While jury instructions first come into play toward the end of trial, it is critical that their preparation not be an afterthought. Before the first witness takes the stand, the trial attorney should have special jury instructions in hand to assist the jury in reaching a favorable verdict. A litigant is entitled to correct and nonargumentative instructions on every theory of the case supported by substantial evidence,1 whether or not that evidence is considered persuasive by the trial court,2 so it is foolhardy to squander the opportunity. Moreover, in criminal cases, the failure to anticipate the need for special instructions, also known as "pinpoint" instructions,3 can lead to claims of ineffective assistance of counsel. In civil matters, poorly drafted instructions often lead to a reversal of judgment. Thoughtful and well-conceived instructions explain the essential elements of civil claims or criminal offenses and highlight all viable defenses that the standard instructions overlook.
The California Rules of Court define "special jury instructions" (as opposed to "approved" Judicial Council instructions) as those that are derived from other than approved sources, "those that are specially prepared by the party, or approved instructions that have been substantially modified by the party."4 Special jury instructions can be a useful tool in all practice areas. In every case in which the standard CACI or CALCRIM instructions are silent on a particular legal issue, an opportunity awaits to tell the jury how the evidence should be considered. Additionall, litigators must be vigilant to make a proper record when a court denies a requested instruction or when the opponent's erroneous instruction is read to the jury.
Writing Special Instructions
Before sitting down to craft proposed special instructions, practitioners must be aware of the decisional guidelines and parameters the courts have set. In many respects, the authority regarding the requirements of special jury instructions applies equally to criminal and civil cases.
First, special instructions cannot be argumentative. As the California Supreme Court explained in People v. Wright,5 the wording of instructions must be neutral. In Wright, the defendant was convicted of armed robbery following a robbery at gunpoint involving several masked men. The sole evidence against the defendant at trial was eyewitness identification. The trial court rejected five special jury instructions that the defendant had requested regarding the accuracy of eyewitness identification.
For instance, an instruction offered by defendant Wright and rejected by the court highlighted certain items of evidence and urged the jury to consider those items in determining whether the defendant was guilty beyond a reasonable doubt. The second version of Wright's special instruction read, "In determining whether a reasonable doubt exists as to the guilt of Mr. Wright you may consider that: 1. All of the robbers wore masks; 2. The testimony of Inspector Cisneros regarding Peter Marino's comments at the time he viewed defendant Wright's photograph; 3. The testimony of Inspector Cisneros regarding whether or not he showed Erica Albertsen defendant Wright's photograph, and whether or not she recognized that photograph; 4. The testimony of Inspector Cisneros regarding Stephanie Sung's comments at the time she signed defendant Wright's photograph; 5. People's Exhibit Number 20, a pink card with the name Stephanie Sung."6
The appellate court in Wright found that the trial court properly rejected this instruction because it did not direct the jury's attention to facts relevant to its determination of the existence of reasonable doubt, or state in a neutral manner the relevant factors supported by the evidence.7 In other words, a defendant is entitled to a special instruction that specifically directs the jury attention to facts developed on cross-examination. However, where a proposed instruction focuses exclusively or primarily on the testimony of one witness, it runs afoul of well-settled law that it is improper to single out a particular witness and to charge the jury how this evidence should be considered.8
In a parallel civil case, Munoz v. City of Union City, the court explained the rationale for rejecting a proposed special instruction:
If the instruction embodies detailed recitals of fact drawn from the evidence, in such a manner as to constitute an argument to the jury in the guise of a statement of the law, it is improper. The matter may be entirely legitimate as argument by counsel, for when so used, the jury knows that it comes from an interested source and may weigh and consider it accordingly.9
Similarly, special instructions cannot too strongly emphasize a party's theory of the case. In Taha v. Finegold,10 a personal injury lawsuit involving a pedestrian who was struck by a truck, the defense prevailed at trial by persuading the jury through 16 special instructions that the plaintiff did not keep a continuous lookout for approaching traffic as he crossed the street. In contrast, the court only gave three instructions that referred to the corresponding obligations and duties of the truck driver. On appeal, judgment for the defendant truck driver was reversed. The court reasoned that because of the overemphasis on the plaintiff's actions, the jury was likely given the impression that a higher duty rested upon the plaintiff than on the defendant.11 Special instructions will also appropriately be denied if they are repetitive, and a court need not give a requested pinpoint instruction if it merely duplicates other instructions already being given.12
While it might be obvious that the trial court is not required to give instructions that are incorrect statements of law or are incomplete or misleading,13 counsel must be vigilant to assess whether clarifying instructions should be submitted to the jury. For example, in the employment discrimination case Pantoja v. Anton,14 the court of appeal ruled that while the instruction given was a correct statement of law, in the context of the facts of the case, it was error to give the instruction without clarifying instructions. At the request of the defense in Pantoja, the court gave a special jury instruction based on the seminal case of Lyle v. Warner Bros. Television Productions,15 which involved a discrimination claim by an employee who worked on the television show Friends and held that evidence of hostile, sexist statements is relevant to show discrimination on the basis of gender. A central fact in Lyle was that sex jokes were common at the comedy show's workplace. The defense's requested instruction in Pantoja was virtually a quotation of the holding in Lyle. But without clarifying instructions, the Lyle instruction seemed to limit the defendant's actionable behavior to sexual innuendos and coarse language, when in fact it could have included gender-based abusive language and unwanted touching. The judgment for defendant was reversed because at a minimum, the jury should have been instructed that abusive language or behavior of many kinds, not just sexual innuendo, can potentially create an actionable hostile workplace environment.
