To assure a fair and impartial trial, the judge must adequately inform the jury of all essential elements of the offense charged, as well as the fact that the State must prove each element beyond a reasonable doubt.39 The judge must also instruct the jury that its verdict must be unanimous.40 Normally, a general unanimity instruction is sufficient. Where one count encompasses two or more separate incidents, either of which could support a defendant’s conviction for a particular charge, however, a more specific instruction is required.40.1 Where (1) the jury is instructed that the commission of any one of several alternative actions would subject the defendant to criminal liability, (2) the actions are conceptually different, and (3) the State has presented evidence on each of the alternatives, then the jury must be instructed that if a guilty verdict is returned, the jurors must be unanimous as to which incident they find the defendant guilty.41 This situation is most likely to occur in cases where parties are charged as principals or accomplices. There is no need for a special unanimity instruction, however, on the issue of which party was the principal and which was the accomplice.42

In capital cases, juries should be instructed about the consequences of their votes and the penalties that could result in each eventuality.43 In non-capital cases, jurors should not be instructed as to possible punishments or as to the possibility of pardon or parole. In such cases, the jury’s sole job is to establish guilt or innocence. Such information runs the risk of a compromise verdict, since the jury may believe that other government authorities will review the case and correct any mistakes they made. Further, the jury may be tempted to compensate in its verdict for possible leniency or early prison release.44

If the court finds that a defendant has presented evidence that a reasonable juror might find sufficient to negate the existence of any element of the charged offense, the defendant is entitled to an instruction that the jury must consider whether the evidence raises a reasonable doubt as to the defendant’s guilt.45 Similarly, if some credible evidence supporting any defense is presented, the defendant is entitled to a jury instruction that the defendant must be acquitted if the jury finds that the evidence raises a reasonable doubt as to the defendant’s guilt.46 A defendant is not entitled to such an instruction absent credible evidence establishing the existence of each element of such defense.47 As to the claim of alibi, which is not an affirmative defense but only a denial of any connection with a crime, if the judge is satisfied that there is some credible evidence showing that the defendant was elsewhere when the crime occurred, the judge, upon request of the defendant, should instruct the jury that the defense of alibi is recognized under Delaware law, that the defendant contends that he or she was somewhere else other than the place that the crime is alleged to have been committed when it is alleged to have been committed, and that if the evidence on this point raises a reasonable doubt as to the defendant’s guilt, the jurors should give the defendant the benefit of the doubt and return a verdict of not guilty. Any doubt should be resolved in favor of giving the instruction. On the other hand, if there is substantial evidence supporting the alibi, such an instruction should be given even if there is no request.48 As to the defense of “guilty but mentally ill,”49 if the evidence warrants it, the judge should give an instruction regardless of the wishes of the defendant. 50

In instructing the jury as to any crime, when there is a rational basis in the evidence to support a jury verdict convicting the defendant of the lesser crime rather than the indicted crime, the jury should be instructed as to any included lesser offenses and should be instructed that it may convict as to the lesser included offense only.51 This is because of a concern that a jury, given a choice between guilt of a greater offense and not guilty, might, through inadvertence or misunderstanding, be led to convict for the greater offense.52 If, however, the definition of a lesser crime requires proof of an element not required for proof of the charged crime, it is not truly a lesser included offense, and the court may not instruct the jury on such purported lesser offense.53 The burden is on defense counsel to request a lesser included offense instruction, as it is counsel that determines trial tactics and presumably acts in accordance with a formulated strategy.54

When the State relies on a legal presumption,55 a defendant is entitled to an instruction clearly explaining that such presumption allows nothing more than a permissible inference.56 If a witness was granted immunity from prosecution in return for testimony on behalf of the State, a defendant, upon request, is entitled to a jury instruction to that effect. The failure to give such an instruction, however, may not be prejudicial if that fact is otherwise made clear at trial.57

When the State’s case is based entirely or substantially on circumstantial evidence, the trial judge must instruct the jury about that type of evidence. Such an instruction is not required, however, where intent is the only element not proved by direct testimony.58

If it is established that the State is responsible for the loss of material evidence, a defendant may be entitled to an instruction that the failure to preserve such evidence permits the jury to infer that the missing evidence would not have incriminated the defendant and would have tended to prove that the defendant was not guilty.59 In determining whether such an instruction is justified, courts consider (1) the degree of negligence or bad faith involved, (2) the importance of the missing evidence considering the probative value and reliability of secondary or substitute evidence that remains available, and (3) the sufficiency of the other evidence produced at the trial to sustain the conviction.59.1

