Ep. 7 Criminal Pattern Jury Instruction

We turn our attention to discuss the criminal side of jury instruction. Judge Chris Craft of Shelby County, Judge Dee David Gay of Sumner County and Judge Mark Ward of Shelby County, all members of the Tennessee Judicial Conference Pattern Jury Instructions Criminal Committee, discuss the importance of jury instructions and how critical they can be to the outcome of a criminal case, the evolution of the committee, and advice to judges and attorneys on giving instructions to a jury. 

Produced by Nick Morgan

Transcript

00;00;01;11 - 00;00;25;20
Voice Over
Tennessee. Court Talk is a podcast presented by the Tennessee Supreme Court Administrative Office of the courts. The aim of the podcast is to improve the administration of justice in state courts through education and understanding. The target audience varies and is announced in the beginning of each episode. Welcome to Tennessee Court top.

00;00;25;23 - 00;00;46;08
Host
I'm your host, Barbara Peck, and today we are discussing criminal pattern jury instructions. This podcast is intended for legal audiences, including judges, lawyers, and law students. Our first guest is Judge Chris Kraft. He is the chair of the Tennessee Judicial Conference pattern jury Instructions Criminal Committee. Judge craft is a criminal court judge in the 30th Judicial District, which encompasses Shelby County.

00;00;46;13 - 00;01;05;20
Host
He was appointed to the bench in 1994 and was has been reelected three times. Our second guest is judge Mark Ward. He is the co-chair of the Tennessee Judicial Conference pattern jury Instructions Criminal Committee. Judge Ward is also a criminal court jury in the 30 30th Judicial District. He was appointed to the bench in 2004 and was subsequently reelected.

00;01;05;22 - 00;01;21;15
Host
A third guest is Judge David Gay, who serves on the Tennessee Judicial Conference and Jury Instructions Criminal Committee. He, judge Gay is a criminal court judge in the 18th Judicial District, which encompasses Sumner County. He took first took the bench in 2006. Welcome to you all.

00;01;21;17 - 00;01;22;00
Judge Craft
Thank you.

00;01;22;07 - 00;01;22;18
Judge Ward
Thank you.

00;01;22;22 - 00;01;39;09
Host
So last year, there were over 5700 criminal jury trials in Tennessee, ranging from assaults to capital murder cases. Have you, as a judge, ever felt like a case? Was the outcome of a case? Was affected by the jury instructions?

00;01;39;11 - 00;01;56;11
Judge Craft
Well, of course, the jury doesn't know what the law is, and that's what we do. We take the law the legislature gives us, and we tell the jury what it is. And so every case is affected by the jury instructions because the jury has to understand the law. And then they come up with the facts and they have to put those two together and give us a verdict.

00;01;56;14 - 00;02;00;24
Host
Judge Ward, you ever felt like the outcome was affected by the instruction you gave?

00;02;00;26 - 00;02;32;10
Judge Ward
I'm not sure the outcome was affected by the instruction as much as the the case that may have not gone to trial because of the anticipated jury instructions. I've had cases before that. Once the attorneys realized the exact nature of the instructions, what I'm going to tell that jury, all of a sudden they decide to settle the case. So I think it affects, the dispositions without a jury trial as much as it does the actual trials.

00;02;32;13 - 00;02;52;08
Host
That was one of my questions as well. So there was about 157,000 dispositions last year. So only if you look at it that way, only 5700 went to trial. The other 150,000 were disposed of without trial. So obviously you feel like the jury instructions really affect those cases that are settled beforehand as well.

00;02;52;11 - 00;03;27;10
Judge Ward
Well, I think if the attorneys, prepare for the case and prepare, preparing also includes realizing what the instructions are going to be. And once they realize that sometimes it eliminates, potential defenses, for instance, or a potential, claim that the defendant wasn't aware of what they're doing at the time of the crime, when it when they read the instruction and find out it doesn't require intent. Things of that nature has often, result in the case actually settling.

00;03;27;13 - 00;03;31;12
Host
So when do you think an attorney should first look at the jury instructions in a case?

