West Virginia Homicide Jury Instructions Project Professor James R. Elkins & Students at the
West Virginia
University College of Law [Spring][2006]
















































































































I. Advanced Criminal Law: The Course and How It Came to Be Offered

Advanced Criminal Law will focus on the revision of jury instructions used in homicide cases in West Virginia. The case grew out of my teaching the first year Criminal Law course. In the first weeks of that course--where I focus on homicide cases--we find in Joshua Dressler's criminal law casebook -- [Joshua Dressler, Cases and Materials on Criminal Law 245-247 (Thomson/West, 3rd ed., 2003)] -- the case of State v. Schrader, 172 W.Va. 1, 302 S.E. 2d 70, the 1982 case in which the West Virginia Supreme Court (in an opinion by former Justice Neely, now a Charleston lawyer) set about to define out of existence, the element of premeditation and deliberation in 1st degree murder cases. [Schrader, in Dressler's 4th edition, 2007, has been relegated to a footnote.] My first reaction on reading State v. Schrader was one of utter amazement. Who could imagine, after several hundred years of court decisions numbering in the many thousands dealing with 1st degree murder cases that we still find a court struggling to "define" one of the basic--the basic?--elements of 1st degree murder. Is one to be encouraged by the fact that we (in law) are still trying to get it right? Or, discouraged in that we still don't know exactly what we doing after all these years?

Dressler, in a note following State v. Schrader, pointed out that "In State v. Guthrie, 194 W.Va. 657, 461 S.E. 2d 163 (1995), the Supreme Court of Appeals of West Virginia looked again at the wilful-deliberation-premeditation formula." (Dressler, 3rd ed., at 248).

So, it was my focus on homicide cases in the Criminal Law course, and the good fortune to find in Dressler's casebook, the use of these West Virginia cases on premeditation and delibration that first called my attention to the following: 1) the way that law is always in a process of "defining" itself, and 2) that this process of "definition" is most obvious (outside statute-making and legislation) in the appellate review of jury instructions. It took several years to realize that before we get to the appellate review of jury instructions--an important but infertile grounds for appeal in criminal cases (criminal convictions are overturned on the basis of erroneous jury instructions, or the failure of a trial court judge to give a requested jury instruction, rather begrudingly by appellate courts)--there is this bed-rock enterprise of law being communicated to the jury by way of jury instructions. Jurors may, in an era in which popular culture is awash in law and lawyers (TV dramas, John Grisham legal thrillers, Hollywood movies, CourtTV, coverage of law/lawyers/ trials in mainstream/established newspapers like the New York Times and the Wall Street Journal) know a great deal about law, but we persist in the notion that the only law (beyond their sense of justice, however derived) that jurors should use to decide the guilt or innocence of a defendant charged with a crime is the law "told" to them by a judge. One commentator makes the point as follows: "A jury trial is . . . a rigidly controlled decisionmaking process. Evidence is presented in a structured format, and the jury is instructed to ignore every else." [Harvey S. Perlman, Pattern Jury Instructions: The Application of Social Science Research, 65 Neb. L. Rev. 520, 524-25 (1986)]

Of course, throughout a trial, prosecutors and defense lawyers "tell" jurors the law, but their talk about law is often muted and disguised. It is less muted and disguised in opening and closing arguments by the lawyers, but even in these phases of the trial "the law" is so thoroughly interwoven with the lawyers' arguments (and the expected slant/tilt/spin of these arguments), that we do not expect a prosecutor or a defense lawyer to present "the law" in unaltered, unadulterated, untainted form. Lawyers, prosecution and defense alike, are advocates, and as advocates they are always--well, almost always--presenting (at trial) putting "the law" to use to achieve particular results.

II. Jury Instructions and Their Place/Role in a Criminal Trial

Generally, a trial court must clearly present the law of the case to the jurors and instruct them on all applicable law that they are to rely on in reaching their decision. Jury instructions must, therefore, include all the elements of the charged offenses and any material issues, defenses, and theories that are supported by the evidence. A trial court must instruct, even without a request, on the general principles of law that relate to the issues the evidence presents. 

III. History of Jury Instructions

The following history of jury instructions is from Harvey S. Perlman, Pattern Jury Instructions: The Application of Social Science Research, 65 Neb. L. Rev. 520, 526-528 (1986):

Prior to the fifteenth century, jurors knew the facts of the events they judged and excercised broad decisionmaking discretion. Judges exercised control over juries through the method of "attaint," a system of calling a second jury to review the verdict of the first. If the second jury disagreed with the first jury's decision, the members of the first jury were subject to severe punishment.