Similarly, the failure to request clarifying instructions in a criminal case led to a claim of ineffective assistance of counsel in People v. Garvin.16 The Garvin court held that upon a defense request supported by sufficient evidence, the court must instruct that the jury may consider the effect of "antecedent threats or assaults against the defendant on the reasonableness of defendant's conduct." But the court concluded that this was a specific point, not a general principle of law, and therefore the trial court was not obligated to instruct on this issue absent a request by defendant. Ultimately, the Garvin court rejected the defendant's contention that his attorney's failure to request instruction on this topic rendered his assistance ineffective and found instead his attorney's failure to develop this point and to request instruction was an objectively reasonable tactical decision.
Crafting Special Instructions
It is necessary in certain cases that the trial lawyer work collaboratively with the court to develop appropriate special instructions. A party is not entitled to have the jury instructed in any particular phraseology and may not complain on the ground that his or her requested instructions are refused if the court correctly gives the substance of the law applicable to the case.17 Additionally, while it may be more persuasive to the court to be presented with special instructions that have been drafted with the specific language lifted directly from the case law, it is not necessary. It is sufficient if the cited authority at least suggests that a particular factor or rule of law can be extracted from the case and be fashioned into an appropriate instruction.18
Further, practitioners should also confidently redact and modify existing instructions if the facts warrant it. For example, in Logacz v. Limansky,19 a medical malpractice case, a woman allegedly died as the result of the professional negligence of the defendant doctor. The defense was that the woman's obesity and sedentary habits were contributing factors to her death. At trial, the plaintiffs requested a jury instruction on concurrent causation so they could argue that the defendant's negligence, even in the presence of the negligence of others, could be found to be a legal cause of her death. However, the requested instruction was denied because the court claimed it had not been properly redacted. On appeal, the doctor claimed that the court was justified in refusing the requested instruction because it referred to "injury instead of death."20 The court of appeal disapproved of this argument, stating, "We also see no reason why the trial judge could not have made the interlineation change required to conform the printed instruction to the particular facts of this case if a realistic concern existed that the jury might have been confused by the reference to injury."21
Special instructions may be appropriate even when there are standard instructions that seemingly fit the bill. For instance, in Gdowski v. Louie,22 the parties owned adjoining properties. Following heavy rains and flooding, one neighbor claimed that the others were responsible for her loss because their landscaping had altered the natural flow of the surface waters. On appeal, the plaintiff raised contentions of instructional error because the court rejected the proffered special instructions, choosing instead to rely on BAJI instructions on general principles of negligence and contributory negligence. This constituted prejudicial error requiring retrial before a properly instructed jury, because decisional law defining liability based upon a defendant adjacent landowner's diversion of the natural flow of water made clear that traditional negligence principles did not apply.23
After a trial, the losing party is likely to review the record for instructional error, whether the instruction was a special instruction or a form instruction. Reversal due to instructional error is an area in which criminal and civil standards diverge. There is a high standard for reversing a civil case on these grounds, and there is no automatic reversal merely because a trial court has failed to properly instruct a jury.24 Judgment may not be reversed for instructional error in a civil case unless it meets the miscarriage of justice standard dictated by Article VI, Section 13 of the California Constitution.25 In other words, if there was an error in instructing the jury, the judgment will be reversed only when the reviewing court, after an examination of the entire case, concludes that the error resulted in a miscarriage of justice. The courts also look for prejudicial error, finding it where it seems probable that the instructional error affected the jury's verdict.26 As the Soule court put it, the determination of prejudice "depends heavily on the particular nature of the error, including its natural and probable effect on a party's ability to place his full case before the jury."27
Instructional error in a civil case was found in Bowman v. Wyatt,28 a personal injury case. The plaintiff in Bowman brought a lawsuit against the city of Los Angeles and one of its workers when the plaintiff's motorcycle collided with a dump truck driven by the worker. The case involved significant disputed issues, including whether the driver was an independent contractor or city employee. In its analysis, the Bowman court first sought to determine whether the jury instruction that described the factors the jury should consider in determining whether the driver was an employee or an independent contractor correctly stated the law. The instruction given at trial erroneously instructed the jury that if it found the city had the "right of control" over how the driver performed his work, then the driver was an employee. Through this lens, the appellate court found that the instruction misled the jury into understanding that the "right of control" was the sole factor to consider in deciding this crucial issue, when in fact the law in California sets out multiple factors to consider when distinguishing between an independent contractor and an employee. In this case, since there was substantial evidence from which the jury could have concluded that the driver was an independent contractor and absolved the city from liability, the instruction was prejudicial.