00;03;31;14 - 00;03;54;08
Judge Ward
When they're first retained by the defendant or appointed by the court? I think the, the attorney who's preparing the case for trial number one should have in his trial notebook exactly what they expect the jury instructions to be, exactly what their proposed special request should be, but not just at the time of trial, but all the way back to when they first get on the case.

00;03;54;08 - 00;04;18;14
Judge Ward
They should. They should. First thing they should do is anticipate what the jury instructions are going to be from the trial judge, so that when they interview their clients, when they interview the witnesses, when they're preparing their arguments, their voir dire questions, their opening statements, they're gearing those, things to what they anticipate the jury is going to be told, the lawyers.

00;04;18;16 - 00;04;38;10
Judge Ward
So I think from the from the moment they're hired on the case, they should start thinking about what is that judge going to tell the jury? The law is because the truth is, it really doesn't matter what the law is. What matters is what the jury has told the lawyers about the jury instructions.

00;04;38;12 - 00;04;56;00
Judge Craft
Particularly like murder cases, when the defendant decides right after the state's proof, I'm not going to testify, which is his right. And I tell the lawyers I'm not charging self-defense because there's been no proof of self-defense. And a lot of times they decide they'll go ahead and settle the case.

00;04;56;03 - 00;05;01;06
Host
Judge gave. What what do you think about the timing of when a lawyer should first look at the jury instructions?

00;05;01;06 - 00;05;33;26
Judge Gay
Well, I think, a lawyer first needs to look at the jury instructions some somewhere, in the discovery process. And I think it's very important that, that is communicated to the defendant so that the defendant, can gauge the evidence, that's going to be introduced against him. Compare it with, jury instructions and make a decision, about whether or not he wants to proceed to trial or whether or not he wants to, settle the case.

00;05;33;26 - 00;05;58;23
Judge Gay
A lot of times, defendants are influenced when they know that the judge is going to charge a certain, element, and he's going to say, wow. Or she. I'm in trouble. I also agree with, Judge Craft. I think every case, that's tried by a jury is affected by the instructions. We're dealing with people here that know nothing about the law.

00;05;58;24 - 00;06;40;09
Judge Gay
So you start with beyond a reasonable doubt. Nobody has any idea what that means. And by the time I have a case that goes, to deliberation, the jury is going to hear that definition at least three times the target that you are. Most people think that you need to be publicly drunk. But, if you look at the instruction under the influence, you they'll see that it doesn't require that that level of intoxication. So, a lot of things that people might think about, the law is different, and it's, borne out, I think, in every, every case.

00;06;40;12 - 00;06;52;26
Host
So let's talk a little bit about how the committee, that you all serve on, develops these instructions. So tell me a little about the history Judge Craft here on the 22nd edition of the pattern Jury Instructions. Tennessee, tell me a little bit about the history of them.

00;06;53;03 - 00;07;23;07
Judge Craft
Well, since I'm the oldest, I probably the one that remembers back in the 70s, I tried my first jury trial as a lawyer in 1977. The judges a lot of times just talk to the jury. They weren't in writing, and they just told the jury instructions. We didn't really know what was going on. Then, when the rules were changed in the 80s that you had to give written instructions in felonies not still in misdemeanors to do this day, you don't have to get written instructions, but they had to be written down.

00;07;23;10 - 00;07;43;27
Judge Craft
And so we had to give the trial judges, some patterns. And they were slowly developed in loose leaf notebooks. And as every time the law changed or there was a new case, they would give judges new pages to put in their book. And a lot of times the judges would, not get them in the mail or they would put them in and still use the old ones and not throw them away.

00;07;44;00 - 00;08;05;17
Judge Craft
So in 1996, we started the publishing of a paperback book, and we changed it every year. That Tom Thomson Reuters puts out. And we do all the work and give it to them, and they do the book, and then they give us free books for our work. But all the judges have that book and a CD that they can use for the charges.