The fifteenth century jury evolved into [a] . . . detached decisionmaking body that resolved disputes based on the evidence at trial. If the judge believed the jury decided the case incorrectly, members of the jury could still be punished. Although judges were not expected to instruct juries unless requested by the jury, jurors soon realized that it was wise to see in advance how the judge thought the case ought to come out rather than risk punishment if they guessed wrong.

In 1670 in Bushnel's case, an English court finally held that jurors could not be personally punished for failing to decide the case as the judge desired. Attaint by a second jury sufficiently checked the decisionmaking of the first, and since this was the only check, juries became the ultimate decider of the law as well as the facts. It was not until the eighteenth century that judges could grant a new trial to cure a faulty jury verdict.

In the United States early juries were not instructed at all and were regarded as equal to the judge in their ability to interpret the common law. The common law was believed to be built on commonly shared values and thus who better to decide the law than the jury. It was not until the end of the nineteenth century that state legislatures and courts required that the trial judge instruct the jury and empowered him to grant a new trial as a means of exacting compliance with his instructions. In 1895 in Sparf and Hansen v. United States [156 U.S. 51 (1895)], the Supreme Court held that jurors did not have the right to decide questions of law, even in criminal cases. The law applicable t the case, therefore, had to be given to the jury by the trial judge.

Thereafter, appellate courts reviewed jury istructions as a means of insuring that trial judges stated the law accurately, and in response, trial judges began to expand and fashion their instructions in an effort to avoid appellate reversal.

IV. The Use of Pattern/Model Jury Instructions

"As instructions became more and more protective and complex, pattern jury istructions evolved--instructions drafted in advance to be used in all applicable cases. The Los Angeles Superior Corut adopted the first set of pattern instructions in the late 1930's, an event that led to the adoption of state-wide pattern jury instructions in California. Since then, almost all jurisdictios have adopted some form of pattern jury instructions." [Harvey S. Perlman, Pattern Jury Instructions: The Application of Social Science Research, 65 Neb. L. Rev. 520, 528 (1986)]

V. Jury Comprehension of Pattern/Model Jury Instructions

"Since 1970 a series of empirical studies have documented first, that pattern jury instructions are not completely understood by the jurors to whom they are addressed, and second, that the use of certain techniques in drafting and organization improve juror comprehension." [Harvey S. Perlman, Pattern Jury Instructions: The Application of Social Science Research, 65 Neb. L. Rev. 520, 528 (1986)]

Revisiting Jury Instructions (Part 1): Alabama through Mississippi ["Reference From Coast to Coast: Sources and Strategies," a monthly column written by Jan Bissett and Margi Heinen for LLRX.com]

Revisiting Jury Instructions (Part 2): Missouri - Wyoming

VI. Problems With Model Jury Instructions in West Virginia

When you begin to read the "proposed" West Virginia Jury Instructions the first thing you will note is how brief they are and that, for the most part, they lack comments or commentary. What you get in a "model" West Virginia jury instruction is the barest statement of the law and the citation to selected cases in which that statement of law has been pronounced. In a sense, the present "proposed" jury instructions are a continuation of the "syllabus point" approach to law used by the Supreme Court of Appeals of West Virginia (hereinafter West Virginia Supreme Court).

By "syllabus point law" I refer to the practice of the West Virginia Supreme Court in 1) writing it's own "head notes" or "syllabus points," and 2) using these head notes/syllabus points, not simply as references for cataloguing legal doctrine, but as full statements of the law on a particular legal doctrine that the court points to in opinion after opinion.

In in West Virginia criminal law cases, the Supreme Court often decides its cases by presenting: 1) a straightforward presentation of the facts, 2) applicable law by way of "syllabus points" from previous cases, and 3) the court's legal conclusions. What is conspicuously missing in so many West Virginia criminal cases is an analysis, or reasoning used by the court to get from the facts & law to the conclusion. (There are, of course, notable exceptions to this conclusion.)

Analysis and reasoning is absent in many criminal law opinions decided by the West Virginia Supreme Court; the result is a rule-oriented jurisprudence. E.g., we get a statement of malice (that is, the law of malice)(malice is an element of 1st and 2nd degree murder, an element of murder that distinguishes it from voluntary manslaughter), an extremely truncated statement that is used in case after case without elaboration or explanation. There is, or so one might conclude, an assumption that once a brief statement of malice has been established, it can be used without elaboration or further refinement, or critical reviewing. The assumption seems to be that malice is malice and any further talk or elaboration is unnecessary.

