Massachusetts District Attorneys Association the massachusetts prosecutors’ manual: domestic violence & sexual assault

7.13.JURY INSTRUCTIONS

1. Standard Model Jury Instructions

The judge must instruct the jury clearly and correctly as to the law applicable to the issues in the case. Commonwealth v. Corcione, 364 Mass. 611 (1974). As long as the judge gives adequate and clear instructions on the applicable law, the judge has discretion as to the phraseology, method, and extent of the charge, including whether to instruct the jury generally or specifically, and whether to utilize his or her own words or the words of the party making the request. Commonwealth v. Williams, 388 Mass. 846, 857 (1983).

In composing the charge to the jury, judges most often turn to model jury instructions, or to their own files of charges they have used in the past. In addition to the book Model Jury Instructions for Use in the District Court, compiled by the District Court Committee on Juries of Six, and produced by MCLE, judges often consult “Criminal Jury Instructions,” compiled by Theresa Finn, SJC Chief Law Clerk, 1994-1995, and Maria Pena, SJC Deputy Chief Law Clerk, 1994-1995, which was distributed to all Superior Court Judges in April of 1995. Review the model instructions for the charges in your case (and as mentioned above, try to incorporate key phrases into your closing).
Copies of the model instructions for rape, aggravated rape, and assault with intent to rape from “Criminal Jury Instructions” are included in the appendices, section 9.6.1
However, judges are not supposed to rely on “boilerplate” charges alone: “A collection of accurate, impartial, and understandable pattern jury instructions should be available ... Counsel and the court should nonetheless remain responsible for ensuring that the jury is adequately instructed as dictated by the needs of the individual case, and to that end should modify and supplement the pattern instructions whenever necessary.” ABA Standards for Criminal Justice, Trial by Jury, § 15-3.6(b) (2d ed. 1980).
And while the judge’s discretion is wide, the judge may not refuse an instruction because he or she disbelieves the evidence on which the request is based, Commonwealth v. Robinson, 382 Mass. 189, 200 (1981); nor may a judge array the facts with a bias and so in effect “comment” on the evidence and convey a personal view of where the weight of the evidence lies. Commonwealth v. Harris, 376 Mass. 201, 208 (1978). A judge may refuse an instruction based on facts which the jury would not be warranted in finding on the evidence. See Commonwealth v. Lacasse, 1 Mass. App. Ct. 590, 599 (1973).

2. Supplemental charges

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  In certain circumstances you should press for instructions on issues favorable to your case, e.g.:
  

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  no adverse inference from a witness (the victim) not testifying
  
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  voluntary consumption of drugs or alcohol does not justify or excuse a criminal act. Commonwealth v. Sama, 411 Mass. 293, 299 n.3 (1991)
  

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  In other circumstances you should insure that a specific instruction has been given in order to prevent a successful appeal on grounds of an improper or inadequate charge, e.g.:
  

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  if the judge allows you to admit evidence of the defendant’s prior bad acts and the hostile relationship between the defendant and the victim, proper limiting instructions should be given so the jury understands the limited purposes for which the evidence is being introduced (motive, state of mind, pattern of conduct, absence of innocent intent or accident, etc.)
  
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  the corroborative, non-substantive nature of first complaint testimony
  

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  Other circumstances will require philosophical or tactical considerations on your part, e.g.:
  

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  whether to ask for instructions on lesser included offense(s). Some ADAs seek to avoid a “smorgasbord” prosecution, and do not want the jury presented with numerous factual possibilities and various lesser included offenses. They feel the jury is better focused, and the case is stronger, if the judge’s charge covers the crimes as they appear in the complaint/indictment.
  

One crime is a lesser included offense of another if it does not require proof of an additional fact that the other does not. Commonwealth v. Gliniewicz, 398 Mass. 744 (1986). While an attempt is a lesser included offense of all substantive offenses, Commonwealth v. Gosselin, 365 Mass. 116, 120-121 (1974), the defendant may be convicted of attempt as a lesser included offense only if the complaint alleges some overt act constituting the attempt.

3. Submitting Proposed Jury Instructions
Your best chance of insuring that the judge chooses the instructions which you feel clearly articulate the legal standards and fit the facts of your case is to submit a proposed charge in its entirety.

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  Prepare your proposed charge before the trial starts, as you may be too busy the night before closing arguments to turn you attention to such matters, and the judge will usually ask for any input counsel wishes to offer immediately after closing arguments.
  
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  Keep it as simple as possible: don’t be redundant or duplicitous.
  
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  Choose clear, simple language that the jury can understand, and hopefully, retain.
  
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  Use language from the Model Instructions. See infra section 9.6, Appendices to Trial Strategies
  

8.POST-CONVICTION

8.1. THE RIGHT TO BE HEARD

1. The Victim

Pursuant to the Victim Bill of Rights, Mass. Gen. Laws ch. 258B, victims are entitled to confer with the prosecutor before a sentencing recommendation, to confer with the probation officer prior to the filing of the presentence report, to request that restitution be a part of the final disposition, and to be heard through oral and written victim impact statements. In addition, victims have the right to be notified of the scheduling for sentencing, the right to be present at sentencing, the right to be informed of the final disposition of the case, the right to be informed of the defendant’s parole eligibility and status, the right to be informed when the defendant is released, moved or has escaped, and the right to be informed of any possibility to pursue a civil action for damages relating to the crime. (For a complete summary of the Victim Bill of Rights, see Section 2.3, supra.) These rights to participate and be heard, and to be notified, apply to all types of sentencing hearings: admission to sufficient facts, change of plea, sentencing after a guilty verdict, and probation revocation.

2. The Defendant

Pursuant to Mass. R. Crim. P. 28(b), “[b]efore imposing sentence the court shall afford the defendant or his counsel an opportunity to speak on behalf of the defendant and to present any information in mitigation of punishment. Apart from this rule, there is no constitutional or other right of allocution.” Commonwealth v. Whitford, 16 Mass. App. Ct. 448, 454 n.4 (1983). Rule 28(b) requires the judge only to afford either the defendant or defense counsel the opportunity to speak, and the judge need not permit the defendant to speak in his or her own behalf when counsel has already done so. Commonwealth v. Rosadilla-Gonzalez, 20 Mass. App. Ct. 407, 415-16 (1985).

3. The Commonwealth

The prosecutor should also be permitted to present argument on the relevance and accuracy of any evidence or information presented to the sentencing court, and should have the opportunity to address the court on the type of sanction and the level of severity of sanction appropriate to the sentence determination. ABA Standards for Criminal Justice, Sentencing § 18-5.17 (3d ed. 1994).