00;08;05;19 - 00;08;23;13
Judge Craft
And the legislature keeps changing the laws every year. And also the judges keep having different requirements as far as the Supreme Court and the Court of Appeals. And so we have to keep abreast of those charges. So we put them on the website, and then every October our new book is published so that the judges have it.

00;08;23;15 - 00;08;30;18
Host
So tell me about the process a little bit about how the committee changes the instructions and the comments and the footnotes.

00;08;30;21 - 00;08;50;26
Judge Craft
Well, we meet every, every year. And for instance, we just a few just an hour ago, we had a new domestic violence, I mean, a new elder abuse law that's taking place January the 1st of 2020in in a couple of months. And so we had to go through the new jury instructions to put in that book, which has already been published this year.

00;08;50;29 - 00;09;12;00
Judge Craft
And so the committee had to go through. We discussed them, we made some tweaks, and we agreed on how to take what the legislature said, some of which is a little complicated because it's made for laws and not juries. For instance, there'll be a phrase, that you need certain things on a crime that, the law says requisite to constitute the offense.

00;09;12;00 - 00;09;38;15
Judge Craft
Will a juror won't know what the word requisite means, so we'll change that to say needed to constitute the offense. And so we try to, put the legal language into language that ordinary people can understand. Usually the ordinary, average juror in Tennessee doesn't even have a lot of times a high school education. And so we have to make sure that we take complicated legal terms and make them to where normal people who aren't lawyers can understand.

00;09;38;19 - 00;09;53;02
Host
So there is a lot of studies out there that says that jurors rarely understand jury instructions. Hopefully that is not the case in Tennessee. But how does how does the committee balance the quest for plain language that you were just talking about, with the need for a legal precision?

00;09;53;05 - 00;10;20;18
Judge Craft
Well, that's the the tough part is to make sure and we also come from different jurisdictions. I'm in a metropolitan jurisdiction, and there are a lot of people who are in rural jurisdictions where the average juror may have not an eight or ninth grade education. And so we have to make sure that we put it, in fact, that the Ministry of Justice, the court sent me to Philadelphia one year to take a course on how to take legal concepts and put them in ordinary language.

00;10;20;25 - 00;10;37;19
Judge Craft
And we'll have juries that will ask questions. What does a certain word mean? And we'll have to put it in an ordinary language so that they can understand it. And if it's too vague, the appellate courts will let us know and we'll have a case and then we'll follow that case. But we try to we try to get it right the first time.

00;10;37;21 - 00;10;45;12
Host
And how does the committee use the comments and footnotes to update the jury instructions if you're not updating the instruction actually itself?

00;10;45;14 - 00;11;07;15
Judge Craft
Well, we don't the comments are for the judges. We will have the pattern instructions, but sometimes they shouldn't be used in certain types of cases where if you have certain types of situations and so we footnote our instructions so that the judges and the lawyers who hopefully have looked at the instructions ahead of time, they will know what the cases are.

00;11;07;17 - 00;11;26;21
Judge Craft
There are a lot of times there. So I don't think you should charge this or I think you should charge or instruct the jury this, that we call them jury charges. And then we'll have that case to show them that because we have to follow our appellate courts and then we have comments because sometimes judges get in trouble and they tend to charge the wrong thing.

00;11;26;24 - 00;11;48;10
Judge Craft
And so we'll refer them to that comment to explain that to them, because, a lot of judges in Tennessee, there are only 33 criminal court judges. The other judges try everything and they'll try 2 or 3 criminal cases a year, if that. And so we need to make that instruction book to where all the judges can understand it, even if they're not really familiar with criminal law.

00;11;48;13 - 00;12;07;11
Host
And judge Ward, what about the timing of jury instructions? I think there's some different philosophies out there about when your instruction should be given to the jury. Do you have a philosophy? It should be during before. So when they're listening to the evidence, they sort of know what the instruction is going to be. Not until they get the case. Both. So what is your approach?