The problem with appellate opinions littered with "syllabus point" and conclusions that have not been reached after analysis/reasoning is that we end up with no better sense of how the Supreme Court will decide it's next case than we did before it decided it's last case. Again, I do not mean to suggest that this lack of utility of the Court's opinions is equally applicable to every criminal law case it decides. E.g., in State v. Joseph, the Court formally recognizes "diminished capacity" as a defense, or a rule of evidence (if there is any real difference in finding that evidence on "diminished capacity" is admissible, and holding that in finding it is admissible it is a defense), and in doing so, announces, at minimum that trial court judges must consider evidence of "diminished capacity." Of course, the court, in announcing it's recognition of "diminished capacity" raised a host of issues which could, or should, have been resolved without the need for continued revisiting of the issue.

A further example is found in in State v. Lockhart, 208 W. Va. 622; 542 S.E.2d 443 (W.Va. Sup.Ct.App., 2000)[on-line text](the 2000 opinion in Lockhart was preceded by a 1997 opinion, State v. Lockhart, 200 W. Va. 479, 490 S.E.2d 298 (W.Va. Sup.Ct.App., 1997) [on-line text], where the Court decided that Dissassociative Identity Disorder (Multiple Personality Disorder) would be recognized as a mental illness on which a defendant can base an insanity defense, the court has done something real and tangible beyond simply deciding the outcome of a single case. The issue that I raise here concerns the value of the court's decided cases to help prosecutor's and defense lawyers know the reach and scope of the law, as well as the result in a single case.

The obvious temptation in a state like West Virginia is to simply convert the Court's established "syllabus points" into jury instructions. While these long standing statements of the law expressed in "syllabus points" may be readily accepted by the court and lawyers as authoritative announcements of the law, we cannot expect these compact, terse, abbreviated statements to be as comprehensible to jurors as they are to the lawyers and judges who have become, as a matter of practice, familiar with them.


On the standard for determining whether a jury instruction should be given when requested by the defense. Basically, the court in West Virginia, as in other jurisdictions relies upon the following rule: "'In this jurisdiction where there is competent evidence tending to support a pertinent theory of a case, it is error for the trial court to refuse a proper instruction, presenting such theory, when so requested." State v. Hayes, 136 W. Va. 199, 67 S.E.2d 9 (1951)(syllabus pt. 4); State v. Smith, 156 W. Va. 385, 193 S.E.2d 550 (1972)(syllabus pt.2). But note that courts may, determining upon the defense, adopt different standards for different defenses. See e.g., the West Virginia Supreme Court's statements about the minimal evidence necessary for a defendant who has put on evidence of self-defense. (You'll need to check to see the court's specific language and how it has phrased this standard.).

Consider the following Michigan case from the Michigan Appellate Digest: "To be fully excused from a homicide, the killing by the defendant must have been accidental and not criminally negligent, but a reduction of a charge from murder to involuntary manslaughter only requires accident; the presence of criminal negligence does not preclude obviation of a charge requiring intent. Thus, accident is a defense to murder even if the defendant acted with criminal negligence. In this case, the defendant and the victim became involved in an argument, and the defendant produced a handgun and aimed it at the victim. The defendant and the victim fought for control of the firearm, and the gun discharged into the victim, later resulting in the victim's death. Immediately after the firearm discharged, the defendant expressed remorse to the victim, and claimed that the safety had been on and the discharge was accidental, and the defendant sought medical aid for the victim. The defendant was charged with murder and felony firearm, and at trial he asserted that the killing had been accidental, and requested a jury instruction on accident. The trial court concluded that even if the shooting had been accidental that the defendant had acted with criminal negligence, and thus that the defense of accident was not applicable, and so the court refused to give the instruction. The jury convicted the defendant of second-degree murder and felony firearm, and the defendant appealed, asserting that the failure to properly instruct the jury deprived him of his defense. The prosecutor argued that the facts had not supported a giving of the instruction, but the evidence supported the defense of accident, and although the failure to instruct on the defense did not preclude the presentation of the defendant's defense through evidence and argument, the court improperly failed to instruct the jury as to the defense." [People v. Hawthorne, 265 Mich. App 47; 692 NW2d 879 (2005) [on-line text of opinion]

On the use of proposed and model jury instructions: (1) "[T]he pattern instructions are not sacrosanct, a fact that has been borne out by the appellate rejection of pattern instructions, as well as appellate recognition of the fact that a legally 'correct' instruction can change its stripes when applied to a given case. Although not greeted with open arms in many courtrooms, opportunity awaits the attorney who specially crafts instructions for his case or who proposes modifications in existing instructions to tailor them and remove misleading or offending materials." Pike & Fischer, BNA Criminal Practice Manual, Sec. 131.101. (2) Standard jury instructions "are no more sacrosanct than any others. Unless a particular instruction fits the evidentiary situation and presents a fair and impartial picture of the issues, it should not be given." People v. Mata (Calif. 1955), 133 Cal.App.2d 18, 21, 283 P2d 372. It should be noted that the model or proposed jury instructions are not themselves law, and a trial court is not required to use the exact language in the proposed jury instructions.

