3-5 (with no 4), because the jury instruction contains an inclusion provision 4=5. This is judicial fiction, unless the word incorporated is a part of the common meaning of the legislatively undefined element. It cannot be an absurd inclusion, because that is an unconstitutional expansion of the statute by the judiciary, we think.

Fix Recommendation #1-

Attorneys should take a look at charged offenses, especially more egregious offenses, and see whether the offense elements charged track the statute and legislative definitions, or not. If the charging document tracks the jury instruction elements and definitions, but not statutory elements and definitions there may be a constitutional motion to be made and addressed by the trial court pretrial.

Suspect Anomaly #2, Theory Analysis-

Anomaly two is more straightforward. We are seeing jury instructions containing operative words that are contrary to an express word used by the legislature pertaining to criminal offense statutes, that are not elements of offenses. This is a different issue than a court defining a legislative word used, instead, the word is simply changed in the jury instructions to a different word that has a completely different common meaning.

We think that where a legislature states its specific intent regarding a particular word that is not followed by the judiciary jury instructions committee, it means that the judiciary is engaging in self-help to save an otherwise unconstitutional statute from being scrutinized too closely.

Fix Recommendation #2-

If the jury instruction word definition is different than the legislature’s specific word used, regarding some material aspect of an offense charged that the jury would consider during deliberations, then the separation of powers issue and procedural due process issue is on the table.

For instance, Florida Statutes § 893.101(3), with specific intent stated, uses the word “presumption”, while the concomitant jury instruction for § 893.101(3) ipso facto changed that word to “infer”. The problem with that change is that the two words have different legal meanings, and the legislature specifically promulgated the word “presumption”. This particular law is embedded into Florida drug laws that result in people going to prison for decades on a regular basis. We think the word was changed by the judiciary’s jury instruction committee as a self-help procedure to draw attention away from the statute as written, that looks facially unconstitutional. The statute is either unconstitutional or not, but the jury instruction committee has no constitutional authority to attempt to save the statute with backroom fixes like that one.

Again, anomaly two sounds in a separation of powers violation and effectively a procedural due process violation effecting standard jury instructions that a juror must consider during deliberations.

Final Thoughts-

Administrative Procedures Act (“APA”) inquiries are only applicable to challenging actions taken, rules, policies, procedures, etc.., for agencies of the executive branch of government. We don’t see any administrative remedy available for attacking the constitutionality of a standard jury instruction promulgated by a jury instruction committee. The only remedy we are aware of is to attack the validity of that act via a criminal case number using constitutional arguments in the case number where the issue arises. That argument would likely sound in separation of powers violations leading to procedural due process violations stated.

If you see jury instruction anomalies staring you in the face you may want to consider acting upon them with the filing of an appropriate motion pre-trial.

We appreciate commentary from the legal community regarding any subject matter we present as a conflict of law issue, or matter of first impression. If anyone disagrees with the logic or theory expressed in this Article please tell us so we can fully examine that alternate view.

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The issues raised in this Article are of first impression, and are solely intended to bolster critical thinking regarding these conflict of law issues presented. As with any conflict of law issue, reasonable minds may differ which legal argument or conclusion drawn is correct. Federal Sentencing Alliance is not a law firm and does not give legal advice. Rather, Federal Sentencing Alliance is a think tank for conflict of law issues. The opinions expressed are those of the Author only.

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