00;12;07;14 - 00;12;37;07
Judge Ward
My approach is, has the jury instructions given it multiple times during the trial? I give some instructions before we pick the jury. Once we get a jury, I get some additional instructions, preliminary instructions. And then at the close of the trial, I'll give additional instructions. Now, say, at the close of the trial, I give my instructions before the closing arguments, so that the attorneys during their closing arguments can, refer to the instructions.

00;12;37;09 - 00;13;10;05
Judge Ward
Right now, our current rules of criminal procedure give trial judges the option of, charging the jury before closing arguments or charging the jury after closing arguments. The last time I checked, I think the predominant practice here in Tennessee by most of us is to charge the jury before the closing arguments. But but I start with the instructions before we ever pick the jury and then give additional instructions after we we get the jury and then finally instructions right before closing arguments.

00;13;10;09 - 00;13;11;17
Host
Judge Gay, How do you approach it?

00;13;11;20 - 00;13;39;29
Judge Gay
Approach it the exact same way the judge Ward does. Prior to four da then, right. Before, we start the case and then before closing arguments, I think it's very helpful that you cover the elements at that time for the jury so that the attorneys can plug that in, and the jury is familiar with those elements, of the crime.

00;13;40;01 - 00;14;03;16
Judge Craft
I think it's very important when you have jurors that first come in and they've never been in court before, usually a jurors experience as jurors the first time they've ever had in court, maybe except for a divorce. And they'll see someone sitting there charged with a crime. They may be prejudiced against them because they're just charged. They may be of a different race or a different gender.

00;14;03;18 - 00;14;31;02
Judge Craft
And so right on from the start, we need to talk to the jury about presumption of innocence. There's not going to be any bias or prejudice means prejudiced means to prejudge. We have to deprogram them from all these criminal law shows that they see on TV where people make speeches in the middle of trial. So it's important that we take charge right from the beginning. So the jurors know that they have probably the most serious, obligation that a citizen of the United States has as a juror.

00;14;31;04 - 00;14;53;20
Judge Gay
One thing I try to do, Barber, is ensure that they can be fair and impartial before they hear any evidence. And that takes care of sympathy, bias, prejudice, and set them up to where they lay. All that aside, and they can rely, on the evidence, that, that, comes in and apply that to the law. That's essential.

00;14;53;20 - 00;15;11;12
Judge Gay
That's what we do when we pick juries. So, we must get them in that frame of mind. And as judge, craft said, we've got to deal with the presumption of innocence and, beyond reasonable doubt and the fact that the defendant doesn't have to do anything.

00;15;11;15 - 00;15;29;01
Judge Craft
Yeah. As soon as they see the defendant, the first thing in new Jersey, man, is, I wonder what he did. And they start that way wrong to start with. So we have to let them know there's a presumption that he's innocent and so good. Good judges are proactive to start with and keep that during the entire trial.

00;15;29;05 - 00;15;42;00
Host
And what about how you communicate, your jury instructions. Do you do it in writing? Do you do it or do you do it as a mixed multimedia presentations going on in your courtrooms? How do you handle that?

00;15;42;03 - 00;16;11;15
Judge Ward
As I said already, I give a instruction at the beginning before we pick the jury. I give that orally. And then, after we pick the jury, give some preliminary jury instructions. I give that orally. But my final jury instructions that I give, right before the closing arguments, I do that in writing. And one practice that I have always adopted is I provide each individual juror with their own copy of those jury instructions.

00;16;11;15 - 00;16;38;08
Judge Ward
That's not required by law. And some judges still, although they give the instructions in writing, they sit there in court and read those instructions to the jury, which we are required to read them to the jury. But but I think it's important to provide them with their own individual copy to read from. Because they, they it makes more sense to them if they're reading along with the judge as the judge is reading it.

00;16;38;08 - 00;17;02;25
Judge Ward
And I tell the jury that your copy of the jury instructions, you can circle things, highlight things, take notes. Do whatever you want to on your your copy of the jury instructions. And I think that's an important practice. And I think almost everyone, in Shelby County now provides a written copy of the jury instructions. The closing instructions. I don't know what the others do.

