Jury instructions in a criminal trial can snatch defeat from the jaws of acquittal (and vice versa). In United States v. Mariano, issued on September 9, 2013, the Eighth Circuit reaffirmed prior precedents that “a defendant who requests and receives a jury instruction may not challenge the giving of that instruction on appeal.” By getting what he asked for, such defendant has “waived [that is, intentionally abandoned] his right to object to [it].” Moreover, he “need not personally waive objections to jury instructions, as they raise questions of law to be handled by counsel.” The takeaway is that if the defense requests a specific jury instruction, it had better get the law right at the time it is proposed . . .
Getting the jury instruction right is one thing, but making a compelling case for why it should be given to the jury is another, as Judge Loken emphasized in a concurring opinion in another recent Eighth Circuit opinion, United States v. Rhodes, issued on September 13, 2013. Rhodes addressed the sufficiency of trial evidence relating to a charge of using premises for the purpose of distributing a controlled substance. Judge Loken wrote separately to address the definition of “purpose” in the applicable statute, and how and whether this should be defined for a jury. In Rhodes, the district court had instructed that drug distribution must be “one of the primary or principal uses” of the premises. In a previous decision, United States v. Payton, 636 F.3d 1027, 1043 (8th Cir. 2011), the Court had found no error where the trial judge refused to define the word “purpose,” on the ground that it “lies within the common understanding of jurors and needs no further elaboration.” Noting “the district court’s substantial discretion in formulating jury instructions” Judge Loken continues:
In Payton and in Rhodes, two district courts took different approaches to this instruction issue after two different trials. One concluded the “purpose” element needed no special definition; the other thought the Model Instruction would be helpful to the jury. It does not confuse or corrupt this element of the statutory offense if we conclude that neither approach abused the district court’s discretion to decide how to better assist the jury in a particular case.