Similarly, if the State fails to produce a witness under circumstances where it (i) has the power to produce the witness, and (ii) it would be natural for the party to produce the witness if his or her testimony would be favorable, and the State does not provide an adequate explanation why it did not produce the witness at trial, a defendant is entitled to an instruction that the testimony of the missing witness would not have incriminated the defendant and would have tended to prove that the defendant was not guilty.59.2

39. 11 Del. C. § 302(a); Taylor v. State, 464 A.2d 897, 899 (Del. 1983).

40. Probst v. State, 547 A.2d 114, 120-22 (Del. 1988); Fountain v. State, 275 A.2d 251, 252 (Del. 1971).

40.1. Ayers v. State, 844 A.2d 304, 308 (Del. 2004).

41. Pierce v. State, 911 A.2d 793, 798 (Del. 2006); Stevenson v. State, 709 A.2d 619, 634 (Del.1998); Liu v. State, 628 A.2d 1376, 1386-87 (Del. 1993); Probst v. State, 547 A.2d 114, 120-23 (Del. 1988).

42. Pope v. State, 632 A.2d 73, 79 (Del. 1993); Zimmerman v. State, 565 A.2d 887 (Del. 1989); Probst v. State, 547 A.2d 114, 123 (Del. 1988)

43. Whalen v. State, 492 A.2d 552, 562 (Del. 1985).

44. Rush v. State, 491 A.2d 439, 446 (Del. 1985); Kauffman v. State, 452 A.2d 945, 947 (Del. 1982); Stewart v. State, 437 A.2d 153, 157 (Del. 1981); Hand v. State, 354 A.2d 140, 141 (Del. 1976); Garrett v. State, 320 A.2d 745, 749-50 (Del. 1974).

45. 11 Del. C. § 302(b).

46. 11 Del. C. § 303(c).

47. 11 Del. C. § 303(a), (b); Fetters v. State, 436 A.2d 796, 797 (Del. 1981); Gardner v. State, 397 A.2d 1372, 1373 (Del. 1979); Ward v. State, 366 A.2d 1194, 1196 (Del. 1976); Dobrosielski v. State, 311 A.2d 875, 877 (Del. 1973); Thompson v. State, 174 A.2d 141, 143 (Del. 1961).

48. Gardner v. State, 397 A.2d 1372, 1374 (Del. 1979); Jackson v. State, 374 A.2d 1, 2 (Del. 1977).

49. See 11 Del. C. § 3905.

50. Daniels v. State, 538 A.2d 1104, 1111 (Del. 1988).

51. 11 Del. C. § 206(a); Chao v. State, 604 A.2d 1351, 1357 (Del. 1992); Ward v. State, 575 A.2d 1156, 1159 (Del. 1990); Bailey v. State, 521 A.2d 1069, 1093 (Del. 1987); Gates v. State, 424 A.2d 18, 21 (Del. 1980).

52. Gates v. State, 424 A.2d 18 (Del. 1980).

53. 11 Del. C. § 206(b); Ward v. State, 575 A.2d 1156, 1158 (Del. 1990).

54. Chao v. State, 604 A.2d 1351 (Del. 1992).

55. See ch. 10 for a discussion of presumptions.

56. Hall v. State, 473 A.2d 352, 355 (Del. 1984).

57. Shockley v. State, 269 A.2d 778, 782 (Del. 1970).

58. Brown v. State, 233 A.2d 445, 447 (Del. 1967). For a discussion of circumstantial evidence, see § 20:1.

59. McNair v. State, 990 A.2d 398, 400 n.1 (Del. 2010); Cook v. State, 728 A.2d 1173, 1175 (Del. 1999); Lunnon v. State, 710 A.2d 197, 199 (Del. 1998); Lolly v. State, 611 A.2d 956, 961-62 & n.6 (Del. 1992).

59.1. Hendricks v. State, 871 A.2d 1118, 1124 (Del. 2005); Hammond v. State, 569 A.2d 81, 85 (Del.1989).

59.2. Demby v. State, 744 A.2d 976, 978-79 (Del. 2000); Wheatley v. State, 465 A.2d 1110, 111 (Del. 1993).

© 2010  David L. Finger