00;17;02;25 - 00;17;34;04
Judge Gay
Barbara, what I do up in Sumter County, I follow the exact same procedure, for the, first two, different, instructions. And then when we do the, closing instructions, I have the instructions, on the screens in the courtroom. And, we have two screens there. And as I read the instructions, they follow along. And, that seems to work well up in Sumter County.

00;17;34;07 - 00;17;46;16
Host
And so these are obviously be patterned jury instructions, but sometimes they're changed before in a specific trial. So what sections, in your opinion, are most negotiated or most changed before they get to the jury?

00;17;46;22 - 00;17;49;14
Judge Craft
You mean argued by the lawyers? They just argue.

00;17;49;15 - 00;17;51;21
Host
They just argued by the lawyers? Yes.

00;17;51;24 - 00;18;17;17
Judge Craft
In my mind, it's usually lesser included offenses will have someone who's, charged with committing a murder in the, attorney. The defense attorney will want him charged with simple assault, for instance, even though someone died. Or you'll have someone charged with a sexual crime, and they will want an attempt to commit that crime, even though the crime was either committed all the way or it was not.

00;18;17;19 - 00;18;35;12
Judge Craft
And, and then you'll have the prosecutors who want all these inferences drawn, like to me to tell the jury that he fled, and they can use that to show that he was guilty when there's really not much proof that he fled. And so both sides come at you with that, and you have to instead, they don't negotiate it.

00;18;35;12 - 00;18;44;17
Judge Craft
You just have to do what you think is right. What is the proof show? You have to look at the proof and see what you think it shows in order to give that instruction.

00;18;44;19 - 00;19;11;08
Judge Ward
Other than lesser included offenses, occasionally have an attorney submit a special request for a defense. That they're raising in the case in. And they submit a special request because they, they don't like the defense. That's in the pattern. Jury instruction. There's something about that that's not beneficial to their client. So they come up with a new instruction and request that it be charged.

00;19;11;08 - 00;19;39;06
Judge Ward
And and occasionally I have done that, but most of the time I stick with the pattern jury instruction because it's the safest bet. The other thing that happens occasionally, we have some of our instructions that have alternatives. Not more than one way to charge the jury. And in some cases, some of the alternatives are attempts to modernize the language, to make it simpler to understand.

00;19;39;06 - 00;20;04;18
Judge Ward
And and sometimes when I prepare my jury instructions, I will have one alternative and they might request a different one. But quite frankly, I don't get very many special requests. Almost everyone that tries a case anticipates that it will be tried with the pattern jury instruction, and most of the attorneys are happy with the pattern jury instructions.

00;20;04;21 - 00;20;36;24
Judge Gay
Barbara, there's no doubt that the, the instructions that are most negotiated are lesser included offenses. We all struggle with the that those issues. Also, like judge Ward, ask for special instructions from both sides, so that we, go into that, having everything discussed and, everybody knows, going in what's going to be instructed.

00;20;36;26 - 00;21;07;16
Judge Craft
The hardest one is in death penalty cases when the defendant has been convicted of murder in the first degree, and the jury has to decide whether or not there's death. And the defense lawyer suggests mitigating circumstances that you charge to the jury. I had a defense lawyer asked me one time to charge, as a mitigating circumstances to the jury, that this young man's family went to Disney World and he was not allowed to go as a mitigating circumstance in the death penalty.

00;21;07;18 - 00;21;30;24
Judge Craft
And then I have to decide whether or not I think that is mitigating, as far as a death sentence. And I ended up charging it. But the more serious the crime, the more important it is when there. And a lot of times the defense particularly, is trying to get the judge to make a mistake because in case he's convicted, then they can appeal it.

00;21;30;27 - 00;21;48;12
Judge Craft
The prosecutor is not trying this to get us to make a mistake, but the prosecutors are not too worried. They just want to get a conviction. And so what we have to do is we have to do what we think is fair and just, and what the law says when all the other large in the courtroom, that's not what they want. They want convictions or acquittals.