The standard for instructional error in criminal cases was recently discussed by the California Supreme Court in People v. Moore.29 Moore is helpful to consider even though the instructions subject to complaint were from CALJIC. Defendant Moore was charged with two counts of robbery and two counts of murder resulting from the stabbing of his two victims during a robbery of their jewelry. Because Moore was found in possession of the victims' jewelry, the court gave an instruction based on CALJIC 2.15: "If you find that the defendant was in conscious possession of recently stolen property, the fact of such possession is not by itself sufficient to permit an inference that the defendant is guilty of the crimes charged. Before guilt may be inferred, there must be corroborating evidence tending to prove defendant's guilt. However, this corroborating evidence need only be slight and need not by itself be sufficient to warrant an inference of guilt. As corroboration, you may consider the attributes of possession, time, place, and manner that the defendant had an opportunity to commit the crime charged, the defendant's conduct, and any other evidence which tends to connect the defendant with the crimes charged."
On appeal, Moore complained that this instruction allowed the jury to infer the defendant's guilt in the murders based on his possession of the jewelry, when instead the instruction should have been only applicable to the robbery charges. The court applied the instructional error standard enunciated in People v. Watson,30 namely, whether defendant has established a reasonable probability that a result more favorable would have been reached in the absence of the error. Ultimately, in Moore, the court found the instructional error was harmless in light of the evidence and the other instructions.
Moreover, courts have long looked askance at an appellant's claims of erroneous instructions when the record makes clear that the errant jury instruction was either submitted by the party or that the party failed to object. The doctrine of invited error bars appellants from attacking a verdict that resulted from their own jury instruction.31 If the record does not clearly show which party requested the challenged special instruction, the appellate court will assume that the appellant requested it and will not allow that party to claim error.32 Nor can a party complain on appeal that an instruction that is correct on the law was too general or incomplete unless the party requested an additional or qualifying instruction at trial.33
Recent decisional law regarding special jury instructions demonstrates that the courts are cognizant that in some areas, the law is quickly evolving ahead of CALCRIM and CACI. Therefore, it is in the client's best interest to propose special instructions that reflect the changes in the law. However, this approach also presents potential hazards.
For example, in Mize-Kurzman v. Marin Community College District,34 the California Court of Appeal recently acknowledged the necessity for trial courts to properly instruct the jury on dispositive issues not covered by CACI jury instructions, stating:
As the court recognized, California Rules of Court, rule 2.1050(e) provides in relevant part: "[w]henever the latest edition of the Judicial Council jury instructions does not contain an instruction on a subject on which the trial judge determines that the jury should be instructed, or when a Judicial Council instruction cannot be modified to submit the issue properly, the instruction given on that subject should be accurate, brief, understandable, impartial, and free from argument."35
In Mize-Kurzman, an employee alleged retaliation by a community college district and its board of trustees after she made four disclosures of what she believed to be violations of law and regulations. Her case came to trial alleging violations of two California whistle-blower protection statutes. The trial court gave two special instructions on what constituted protected disclosures, acknowledging the absence of CACI jury instructions on that necessary element. The trial court relied on the federal law standards in constructing the special instructions, but in doing so misstated the applicable California law. The court of appeal reversed the judgment for the employer and remanded the case for retrial.36
Attorneys can be the most effective advocates for their clients in trial when they are poised to take advantage of the opportunity to use special instructions especially in new areas of law, while attentive to the potential for instructional error on appeal.