Closing Remarks

CR03-011.  Jury Deliberations (11/22/19).  The instructions on jury deliberations, including the requirement of unanimity, are usually given at the conclusion of the closing instructions. Note that the unanimity instruction here is a “general unanimity instruction,” which “informs the jury generally that they must agree unanimously on the verdict.” State v. Robitille, 2019 VT 36, ¶ 48. Case circumstances may dictate that a more specific unanimity instruction also be given, for instance, when there is more than one act that might support the offense charged. See id. In such cases, courts and attorneys should consider CR04-081.

CR03-021.  A Reminder About Juror Note Taking (06/18/03).  If jurors are allowed to take notes, they should be reminded that they should pay equal attention to all jurors, whether or not they have taken notes.  The concern is that a juror who has taken notes might exercise undue influence on others.

CR03-031.  Juror Recollection of the Evidence  (05/27/03).

CR03-041.  Foreperson’s Duties (09/05/02).  Although the practice varies, the committee recommends that the judge announce the appointment of the foreperson toward the end of the closing instructions.  An earlier announcement could cause unnecessary distraction.

CR03-051.  Juror Prohibitions, Including Use of Electronic Devices During Deliberations (06/20/12).  Following the suggestion of State v. Abdi, 2012 VT 4, 191 Vt. 162, the committee has established a long version of the instruction on juror prohibitions, including juror use of electronic devices, to be read at the beginning of the trial, and which may be found at CR01-031.  This shorter version is meant to be included in the final jury instructions, but some judges may wish to use the longer instruction as part of the final instructions.  Judges may also consider ordering the collection of all electronic devices from the jurors during deliberations. Courts must investigate after learning of the possibility of jury taint. State v. Kandzior, 2020 VT 37, ¶ 27 (“the failure to investigate possible jury taint and establish an evidentiary basis for determining if the jury was fair and unbiased amounts to plain error”).

CR03-061.  Dismissal During Trial of Some Charges Against Single Defendant (10/12/20).  The court may give this instruction if one or more of the original charges of which the jury was initially informed has been removed from the case, whether through plea or dismissal, and where other charges remain for the jury’s consideration. This instruction derives from State v. Sawyer, No. 197-2-18 Rdcr (Zonay, J.). Several other states and federal appellate courts have similar model instructions. See, e.g., Ariz. Pattern Jury Instr., Standard Crim. Instr. 31; Cal. Crim. Jury Instr. § 205; Third Cir. Model Crim. Jury Instructions § 2.31; 8th Cir. § 2.11; 9th Cir. § 2.14; see also 3 Sand, et al., Modern Federal Jury Instructions—Criminal ¶ 2.15 (2019 ed.) (“Dismissal of Some Charges Against Defendant”). The comment to the Third Circuit’s model instruction explains:

This instruction may be given during the trial when charges are dismissed, most likely after the close of the government’s case-in-chief. If those charges were called to the jury’s attention in the preliminary instructions or opening statements, or if evidence was introduced that relates only to those charges, the jury may expect the defendant to respond to the charges or to the evidence offered to establish the charges. This instruction explains to the jury that the charges are no longer part of the trial and thereby lets the jurors know why there will be no response to those aspects of the government’s case.

The Eighth and Ninth Circuits have also explicitly approved of such instructions in caselaw. See United States v. Kelley, 152 F.3d 881, 888–89 (8th Cir. 1998); United States v. de Cruz, 82 F.3d 856, 864–65 (9th Cir. 1996) (concluding that district court’s instruction adequately informed the jury that the dismissed counts were not before them, that defendant was on trial only for remaining counts, and that the evidence could only be considered as it related to the charged counts or as it related to defendant’s intent).

The Vermont Supreme Court has not considered whether the use of this instruction is required. The comments to the Eighth and Ninth Circuit model instructions note that this instruction should not be given unless specifically requested by the defense. A usage note accompanying the Arizona pattern instruction recommends giving this instruction both during trial (after the dismissal of charges) and again in the final instructions.