Key Concepts

  • The judge is required to correctly instruct the jury on the law regarding all substantial features of the case, and may (or, if specifically requested by a party, must) also correctly instruct the jury on the subordinate issues in the cases.
  • Parties must be given an opportunity to object to incorrect or improper instructions, and failure to object will waive the matter on appeal, unless it is plain error.
  • In response to an incorrect or omitted instruction, a question from the jury, or a report of jury deadlock, the court may give additional instructions to address the issue and encourage the jury to reach a verdict.

 

Practice Pointer

Pattern Jury Instructions.
Pattern jury instructions are available for the vast majority of criminal and motor vehicle offenses, affirmative defenses, evidentiary considerations, and other related matters. These instructions can be accessed and searched online here.
If there are no pattern instructions available for a particular offense, the prosecutor should draft a proposed instruction that tracks the language of the statute and sets forth each of the elements the state has to prove and be prepared to submit that proposed instruction in writing to the judge at the charge conference. Similarly, if there are no pattern instructions available for an affirmative defense or any other legal matter arising in the case, the prosecutor should draft proposed instructions for that issue as well. See, e.g., State v. Miller, 258 N.C. App. 325 (2018) (“In North Carolina, there is no pattern jury instruction that expressly addresses the defense of necessity,” but if the facts at trial support the defense, the trial court is obligated to give a proper instruction “in accordance with the established elements of that defense”). 

Purpose and Procedure

The primary reasons for instructing the jury are (i) to clarify the issues, (ii) eliminate extraneous matters, and (iii) explain the applicable law. State v. Cousin, 292 N.C. 461 (1977)State v. Little, 163 N.C. App. 235 (2004). Most judges just rely on the North Carolina Pattern Jury Instructions to provide a concise and accurate summary of each element or issue, but the judge has wide discretion in presenting the issues to the jury and does not have to use the exact words found in the pattern jury instructions. The judge may modify or even replace the suggested instructions, as long as the judge correctly charges the applicable principles of law and does not express an opinion as to whether any fact has or has not been proven. See G.S. 15A-1231, 1232State v. Harris, 306 N.C. 724 (1982). The judge also may, but is not required to, summarize the evidence presented at trial to the extent necessary to explain the application of the law to the evidence. See G.S. 15A-1232; State v. Blue, 356 N.C. 79 (2002)State v. Taylor, 80 N.C. App. 500 (1986). But if the judge does decide to summarize the evidence, he or she must be vigilant not to express an opinion about the quality of the evidence or credibility of witnesses. See State v. Artis, 325 N.C. 278 (1989), vacated on other grounds, 494 U.S. 1023 (1990)

Before closing arguments, the judge must conduct a charge conference (outside the presence of the jury) to discuss the proposed instructions. G.S. 15A-1231(b). The judge must inform the parties which instructions (elements of the offense, lesser-included offenses, affirmative defenses, special requests, etc. – see more on this below) he or she plans to give. Id.  The charge conference must be recorded, see G.S. 15A-1231(b), (d); G.S. 15A-1241; General Rules of Practice for Superior and District Courts, Rule 21, but failure to record the conference will not provide grounds for an appeal unless it was not corrected before the end of trial and it materially affected the defendant’s case, see State v. Brunson, 120 N.C. App. 571 (1995). Again, the judge may not express any opinion about the strength of the case or what the jury’s verdict ought to be. See G.S. 15A-1222; 15A-1232N.C.P.I.—Crim. 101.35.

Practice Pointer

Conducting the conference
At the conclusion of all the evidence and before the closing arguments, the judge will excuse the jury and proceed to the charge conference. Most judges will already have a pretty good idea of which instructions they plan to give, and will recite a proposed list to both counsel (“I plan to give instruction 101.05 - function of the jury; instruction 101.10 - burden of proof and reasonable doubt; 101.15 - credibility of witnesses,” and so on). The judge will then ask counsel for both sides if they have any requests for modifications to the instructions selected, or for additional instructions not yet included.
Prosecutors should pay particular attention to the instructions on the substantive offenses and affirmative defenses, not only to make sure the judge has selected all the correct instructions, but also because these instructions often require the judge to fill in blank parentheticals where the instructions simply say “describe assault” or “name weapon,” so it is extremely important to make sure the state agrees with how the judge proposes to characterize the evidence. If a prosecutor intends to ask for a specific phrasing, alteration of a pattern instruction, or a special instruction the prosecutor has drafted, those instructions should be prepared in writing ahead of time. The prosecutor should also be prepared to argue against any instructions requested by the defense that are not warranted by the law or the evidence.

