NEGATIVE vs. POSITIVE WORDED CRIMINAL INSTRUCTIONS

     By LawReader Senior Editor Stan Billingsley    An unpublished decision issued Jan. 26, 2007, (Bobbitt v. Commonwealth), issued by the Ky. Supreme Court, discussed the issue of positive vs. negatively worded criminal jury instructions and is as important for its negative implications as it is for its positive ruling. (There we grammatically used double negatives in one sentence correctly!).
 The Court upheld the form of wording used by Justice Cooper in his criminal instruction forms. But what the court did not say may be just as important.The Supreme Court did not say that you must word your criminal instructions in the Cooper-Negative format….it just said that it was okay to do so.  So we suggest that there is nothing wrong in submitting criminal jury instructions in a traditional positive-format.

There are three ways to word criminal instructions:

1) TRADITIONAL – POSITIVE:  You shall find the defendant in this case not guilty unless you are satisfied from the evidence alone, and beyond a reasonable doubt, that he is guilty. If upon the whole case you have a reasonable doubt that he is guilty, you shall find him not guilty. 2) COOPER VERSION – NEGATIVE :  You will find the Defendant guilty of ____ under this instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:3) Federal Model Criminal Instruction:
 

1.2 THE CHARGE—PRESUMPTION OF INNOCENCE

This is a criminal case brought by the United States government. The government charges the defendant with [crime[s] charged]. The charge[s] against the defendant [is] [are] contained in the indictment. The indictment is simply the description of the charge[s] made by the government against the defendant; it is not evidence of anything.[In order to help you follow the evidence, I will now give you a brief summary of the elements of the crime[s] which the government must prove to make its case: [supply brief statement of elements of crime[s]]. These instructions are preliminary and the instructions I will give at the end of the case will control.]

The defendant has pleaded not guilty to the charge[s] and is presumed innocent unless and until proved guilty beyond a reasonable doubt. A defendant has the right to remain silent and never has to prove innocence or present any evidence.

In Bobbit v. Commonwealth the Court focused on the ultimate definition of the presumption of innocence.  The Court saw no harm in the method by which Justice Cooper informs the jury they must find the defendant guilty.  This wording by Justice Cooper has bothered defense lawyers for sometime.  We see nothing in this case that prevents a defense lawyer from introducing his own positively worded instruction.

The key thing to remember is that if you fail to submit your own instruction you may not raise this issue on appeal.  Further, the trial court may choose our of habit or personal preference to issue the Cooper style instruction, and Bobbitt will allow him to do so.

We note in the Bobbit decision that the court cited two cases for their reasoning. Mills v. Commonwealth and Sanders v. Commonwealth (cites are mentioned below).  We have reviewed both of these decisions and must admit that we do not find the clear language in either of these decisions to clear up this issue.

Conclusion:  There is nothing wrong with either a positively or negatively worded criminal jury instruction.  The issue is whether or not the presumption of innocence is clearly stated, and both versions ultimately have been found to do so.

See:

Bobbitt v. Commonwealth, 2005-SC-000487-MR.pdf . Jan. 26, 2007, an unpublished decision of the Ky. Supreme Court:
 APPEAL FROM JEFFERSON CIRCUIT COURT – HON . F. KENNETH CONLIFFE, JUDGE
 

C. The trial .court’s jury instructions were proper.

The Appellant claims that the trial court failed to properly instruct the jury in a

manner consistent with the presumption of innocence and burden of proof. He states

that the jury instructions should have been phrased in the negative.

The jury instructions began as follows: “You will find the defendant …. guilty of robbery in the first degree under this instruction if and only if you believe from the evidence beyond a reasonable doubt all of the following.” The instruction was taken from Cooper’s instruction book and followed the form instruction . See W. Cooper, Kentucky Instructions to Juries, Criminal, §6.14 (1999). The Appellant argues that the instruction should have stated . “you will find the Defendant not guilty unless . . .”
  But, the jury was given an instruction on the presumption of innocence which stated : “the law presumes a defendant to be innocent of a crime and the indictment shall not beconsidered as evidence or as having any weight against him . You shall find the

defendant not guilty unless you are satisfied from the evidence alone and beyond a

reasonable doubt that he is guilty if upon the whole case you have a reasonable doubt

that he is guilty you shall find him not guilty.”

The presumption of innocence instruction given here is in line with proper language
provided in RCr 9 .56(1)3 and Cooper supra §2.02 . This court has held that such a
presumption of innocence instruction is sufficient. See Mills v. Commonwealth , 996
S .W .2d 473, 491 (Ky. 1999); Sanders v. Commonwealth 801 S .W.2d 665 (Ky. 1990). There was no error. (emphasis added by LawReader).
 

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