About the Instructions

The Vermont Model Criminal Jury Instructions have been developed by a committee that began meeting in 2001.  The original members were District Court Judge Paul F. Hudson and Attorneys Dan M. Davis, Matthew I. Levine, Kathleen M. Moore, and Thomas A. Zonay, with Judson D. Burnham serving as the reporter.  The current members of the committee are:

  • Hon. Kevin W. Griffin
  • Tracy Kelly Shriver, Esq.
  • Mary Kay Lanthier, Esq.
  • Allison N. Fulcher, Esq.
  • Dickson Corbett, Esq.

Michael Csere  serves as committee reporter, and Judson D. Burnham serves as reporter emeritus.  The committee meets roughly twice per year, and the goal is to produce and maintain a set of model jury instructions that can be used as building blocks to construct jury instructions for criminal trials in the State of Vermont.

It is important to note that the instructions have not been approved by the Vermont Supreme CourtThey are not pattern instructions, either in the sense that their use is required, or in the sense that they will be considered “bullet proof” on appeal.  Judges and attorneys should instead view the instructions and reporter’s notes as a starting point and a resource to be used in the furtherance of justice.  It is expected that the instructions will be tailored to fit the facts of each individual case before they are given to the jury.

General Concepts Guiding the Committee’s Work

 The committee started with a common understanding of the fundamental principles.  First, we all have a healthy respect for the law.  One primary goal is to provide an accurate statement of the law.  We have tried to state the law in a clear way, so that jurors can understand it, but we are not acting as advocates for substantive changes in the law.  When there are disagreements within the committee, we refer directly to the statutes or to the Supreme Court cases that have interpreted the statutes.  If there are issues that remain unclear, we might provide some discussion about it in the notes, but in the instructions themselves we have tried to follow the law as we know it.

Second, we all recognize that brevity is a virtue.  The committee members are all experienced practitioners who recognize the advantages of brief instructions.  We are also reasonably well versed in the English language, although we can’t claim to have particular expertise in linguistics, or even in the use of “plain language.”  We don’t go over the instructions with a fine-toothed comb, but in many instances we have simplified old instructions by changing words that are archaic or imprecise.  We have also shortened the instructions by eliminating a lot of needless repetition.  Little by little, the instructions have become shorter, simpler, and easier to understand.

Finally, there is some tension between a desire to have instructions that are ready to use, and a desire to have instructions that are tailored to the circumstances of each particular case.  The model instructions attempt to accommodate both of these interests, in many ways.  Although these model instructions can be used as building blocks to construct a complete set of instructions, they also require the judge to go through the intellectual exercise of tailoring the instructions to fit the case.

Specific Concepts Guiding the Committee’s Work 

First, the committee recognizes that there are problems, and potential prejudice, associated with the use of generic terms such as “the defendant” or “the victim.”  The model instructions encourage the use of actual names, by providing clearly identified spaces for the names, such as (Def)_______________ or (victim)_______________.  It is a simple matter to fill in the names, and the advantages are well worth the effort.  See, e.g., State v. Wigg, 2005 VT 91, 179 Vt. 65 (where the commission of a crime is in dispute and the core issue is credibility, it is error for a trial court to permit a police detective to refer to the complainant as the “victim”).

Second, the model instructions encourage the use of specific instructions when specific acts are charged.  In many places the statement of the elements will include a space for specific acts.  (e.g. “(Def)__________ caused bodily injury to (victim)__________, by (specific acts)__________.”) Generally the discussion of the elements will also include a sentence providing for a statement of the specific allegations, as follows: “Here the State alleges that (Def)__________ caused bodily injury to (victim)__________, by (specific acts)__________.”  The committee recognizes that prosecutors do not always allege specific acts, and that a statement of the specific acts is not always required under the law.  However, when the information does charge specific acts, it is helpful to the jurors to remind them of the specific acts that are charged.

Third, many of the model instructions include bracketed material.  Generally this means that the bracketed instruction will be appropriate for some trials but not for others.  For example, the homicide instructions contain bracketed material giving additional instructions on the meaning of “unlawful killing.”  If the unlawfulness of the killing is not an issue in the case, then it is better to give the shorter instruction.  If the unlawfulness of the killing is in dispute, then the attorneys might want to request the longer instruction.  Furthermore, any time the facts of a case require elaboration on a particular issue, the attorneys should feel free to request additional elaboration in the instructions.  The model instructions are not intended to cover every situation.

In other instances, the brackets indicate a choice, such as a choice between one of several mental states defined by the statute.  The model instructions contemplate that the State will elect to charge one of the choices, and that the instructions will be tailored to reflect the State’s election.  The court can simply strike out the choices that don’t apply.

