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Jury Instructions: Prep Work for Criminal Defense Lawyers in Georgia and Elsewhere

Kish Law LLC

I am a criminal defense attorney in Atlanta, and readers know I also handle state cases throughout Georgia and in federal criminal cases all over the country.  One of today’s tasks is to work on Jury Instructions for an upcoming case in another part of Georgia.  My client, a businesswoman, is accused of some serious crimes that arose out of an event that ended very badly.  She says she did not engage in the crimes she is accused of, and because the District Attorney is not being reasonable, we pretty much have no other choice than to go to trial and put her case in front of a jury.

Many clients are not always aware of the various tasks and prep work that are required when a criminal defense lawyer is preparing for a trial.  Obviously, the lawyer needs to do his or her homework on the facts, find out what the witnesses will say, and develop methods for attacking the witnesses for the prosecution.  The lawyer sometimes also needs to prepare his or her own witnesses.  One of the biggest tasks is counseling the accused person on whether he or she should, or should not, testify in their own defense.  The final decision on whether the Defendant should testify is completely up to the client, the lawyer can merely provide advice.  However, this often is the biggest single decision in a case, and good defense counsel always put a lot of work and thought into providing this advice to their clients.

Today, I am also working on a less well-known aspect of trial preparation: proposed jury instructions.   Some of you may know that when the evidence is finished in a criminal case, the Judge has to tell the jury his or her “instructions” or what is sometimes called the “jury charge.”  These are basically the rules that the jury has to follow when deciding if the prosecutor has met the burden of proving that the Defendant is guilty of the charges beyond a reasonable doubt.

Most jurisdictions, such as the State of Georgia and the Federal Courts, have “pattern” or “standard” jury instructions.  These have been developed by judges and experienced practitioners for use in the more common and run-of-the-mill case.  These standard charges cover areas such as how the jury acts, the rules for considering evidence, burdens of proof, and specific rules for deciding if certain crimes have been proven.  The standard instructions also cover some defenses, like alibi, mental illness or self-defense.

Most judges want each side to propose jury instructions.  Toward the end of the case, the Judge will usually have a conference with the attorneys, and may hear some arguments about which charges he or she will, or will not, actually use with the jury.  The are two main reasons this is often a crucial part of the case.  First, I usually want the Judge to give the rules that are more favorable to the defense. Second, when the Judge refuses to give an instruction that is proper and a correct statement of the law, that refusal is often an issue I can bring up on appeal if my client is convicted.  “Bad” jury instructions are one of the most common errors that get a conviction reversed by the Court of Appeals.  For these two reasons, I usually try to put significant effort into the proposed jury instructions that I file when getting ready for a trial.

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