First of all, there is a presumption and you may have a difference of opinion on this, but there is a presumption that; juries do follow instructions. Now, this is a rebuttable presumption. However, the US Supreme Court says that; they’re going to presume, as all the appellate courts do, that the jury gave thoughtful consideration to the charges they were given, that would include also instructions to disregard! They’re going to presume that they follow it. Now, how would you show that they didn’t follow it? I’m going to touch on that for just a moment before we move on. We were able to show, myself and my associate in Atascosa county that; in a sexual assault case, a child sexual assault case, since they tend to be the only case that get trialed around here, that the extraneous offenses which were introduced to impeach the defendant, we put on a motion for new trial and called the four person of the jury.
I was able to get him to admit, that they did consider the extraneous offenses for consideration of punishment. He admitted it flat out! I asked him,” so, you did use those cases to determine just the number of years then” he goes.” that’s right! We used it to determine; how long” ok. Well that’s jury misconduct right there. And they did not follow the instructions of the trial court. So that’s one ways of you can do it.
Ok! The first part of the jury charge is the definitional portion. We call that the abstract portion of the charge. That’s where it’s basically definitions that are found in the code. If there’s not a definition in the code, then you should not have a definition, given to the jury. And a point on that I want to point out; have any of ya’ll had cases with a prosecutor tries to tell the jury what the law is? I mean I’m just guessing you know, just saying. Ok! Well, don’t let them do that.
There’s only one person who gets to tell them what the law is and that’s the trial court through the jury charge. Don’t let the prosecutor pontificate, read from books what the law is unless it is in the jury charge and only then can they read from the jury charge. Also, you need to look at your indictment. I know! What a concept, but pull out your indictment and go back and look at it. Because sometimes we get so caught up in the details we forget to back, pull out the statute of the offense, look at your indictment and see; what the elements of the offense are! The jury charge should be restricted to; the indictment and the evidence put on it [30.46]. Non indictment theories should not be in your jury charge. Now let me ask some of you folks here; who prepares the jury charge in criminal cases? Who do ya’ll think?
the court reporter or the clerk of a court. That’s right! The parties really don’t create the charge like in civil cases. But I highly recommend to you, when you have the opportunity which you may not, but definitely try; get the charge the night before you charge conference. Usually the clerks that work for the trial court or the court reporters in some cases or perhaps the DA’s offices pre-prepared the charge, and created a charge bank for the court. Get that ahead of time, look at it, read it, compare it to your statutes. Because many times the people preparing that charge either aren’t attorneys’ or they’re very very young new briefing clerks who are working for court administration. I’m not saying that they’re not intelligent people, they are! But, they’re not attorneys’ who’ve taken the Rusty Duncan courses like you all. So, you know to go back and look.