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Judges may not give jury instructions that invade the jury’s authority

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Bill of Rights. (From the public domain.)

Aside from their oath of office, another reason for judges to follow the Constitution and the rest of the law in conducting trials is to avoid being overturned on appeal, only to have to try the case again. Still, each year we see criminal trial reversal after trial reversal by appellate judges faithfully keeping to their own oaths of office.

Thanks to the District of Columbia Court of Appeals for recently reversing a handgun conviction on the basis of the trial judge’s invading the jury’s province by instructing the jury that "the lack of fingerprint evidence cannot, as a matter of law, constitute reasonable doubt." The D.C. Court of Appeals ruled that such an instruction "impermissibly invaded the jury’s exclusive province to weigh the evidence as a whole against the standard of reasonable doubt, and requires reversal even under the high standard for plain error review. We also agree that the instruction that the police had ‘no duty’ to collect fingerprint evidence should not have been given in this case." The case is Wheeler v. U.S., ___ A.2d ___ (D.C. Aug. 16, 2007).

At trial it is tempting for lawyers to focus on putting the finishing touches on their closing arguments while the judge instructs the jury. However, as demonstrated by this Wheeler case, it is critical to listen to, and timely object to, the judge’s jury instructions like an eagle hawk. Otherwise, a faulty jury instruction will not be preserved for appeal, and the defendant will suffer. Jon Katz.