The judge has the inherent authority to choose to give a written copy of the instructions to the jury, and he or she may also allow the jury to take those instructions with them into deliberations – the decision whether to provide written instructions is discretionary, and will not be reversed on appeal absent an abuse of discretion. See State v. McAvoy, 331 N.C. 583 (1992) (judge erred in advising jury that he did not have authority to provide the jury with written instructions); State v. Hester, 111 N.C. App. 110 (1993) (trial court could allow members of jury in murder prosecution to take written instructions into jury room).

Main Types of Jury Instructions

  1. Substantial Features of the Case

A trial judge must state and explain the law on all substantive features of a case arising from the evidence, whether or not specifically requested by attorneys in the case. G.S. 15A-1221(9), -1231(c)-1232; State v. Harris, 306 N.C. 724 (1982). This means the judge must instruct the jury as to the crime charged, any lesser-included offenses, affirmative defenses, and identity of the defendant as the perpetrator. See State v. Shaw, 322 N.C. 797 (1988)State v. Kinard, 54 N.C. App. 443 (1981). Note that when the state’s evidence is positive as to each and every element of the crime charged and there is no conflicting evidence, instructions on any lesser-included offenses are not required, see State v. Millsaps, 356 N.C. 556 (2002)State v. Harvey, 281 N.C. 1 (1972), but if there is conflicting evidence or some positive evidence of a lesser offense, then the judge must instruct on the lesser-included offense as well, even if it is not specifically requested by the defense, see State v. Lawrence, 352 N.C. 1 (2000)State v. Montgomery, 341 N.C. 553 (1995)State v. Lowe, 150 N.C. App. 682 (2002) (stating that a judge should instruct on a lesser included “even in the absence of a request by the defendant, where sufficient evidence of the lesser offense is presented at trial”).

In rare cases, the defense might not only decline to request instructions on a lesser-included offense, but actually object and request that the court not give the instructions, in the hope that the jury will return a not guilty verdict on the higher charge. Even when faced with an objection from the defense, the judge should still instruct on the lesser offense if it’s appropriate based on the evidence. See State v. Jones, 149 N.C. App. 977 (2002) (unpublished) (“the cases cited by defendant do not support the proposition that a defendant has a right to not have lesser included offenses raised by the evidence submitted to the jury. […] Likewise, our research has failed to disclose any case law or statutory authority for that proposition. Therefore, we conclude that a defendant has no such right.”). However, if the court does honor the defendant’s wishes and declines to charge the jury on the lesser offense, then the defendant is barred from later arguing on appeal that such an instruction should have been given. See State v. Williams, 333 N.C. 719 (1993) (defendant was charged with first-degree murder and indicated to the judge that he did not want the jury instructed on second-degree murder, so “any error in not instructing on the lesser-included offense was invited by defendant” and thus the defendant was “not entitled to any relief and will not be heard to complain on appeal”).

  1. Subordinate Issues and Requests for Special Instructions

Request for special jury instructions on subordinate issues in the case can be made by any party, and must be in writing with copies to other parties. G.S. 15A-1231(a). A “subordinate” issue is an evidentiary matter which does not relate to the elements of the crime charged or defendant’s criminal responsibility. Examples of instructions on subordinate issues include witness credibility, flight, and impeachment by prior conviction. If the judge gives an instruction on a subordinate feature of the case, the judge must charge it fully and accurately. See State v. Corn, 307 N.C. 79 (1982) (although a trial judge is not required to give requested instructions verbatim, the court is required to give the requested instruction at least in substance if it is a correct statement of the law and supported by the evidence). In other words, the judge is not required to instruct on a subordinate issue or to elaborate on a particular point concerning an issue of substantive law unless a request for that special jury instruction is made by a party – but if a party does request an instruction on a subordinate feature, and if that instruction is correct in law and supported by the evidence in the case, then the judge must give it. See State v. Monk, 291 N.C. 37 (1976).

  1. Reasonable Doubt Instruction

An instruction on the meaning of “reasonable doubt” is treated like a subordinate issue, so the judge is not required to give an instruction on it unless requested by a party. State v. Shaw, 284 N.C. 366 (1973). But in practice, the standard definition found in pattern jury instruction 101.10 is almost universally given, whether specifically requested or not. Some prosecutors prefer the alternate definitions of reasonable doubt found in cases like State v. Williams, 308 N.C. 47 (1983) (“fully satisfied or entirely convinced or satisfied to a moral certainty of the truth of the charge”), State v. Ward, 286 N.C. 304 (1974) (reasonable doubt is not “born of merciful inclination or disposition to permit the defendant to escape the penalty of law”), and State v. Hammonds, 241 N.C. 226 (1954) (“satisfied to a moral certainty”).  However, prosecutors should avoid using any reasonable doubt instructions that include the phrase “moral certainty,” since it may ultimately be found unconstitutional. See, e.g., State v. Warren, 348 N.C. 80 (1998) (noting several cases which have disapproved of the term because “when considered in reference to ‘moral certainty’ rather than evidentiary certainty, a reasonable jury could find the defendant guilty on a degree of proof less than a reasonable doubt”). The standard reasonable doubt instruction found in N.C.P.I.—Crim. 101.10 may be less expressive and colorful, but it is clearly constitutional.