Fourth, whenever possible, the definitions used in the instructions are taken from the statutes.  In many instances, however, the committee was faced with defining words that are not clearly defined under Vermont law.  Often it was helpful to consult Black’s Law Dictionary or Webster’s New Collegiate Dictionary.  Sometimes we drafted our own definitions, to describe our own understanding of what the words mean within the context.  At other times we simply left the words undefined in the instruction.  In many instances, we left words undefined because we thought that jurors would already have a sufficient understanding of the words.  For example, in most cases it is not necessary to define causation, because most jurors will already understand what it means.

 Preferences that have Emerged from Committee Work

 The committee has developed numerous specific preferences, the reasons for which were all discussed at length.  Some of those ideas are as follows:

   1.  In stating the charge, it is preferable to read the charge as it appears in the information, and not to try to paraphrase the applicable statute.  In the past, many jury instructions have quoted from the statute, or paraphrased from the statute, because that seems like a natural place to start.  However, quoting from the statute can be confusing to the jury, because the quotation might well refer to concepts that do not appear as part of the state’s charge.  Therefore it is preferable to stick with the charge, and not to provide a general explanation of the statute.

  2.  Both in the elements, and in the explanation of the elements, it is helpful to name the specific acts underlying the charge.  There may be cases where the state declines to specify the alleged acts, but usually it is helpful to explain the charge by including a description of the alleged specific acts.  The committee believes it is generally preferable for the state to allege the specific acts underlying the charge, and for the court to include the allegations in the jury instructions.

  3.  The model instructions consistently list the first essential element as the identity of (Def)__________ as the person who committed the crime charged.  The committee concluded that it is helpful to start each instruction in this way, even though the significance of this element might vary greatly from one case to the next.  If there is a significant issue over identity, it might also be appropriate to give a more elaborate instruction.  Note that if the defendant is charged as an accomplice, the jury still must find that the defendant is the person who committed the crime charged, but the “crime charged” might require consideration of acts committed by others.

  4.  The committee has tried to be consistent about referring to essential elements as “essential elements,” whereas there may be instances where the word “elements” is used in a different way.

  5.  The committee does not make repeated references to the requirement of proof beyond a reasonable doubt.  The committee’s view is that it is important to try to keep the instructions short.  As long as the burden of proof is stated in a clear way, there is no need to repeat it several times.  Of course, the attorneys are free to emphasize the burden of proof in their final arguments.

General Notes Concerning Legal Sufficiency of Jury Instructions

  1.  It is “the duty of the trial court to instruct the jury on all material issues raised by the evidence and the pertinent law. . . .  The charge to the jury must be full, fair and correct on all issues, theories and claims within the pleadings.”  State v. McLaren, 135 Vt. 291, 296 (1977).

 2.  The defendant is entitled to instructions appropriate to the case made by his or her evidence.  The court has a duty to present the issues to the jury squarely, even in the absence of a request, “for it is always the duty of the court to charge fully and correctly upon each point indicated by the evidence, material to a decision of the case, whether requested or not.”  State v. Brisson, 119 Vt. 48, 53 (1955); see also State v. Gokey, 136 Vt. 33, 36 (1978) (The court must charge “fully and correctly upon each point indicated by the evidence [and] material to a decision of the case.”).

 3.  However, a party excepting to the court’s instructions must “fairly and reasonably indicate to the court the particulars in which such instructions [are] claimed to be in error, or sufficiently apprise the court of the specific instruction he [or she] desire[s] on the subject matter.”  State v. Crosby, 124 Vt. 294, 297 (1964).

 4.  Moreover, under the “invited error doctrine,” a party cannot “induc[e] an erroneous ruling” as to a jury instruction “and later seek[ ] to profit from the legal consequences of having the ruling set aside.” State v. Morse, 2019 VT 58, ¶ 7 (quotation omitted) (defendant waived challenge to instruction by agreeing during trial court proceedings that proposed charge was an accurate statement of the law).

5.   The court has discretion to tailor the wording of the jury instructions to fit the circumstances at hand: “Within the parameters of the law, the trial court may exercise its discretion in the wording of the jury charge.” State v. Snow, 2013 VT 19, ¶ 8, 193 Vt. 390.

6.  “In charging the jury, the trial court ‘has a duty to avoid confusing the issues by “over definition,” particularly when the word in question is one of plain meaning and may well be understood by its context.’” State v. Dow, 2016 VT 91, ¶ 16, 202 Vt. 616 (quoting State v. Audette, 128 Vt. 374, 378 (1970). “Therefore, the court ‘may decline to enlarge upon or redefine a phrase or a term whose meaning may be taken to be plain and of common understanding.’” Id. (quoting Audette, 128 Vt. at 379).