A defense lawyer or prosecutor who proposes to use language that differs from the standard/proposed/model jury instructions must be prepared to persuade the judge that his/her proposed instructions correctly state the law and how the standard instructions fail to do so in the immediate case.

Note: "It is not reversible error to refuse to give instructions offered by a party that are adequately covered by other instructions given by the court." State v. Hamric, 151 W.Va. 1, 151 S.E.2d 252 (1966).

Jury Instructions on Lesser Included Offenses: An instruction on a lesser included offense is required if there is credible evidence upon which the defendant might reasonably have been convicted of the lesser offense. A California court puts the matter as follows: "Instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury."

Where there is no credible or significant evidence applicable to the lesser degrees of the offense charged, and all of the evidence taken together shows that the offense, if committed, was clearly of the higher degree, instructions relating to the lesser degrees of the offense are not necessary.

Consider the following jury instruction on Murder and Its Lesser Included Offenses:

The Jury may find the Defendant guilty of any lesser crime which is included in the principal crime charged whenever such a finding is consistent with the facts found by the Jury from the evidence in the case, and with the law as given in these instructions. If the Jury finds the Defendant not guilty of the crime of second degree murder, then the Jury must proceed to determine the guilt or innocence of the defendant as to any lesser crime included in second degree murder. If you find the Defendant not guilty of second degree murder, you will then determine whether he is or is not guilty of the included crime of manslaughter.

Improper Use of a Jury Instruction by a Prosecutor: Budzyn v. Michigan [on-line text of commentary]


Harvey S. Perlman, former Dean at the Univeristy of Nebraska College of Law, and the drafter (with Stephen Saltzburg) of the civil pattern jury instructions for Alaska and pattern instructions for federal criminal cases, notes that based on the influence of psycholinguistic studies of pattern jury instructions and jury comprehension led to revisions which focus on "vocabulary, grammar, and organization" and the replacement of "legal jargon with common words, abstract words with concrete words, and negative words with positive words."

[Harvey S. Perlman, Pattern Jury Instructions: The Application of Social Science Research, 65 Neb. L. Rev. 520, 529 (1986)]

Drawing on the work of Elwork, Sales & Alfini in Making Jury Instructions Understandable (1982), Perlman goes on to note that:

Their revised instructions were sensitive to grammatical construction that had been shown empirically to improve comprehension. They avoided, where possible, embedded and compound sentences and the passive voice. They adopted what some social scientists termed a hierarchical and algorithmic organization scheme which breaks down general concepts into component parts such that concepts flow from previously explained concepts. [Id. at 529-530]

"There are really two approaches to simplifying legal terms. One can substitute common words or extended descriptions or one can use the legal term and provide a definition."

[Harvey S. Perlman, Pattern Jury Instructions: The Application of Social Science Research, 65 Neb. L. Rev. 520, 533 (1986)] ["Jury instructions often employ legal terms in order to structure but not to eliminate the discretion of the jury. These terms are left without bright parameters in order to facilitate the jury's obligation to impose some form of community standard." Id. E.g., "reasonable doubt" may be one of those concept that judges will simply not attempt to define "with too much precision." Id. "Defining reasonable doubt may be a ask that justifiably requires the jury to exploit its own intuition and common sense. Of course the jury can be told that the state must prove the elements of the offense beyond a reasonable doubt. But beyond that, there may be nothing more of content then [sic] the jury's deliberative and collegial views of the matter." Id. at 540. See generally: Henry A. Diamond, Note: Reasonable Doubt: To Define, or Not to Define, 90 Colum. L. Rev. 1716 (1990); Note, Reasonable Doubt: An Argument Against Definition, 108 Harv. L. Rev. 1955 (1995); Thomas V. Mulrine, Reasonable Doubt: How in the World is it Defined?, 12 Am. U.J. Int'l L. & Pol'y 195 (1997); Lawrence M. Solan, Refocusing the Burden of Proof in Criminal Cases: Some Doubt About Reasonable Doubt, 78 Tex. L. Rev. 105 (1999). See also, Simon & Mahan, Quantifying Burdens of Proof: A View from the Bench, the Jury, and the Classroom, 5 L. & Soc'y Rev. 319 (1971)]

"No jury instruction can clarify a law that is itself ambiguous."

[Harvey S. Perlman, Pattern Jury Instructions: The Application of Social Science Research, 65 Neb. L. Rev. 520, 539 (1986)]["Nor should restyled jury instruction be used to reform legal doctrines that may have been purposely designed to provide an open-ended opportunity for the jury to follow its own sentiments." Id.]