00;21;48;14 - 00;22;10;21
Host
So from your advice standpoint, what advice would you give a lawyer who either the timing of a jury instruction or the way it's delivered or the language itself, they wanted to propose an alternate what what would be good advice on how do they approach a judge about that? You're like, when do you think, well, that was a good argument. No, but that was a good argument. When do you sort of feel like what's your advice on that?

00;22;10;24 - 00;22;34;19
Judge Ward
My advice to an attorney that is submitting a special request is the closer that they can make that special request match up with a pattern jury instruction, the more likely it is that I am going to give the special request. But not only must it be matched up, they must have some authority for the the change that they're requesting.

00;22;34;21 - 00;23;02;23
Judge Ward
They can't just pull it out of thin air. There needs to be some authority and some argument made that this is why the the the pattern instruction is not adequate for this particular case. And that that's the best thing they can do if you just go out and pull a, a case from California in some pattern instruction that doesn't have any basis in Tennessee law and doesn't look like anything that we're used to hear it.

00;23;02;26 - 00;23;09;19
Judge Ward
In other words, it doesn't correspond with our pattern instruction. It's not very likely that I'm going to give that instruction.

00;23;09;21 - 00;23;16;27
Judge Craft
It's also helpful if they present a case with that instruction. There's some law involved that says why we should charge it.

00;23;16;29 - 00;23;26;12
Host
And then let's talk about the jury themselves. If you receive a question from a jury on the jury instruction, do you answer it? Under what circumstances do you answer it?

00;23;26;14 - 00;23;46;29
Judge Craft
Well, our case law says that we should answer the jury questions if we can. There are some things that we can't answer. I'll be trying a DUI and on a guilt phase of a DUI, and the first person has two prior offenses. And when they're deciding whether or not he's guilty of DUI at the last, the question, has he ever done this before?

00;23;47;02 - 00;24;12;20
Judge Craft
And we really can't answer that question. Then there are questions like, what does this word mean? And sometimes we can give them a definition. Sometimes my answer is it's in its ordinary common use in the English language. But we can't really say, I'm not allowed to answer that question. We have to try to usually this the instruction should be so clear and plain.

00;24;12;22 - 00;24;25;12
Judge Craft
They don't really need to ask a question. A lot of times they ask questions just because they're having trouble fitting the law to the facts of the case, and they just want some hint. They want us to give them some hint about how they should decide it. And we're not allowed to do that.

00;24;25;15 - 00;24;28;14
Host
How do you handle questions on a jury and instructions, Judge Ward?

00;24;28;22 - 00;24;51;18
Judge Ward
Well, first of all, we require that the instruction be submitted to the judge in writing, and we make that written document in exhibit to the case. And before the jury comes back in the room, I discuss that with both sides. And we try to come to some mutual agreement as to how I should answer the question. Sometimes I cannot answer the question, and that's the answer they get.

00;24;51;20 - 00;25;14;05
Judge Ward
Sometimes I refer them to the instructions that were previously given to them, and sometimes I provide additional information. But I'm very careful about that because, I need to make sure that the parties are in agreement or that or that I'm absolutely sure that that is what the state of the law is in Tennessee. So I have to be very careful.

00;25;14;05 - 00;25;27;28
Judge Ward
And at the same time, we're not allowed to comment on the evidence in any way in our answer. So it so it's it's a variable situation depending on what the nature of the question is.

00;25;28;02 - 00;25;47;05
Judge Gay
I agree with judge Ward and answer, questions. Jury questions the same way. Believe it or not, the most asked jury question that I get is can we have a copy of the transcript or what did so-and-so say?

00;25;47;08 - 00;25;49;06
Judge Craft
We would like to see the police report.

00;25;49;06 - 00;26;16;00
Judge Gay
Yes. And that type of thing. And, of course, you've got to, to deal with that. But there's a, recent case that came out, about, the necessity for having both parties, present when you review, like, judge Ward said. And I'm a little concerned about a case that I just handled that, pending motion for a new trial.