  1. Other Definitions

It is not error for the judge to decline to define or explain words of common usage and meaning known to the general public, unless of course it is requested by a party and supported by the evidence, in which case the court must give it. For example, most judges will choose to include the definition of “intent” in N.C.P.I.—Crim. 120.10, but it would not be error to decline to do so if it was not requested by either party. See State v. Jones, 300 N.C. 363 (1980). However, if the meaning of a word is not clear, or if it has a unique legal context, then the judge must define it to give the jury proper guidance. See State v. Patton, 18 N.C. App. 266 (1973) (error for judge not to define “drunk” or “intoxicated” in context of a public intoxication case). 

  1. Instructions About the Role and Conduct of Jurors:

The judge is required to instruct the jury that in order to return a verdict, all 12 jurors must agree to a verdict of guilty or not guilty. G.S. 15A-1235(a); N.C.P.I.—Crim. 101.35. The judge also “may” instruct the jury that they have a duty to deliberate and consult with one another with a view towards reaching an agreement, but also that they must each decide the case for themselves, and they should not hesitate to re-examine their own views but also should not surrender an honest conviction solely for the purpose of reaching a verdict.  See G.S. 15A-1235(b); see also G.S. 15A-1236(a); N.C.P.I. – Crim. 100.31 (general admonitions to jurors before taking a recess); State v. Richardson, 308 N.C. 470 (1983) (trial judge properly admonished jury -- judge is not required to recite each provision of statute at every recess). 

Objections to Instructions

Any objections to jury instructions must specifically state what part of the charge is objected to and the grounds for the objection, and must be made before the jury retires and begins to deliberate. Failure to object to an alleged error in any part of a jury instruction actually given or the omission of an instruction required by law constitutes a waiver of the right to assert the alleged error on appeal. G.S. 15A-1446(b); North Carolina Rules of Appellate Procedure, Rule 10(b)(2). State v. Bennett, 308 N.C. 530 (1983). Similarly, as discussed in Section B.1. above, a defendant who does not request that the trial judge submit a lesser-included offense to the jury, or actually requests that the lesser-included not be submitted, waives the right to argue on appeal that the failure to give that instruction was error. State v. Gay, 334 N.C. 467 (1993)State v. Williams, 333 N.C. 719 (1993).

Practice Pointer

Opportunity to object
To give the parties a final opportunity to note any objections, the judge will usually excuse the jury at the conclusion of the instructions, but tell them not to begin deliberating until he sends in the verdict form. After the jury leaves, the judge will ask both sides if they have any objections to the instructions that were just given. If there is an objection, the judge will rule on it and then call the jury back out to re-instruct, if necessary. Otherwise, the judge will send in the verdict form and the jury will begin deliberating. See N.C.P.I.—Crim. 101.35.

If the defendant fails to object to an instruction, the objection is waived and the appellate courts will only reverse for plain error: “plain error or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” State v. Odom, 307 N.C. 655 (1983) (adopting plain error rule as an exception to Rule 10(b)(2)). See also State v. Lawrence, 365 N.C. 506 (2012) (reaffirming plain error standard in Odom, requiring showing of a fundamental error that resulted in prejudice); State v. Lilley, 318 N.C. 390 (1986) (no plain error when trial judge failed to instruct jury on right of one attacked in own home to act in self-defense without retreating). The courts have further explained that the plain error rule should apply only in truly exceptional cases. See State v. Walker 316 N.C. 33, 39 (1986)State v. Morgan, 315 N.C. 626 (1986)State v. Oliver, 309 N.C. 326 (1983) (party alleging error has the burden of establishing its right of appellate review); State v. Odom, 307 N.C. 655, 660-661 (1983) (“even when the plain error rule is applied, it is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court”) (internal citations omitted).

Additional/Corrected Instructions

 After the jury has retired for deliberations, the court may recall the jurors to give additional instructions when needed to: (i) respond to an inquiry from the jury; (ii) correct or withdraw an erroneous instruction; (iii) clarify an ambiguous instruction; or (iv) instruct on an additional point of law that should have been included in the earlier instructions. See G.S. 15A-1234; N.C.P.I.—Crim. 101.35. Whenever additional instructions are given, the judge may also exercise his or her discretion to repeat some or all of the original instructions that were previously given. See State v. Prevette, 317 N.C. 148 (1986). Repeating the entirety of the prior instructions is not required, and in fact it has been deemed “undesirable” or even erroneous in some circumstances. See State v. Dawson, 278 N.C. 351 (1971). Before giving any additional instructions, the judge must inform the parties of the instructions he or she intends to give and allow them an opportunity to be heard – but the judge does not have to give the parties an opportunity to he heard if he or she is merely repeating or clarifying the prior instructions. See G.S. 15A-1234(c); State v. Weathers, 339 N.C. 441 (1994)State v. Davidson, 131 N.C. App. 276 (1998).

