Delaware Trial Handbook § 25:11. MANNER OF INSTRUCTING THE JURY

Jury instructions must be read aloud to the jury in open court.79 In civil cases, the court must instruct the jury after the closing arguments are completed and at such other times, including prior to the introduction of evidence, as the court may desire.80 In criminal cases, the court may instruct the jury before or after arguments are completed or at both times.81

The order in which individual instructions are given is within the discretion of the trial court.82 Each judge will have his or her own preferred method of ordering the instructions. The following describes a standard pattern of instruction which may vary according to the needs of the case and the preference of the judge. A judge will usually begin with an introductory statement informing the jurors of the judge’s obligation to instruct the jurors on the law and the purpose of the instructions, i.e., to provide rules for the jury to apply in establishing guilt or innocence in a criminal case or liability and damages or non-liability in a civil case. The judge will instruct the jurors that they should consider the instructions as a whole and should not place undue emphasis on any particular part. The judge will also inform the jury that the law does not permit the court to comment upon the evidence,83 and that the instructions should not be viewed as a comment by the court on the facts or as to which party the verdict should favor.

The judge will then inform the jurors about their rights and duties in deciding the credibility of the witnesses and the weight of the evidence, as well as their rights and duties in reconciling any conflicting testimony.84 If expert testimony has been admitted, the judge will explain the function of expert testimony85 and the jurors’ rights and duties in weighing such testimony.86

The judge may next state the claims of the parties in a civil case or the charges brought against an accused in a criminal case. This is followed by a statement of the applicable burdens of proof87 and, in a criminal case, the fact that the defendant is presumed innocent.88 Following that will be a statement of the substantive law as it relates in a civil case to the claims, counterclaims and defenses raised or, in a criminal case, to the charges brought by the State and to any defenses raised by the accused as to which the judge has determined the accused is entitled to an instruction.89 In a civil case, the jury will also be instructed on the factors it may consider in awarding damages if liability is established.90

If circumstantial evidence has been introduced at trial, the judge may instruct the jury as to the nature and effect of such evidence.91 If the parties have stipulated that certain facts are undisputed, the court may so inform the jury. If a legal presumption has been relied upon by one or more parties, the court may instruct the jury as to the nature and effect of presumptions.92 If a party has established a fact through the device of obtaining judicial notice, the court may instruct the jury as to the establishment of that fact.93

The judge may instruct the jurors not to allow bias, sympathy or the consequence of their verdict to influence their deliberations, and that the jury should seek to do justice and should deliberate with a desire to declare the proper verdict. The judge may encourage each juror to deliberate with an open mind and to share freely his or her thoughts with the other jurors before committing to a particular position. The judge will instruct the jurors that their verdict must be unanimous.93.1 The judge may also encourage the jurors to try to reach agreement and that a juror should not hesitate to change his or her mind when persuaded by others, but should not give up any opinion that a juror continues to be convinced is correct.94

The judge will instruct the jurors that if they have any questions or requests during their deliberations, they should put it in writing and give it to the bailiff, who will deliver it to the judge. The judge will then confer with counsel and respond as promptly as possible.

The jurors will be instructed that they may not discuss the case with anyone during any recesses in deliberations and that all discussions about the case must take place in the jury room with all jurors present.

Finally, the judge will instruct the jurors to notify the bailiff when they have reached a verdict. When that happens, they jury will return to the courtroom, and the foreperson, i.e., the juror who occupies chair #1, will announce the jury’s verdict.

In capital criminal cases, the court must give the jury a written copy of the instructions for use during deliberations.95 In non-capital criminal cases and in civil cases, it is discretionary with the court whether to give the jury a written copy of the instructions.96  Any risk that the judge will misread  or the jurors will misunderstand the instructions can be cured by providing the jury with a copy of the instructions and telling them to review the instructions.97 If the court provides the jurors with the written instructions, it should also tell the jurors that the instructions are not evidence and that their submission is made only to assist them in recalling the instructions given in open court.98

79. Super. Ct. Cr. R. 30; Comm. Pls. Ct. Cr. R 30(b).

80. Super. Ct. Civ. R. 51.

81. Super. Ct. Cr. R. 30; Comm. Pls. Ct. Cr. R. 30(a).

82. Franklin v. Salminen, 222 A.2d 261, 263 (Del. 1966).

83. See § 25:3.

84. See § 26:6.

85. See § 18:1.

86. See § 26:6.

87. See ch. 9.

88. See § 10:2.

89. See § 25:5.

90. See ch. 22.

91. See § 20:1.

92. See ch. 10.

93. See ch. 11.

93.1. See §§ 27:2-3.

94. See § 27:6.

95. Super. Ct. Cr. R. 30.

96. Super. Ct. Cr. R. 30; Wyatt v. Moore, C.A. No. 89C-JL-12, slip op. at 4, Ridgely, J. (Del. Super. Aug. 26, 1992).

97. Sirmans v. Penn, 588 A.2d 1103, 1105-06 (Del. 1991).

98. Wyatt v. Moore, C.A. No. 89C-JL-12, slip op. at 4, Ridgely, J. (Del. Super. Aug. 26, 1992).

© 2010  David L. Finger