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Robbins: Understanding jury instructions

In Colorado, it’s a book about th————————————–is thick.

But I’ll come back to that.

If you watched the recent Kyle Rittenhouse or Ahmaud Arbery trials — especially when they wound to their ends — before the respective juries retired for deliberation, you may have noticed that the judge in each case went through a long list of jury instructions. Where, you may have asked yourself, do jury instructions come from and what exactly is their purpose?



Well, like many things, looking from the outside in, they may not be what you imagine. So come with me to take a peek behind the ermine curtain.

The Colorado Jury Instructions come in two flavors: Criminal and Civil. They are cited, for example, as CJI-Civ. 1:1, 2018 which identifies that the particular jury instruction referenced in this example is for civil trials, is found at Chapter 1 of the Instruction Book (in this case, referencing “General Instructions” to the jury), and is instruction number 1 (again, in this case, “Introductory Remarks to the Jury Panel”). The date advises from which printing of the Instructions this one was gleaned.



THE CJI is printed by the Supreme Court Committee on Jury Instructions, the Committee being comprised of prominent jurists, attorneys, and usually a law professor or two from around the state. The book itself is broken into chapters with headings such as “Statement of the Case to Be Determined,” “Evidence,” and “Bailors and Bailees.” Last I looked, there were more than 40 chapters and each chapter is divided into the smaller bits of the specific rules themselves that fall under the particular chapter heading. Under the chapter heading “Deceit Based on Fraud,” as one example, there are 20 or so instructions ranging from “False Representation — Elements of Liability” to “Affirmative Defense-Waiver by Plaintiff Prior to Plaintiff’s Complete Performance.” Each Chapter is similarly divided.

By now, your shoulders may be up around your ears. “Well, OK then,” you may be saying to yourself, “But… um… so what?”

Rule 51 of the Colorado Rules of Civil Procedure (“C.R.C.P”) says this, “The parties shall tender jury pursuant to [Rule] C.R.C.P. 16(d). All instructions shall be submitted to the parties, who shall make all objections thereto before they are given to the jury…. Before argument, the court shall read its instructions to the jury but shall not comment upon the evidence. Such instructions shall be taken by the jury when it retires. All instructions offered by the parties, or given by the court, shall be filed with the clerk and, with the endorsement thereon indicating the action of the court, shall be taken as a record of the cause.”

There is a lot to unpack here.

First, you’ll note that “the parties” shall tender the jury instructions pursuant to Rule 16(d) which rule provides for case management and, among other things, for an orderly exchange of proposed jury instructions and verdict forms. What I’d like you to focus on here is the term, “the parties” as it is the parties, and not the court, who initially tender which instructions will be (or should be) presented to the jury.

Before we go further, think of jury instruction as the recipe. What has been presented at the trial are the ingredients. And what the jury instructions consist of is how to assemble and “bake” the evidence into the souffle of a verdict. Jury instructions are the “how to” manual of what to do with the evidence presented, to put the parts together to determine where — according to the law — the equities lie.

The next bit under Rule 51 states that, “All instructions shall be submitted to the parties, who shall make all objections thereto before they are given to the jury.” The way it goes most times is this: the parties (actually, the parties’ counsel) determine between them which instructions are relevant to the case, which may or should be presented to the jury for consideration, and how the particular instructions to be tendered should be modified to fit the facts of the case. This sometimes involves a bit of bickering and/or horse trading into which the judge steps to resolve disputes.

Next, the rule provides that, “Before argument, the court shall read its instructions to the jury but shall not comment upon the evidence.”

What this means is, that although the written instructions will be given to the jury to take with them to refer to in their deliberations, before they are set free to deliberate, the judge will read each instruction to the jury. That’s what you likely witnessed in the Rittenhouse and Arbery cases. Further, the judge may not embellish or comment upon the instructions, not even to opine that they will make a yummy recipe.

Once read, off the jury goes to discuss, debate, consider, and assemble the evidence pursuant to the “recipe” of the instructions.

One last thing, Rule (d) also provides for jury verdict forms. Think of these as ballots. The forms are sort of checklists which must be checked off according to the evidence, what the jury has made of it, and what specific determinations it has reached.

A partial jury verdict form may look something like this:

We, the jury, present our answers to questions submitted by the court, to which we have all agreed:

CLAIMS AGAINST [the Defendant]

1. Do you find that [the plaintiff] is entitled to recover damages from [the defendant] on its claim of sale of a defective product under Instruction No. _____. (Yes or No)

ANSWER: ________

2. Do you find that [the plaintiff] is entitled to recover damages from [the defendant] on its claim of breach of implied warranty of merchantability under Instruction No. _____. (Yes or No)

ANSWER: ________

3. Do you find that [the plaintiff] is entitled to recover damages from [the defendant] on its negligence under Instruction No. _____. (Yes or No)

ANSWER: ________

… and so on.

Jury Instructions are both the recipe and compass of a jury trial that assure, while there are differences between the parties, all are on the same page when at last — after consideration of all the evidence — all oars of the final determination are rowing in the same direction.


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