If the court does give additional instructions, they must be given in open court, on the record, and the entire jury must be present in the courtroom. See G.S. 15A-1234(d); State v. Tucker, 91 N.C. App. 511 (1988). Additionally, if the new instructions change the permissible verdicts of the jury, counsel for all parties must be allowed to make additional arguments to the jury – otherwise, it is left in the court’s discretion whether to allow additional arguments or not. See G.S. 15A-1234(c).

Practice Pointer

Get it in writing
Most judges will do this anyway, but if the jury indicates that it has a question about the instructions or a request for clarification, it is always preferable to have the foreperson write it down and send it out to the judge. The main reason for this is because it forces the jurors to clarify precisely what it is they need to know, but it also makes it easier for the judge and the parties to discuss (in advance, and outside the jury’s presence) how best to respond, and avoids the risk that one “question” will turn into a back-and-forth “conversation” with the jury, inviting error on appeal.

Instructing a Deadlocked Jury (Allen Charge)

If the jury informs the court that they are deadlocked, the judge may not attempt to “coerce” the jury into reaching a decision or compel them to continue deliberating for an unreasonable length of time (see more about this in the related entry on Jury DeliberationsG.S. 15A-1235(c); State v. Easterling, 300 N.C. 594 (1980) (judge may not inform jury of potential expense and inconvenience of retrying case if it fails to agree). However, there are a couple things the judge can do that may help break the deadlock. 

First, the court is permitted to inquire about the current “numerical division” of the jurors, such as whether they are divided 6-6 or 10-2, but the court should not ask whether the vote currently favors a verdict of guilty or not guilty. Inquiries about the numerical division of the jury are permitted because they are “often useful in timing recesses, in determining whether there has been progress toward a verdict, and in deciding whether to declare a mistrial because of a deadlocked jury.” See State v. Fowler, 312 N.C. 304 (1984), quoting State v. Yarborough, 64 N.C. App. 500 (1983); accord State v. Williams, 315 N.C. 310 (1986). In addition to providing useful guidance to the parties and the court, this inquiry may also have the incidental effect of encouraging the jurors to continue to work towards a unanimous resolution.

Second, the judge may instruct (or re-instruct) the jury pursuant to G.S. 15A-1235(b) to remind them of their solemn duty as jurors, and encourage them to be open-minded and flexible in their attempt to reach a verdict, as long as they can do so without compromising their honest convictions solely for the purpose of reaching a verdict. This is commonly known as “giving an Allen charge,” based on the Supreme Court’s approval of an earlier version of this instruction given in Allen v. United States, 164 U.S. 492 (1896). Note that if the trial judge elects to give an Allen charge under G.S. 15A-1235(b), he or she must give the complete instruction. See State v. Fowler, 312 N.C. 304 (1984)State v. Gillikin, 217 N.C. App. 256 (2011). A recommended version of such an instruction is found in N.C.P.I. – Crim. 101.40, and states as follows:

Your foreperson informs me that you have been unable to agree upon a verdict. You are reminded that it is your duty to do whatever you can to reach a verdict. You have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment. Each juror must decide the case for [himself] [herself], but only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, you should not hesitate to reexamine your own views and change your opinion if convinced it is erroneous. However, you should not surrender your honest conviction as to the weight or effect of the evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict. You will now resume your deliberations and continue your efforts to reach a verdict.

Practice Pointer

Don’t overdo it 
If the judge elects to give an Allen charge, the prosecutor should request that he or she give an instruction that closely follows the approved language above. If the judge’s language is too “strong,” or makes reference to improper considerations such as the burden and expense that would be caused by declaring a mistrial, the judge’s charge may be deemed unduly coercive and lead to a reversal on appeal. See, e.g., State v. May, 368 N.C. 112 (2015) (assuming it was error for trial judge to tell the jurors that “the people have so much invested in this, and we don't want to have to redo it again,” but finding that it did not rise to the level of plain error in this case since the judge also gave instructions on two other occasions “that substantially tracked the language of N.C.G.S. § 15A–1235(b)”); State v. Burroughs, 147 N.C. App. 693 (2001) (reversible error for judge to instruct the jurors that “if the jury in this trial cannot reach a unanimous verdict, in all probability the case will have to be tried before another jury of 12 citizens" which would be "very expensive to the taxpayers who pay for the court system”).

Portions of this entry were excerpted from the 2013 North Carolina Defender Manual, Volume II, Chapter 32.