Delaware Trial Handbook § 25:6. REQUESTING INSTRUCTIONS

Although the trial judge has the responsibility to instruct the jury; it is the parties’ responsibility to bring to the trial judge’s attention the instructions they consider appropriate and the reasons why.59.3 At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the request.60  Copies of requested instructions must be given to all parties. As a general rule, parties should submit specific written requests for jury instructions in order to present their contentions to the trial court and to preserve those contentions for a possible appeal.61

Parties are entitled to instructions on their theories of the case, provided the instructions are timely requested, supported by evidence and correctly state the law.62 The test for obtaining an instruction of this character is whether there is evidence to support a jury verdict under the particular instructions sought.63 A judge may reject a proposed instruction if the court determines that it is unsupported by or inapplicable to the facts presented at trial.64 The decision as to whether a litigant has produced sufficient evidence to warrant a requested instruction is a matter within the sound discretion of the trial court.65

Apart from and in addition to the above, a trial court must give instructions to a jury as required by evidence and law whether the parties request the instruction or not.65.1 Indeed, the trial judge is charged with the responsibility for instructing the jury. This is not controlled by the parties as their function and duty is to bring to the court’s attention the instructions they consider applicable and the reasons why they should be given.65.2

One exception to this rule is that a party in a criminal case who seeks inclusion of an instruction regarding a less-included offense must affirmatively request it, and a judge may not add such an instruction sua sponte.65.3 When asked by a criminal defendant to give a jury instruction on a lesser included offense in a criminal case, the trial court must determine: (1) that the defense or lesser included offense for which the instruction is requested could apply as a matter of law; (2) that the evidence presented meets the statutory requirements to entitle the defendant to the requested instruction; and (3) whether the particular form, content, or language of the instruction proposed by the defendant represents a correct statement of the law.65.4

On request of the jury after submission of the cause, a trial court has power in open court to give additional instructions. The decision whether to give the jury a supplemental instruction is within the discretion of the trial court.65.5

59.3. Beebe Medical Center, Inc. v. Bailey, 913 A.2d 543, 556 (Del. 2006); Bullock v. State, 775 A.2d 1043, 1047 (Del. 2001).

60. Super. Ct. Civ. R. 51; Super. Ct. Cr. R. 30; Comm. Pls. Ct. Cr. R. 30.

61. Zimmerman v. State, 565 A.2d 887, 890 (Del. 1989).

62. Manlove v. State, 901 A.2d 1284, 1290 (Del. 2006); Zimmerman v. State, 565 A.2d 887, 890 (Del. 1989).

63. Derrickson v. State, 321 A.2d 497, 501 (Del. 1974).

64. Johnson v. State, 550 A.2d 903, 907 (Del. 1988); Thompson v. State, 174 A.2d 141, 143 (Del. 1961); State v. Benton, 187 A. 609, 613 (Del. O. & T. 1937).

65. McNally v. Eckman, 466 A.2d 363, 370 (Del. 1983).

65.1. Bullock v. State, 775 A.2d 1043, 1047 (Del. 2001); Zimmerman v. State, Del.Supr., 565 A.2d 887, 891 (1989).

65.2. Bullock v. State, 775 A.2d 1043, 1047 (Del. 2001).

65.3. Ramsey v. State, 996 A.2d 782, 785 (Del. 2010); State v. Brower, 971 A.2d 102, 108 (Del. 2009); Wiggins v. State, 902 A.2d 1110, 1112-12 (Del. 2006); State v. Cox, 851 A.2d 1269, 1274 (Del. 2003).

65.4. Hignutt v. State, 958 A.2d 863, 868 (Del. 2008); Wright v. State, 953 A.2d 144, 147 (Del. 2008); Cseh v. State, 947 A.2d 1112, 1113-14 (Del. 2008); Wright v. State, 953 A.2d 144 (Del. 2008).

65.5. Sammons v. Doctors for Emergency Services, P.A., 913 A.2d 519, 540 (Del. 2006).

© 2010  David L. Finger