00;26;16;03 - 00;26;40;04
Judge Gay
A lot of times, the jury will go out and deliberate a long time, and it's hard to rundown the attorneys sometimes when you've got a question in. In this particular case, I can't remember the exact question, but it was a no brainer answer. Like, I'm sorry, I can't answer that, or I'll refer you to such and such part of the instructions.

00;26;40;06 - 00;26;54;00
Judge Gay
And I went ahead and did that without the, attorneys being involved in that situation. Since that case came up, I'm a little bit concerned about that issue, and it's going to be real interesting.

00;26;54;04 - 00;27;20;09
Judge Ward
I will say this, we talked about the preliminary jury instructions and the timing. All of my preliminary jury instructions tell the jury that you're going to listen to the evidence one time and one time only. You will not be provided with the transcript. And you cannot come back out here and ask us what a witness said. But nevertheless, I agree with the other judges. They still come out and say, what did that witness say?

00;27;20;11 - 00;27;29;25
Judge Craft
I will usually tell them, if I played that back for you, I will have to play back the entire trial. And at that point, they changed their mind about wanting to hear the testimony.

00;27;29;27 - 00;27;37;24
Host
So what changes were on the 22nd edition of the, pattern jury instructions in Tennessee? So what changes should we expect in this edition.

00;27;37;27 - 00;28;01;12
Judge Craft
We had about 200 changes made. The legislature passed a bunch of new laws, new crimes. We just they just repealed, elder adult abuse crimes and enacted new crimes. So we have to put dates on the old instructions that they can only be used for crimes. Happened before January 1st of 2000. And then we had to draft some new instructions.

00;28;01;14 - 00;28;25;27
Judge Craft
Because when this new book comes out in October, people will be starting to try the cases that happened this spring. And so every time there's a change in the law, the elements of crimes, or every time there's case law that redefines a word in the charge, then we have to make those changes so they can be anywhere from death penalties down to shoplifting cases, all kinds of different, different words and crimes.

00;28;26;00 - 00;28;49;09
Judge Craft
Slight things. As an example, just a few hours ago, we discussed the fact that in elder abuse, we have caretakers who take care of elderly people and they will take the money from the elderly people. They'll say, give me $10,000 in and 95 year old elderly person will give them a check. Well, in the past, the police would arrest someone.

00;28;49;11 - 00;29;10;04
Judge Craft
When the family complained that they were getting the caretakers were getting money from them without their permission. And the elderly person would say, well, I want to. I'm 95, but I want to give this money. And so the legislature made a little exception that if the person consents to it, it's not against the law. And that was just a little tweak, one of probably 200 changes in the law this year.

00;29;10;06 - 00;29;33;23
Judge Craft
And so we had to change the jury charge to say, with a little parenthesis, unless they have their consent. Because if we try a case five years from now, whether it happened before January 1st of 2020 or afterwards, the jury, the judge will not know unless we document at all. The judge won't know whether or not consent should be put in the instruction or not.

00;29;33;23 - 00;29;42;28
Judge Craft
The judge won't even think about it. So we have to make these changes. So they're very apparent to the judges. So it will jump out to them so they'll know to make the right changes.

00;29;43;01 - 00;30;09;11
Judge Ward
You ask about the procedure earlier and Judge Craft to answer that question. And he's kind of the modest fellow, in in all honesty, the commission, the committee meets three times a year, a year to discuss these changes. Judge craft spends the entire year reading everything the legislature does to change the law, and also spends the entire year reading the appellate opinions that discuss jury instructions.

00;30;09;14 - 00;30;44;12
Judge Ward
And he almost single handedly does the updating of all of this material. And at the same time, all during the year, judges from all over the state are calling him to discuss the problems they're having with with these jury instructions. So he serves sort of as the clearinghouse of all the judges. And so, he might be kind of modest, but without Judge Craft, the, the pattern jury instructions would not be near as complete and comprehensive as they are now. And they stay current because of Judge Craft's dedication to to making this happen.

00;30;44;17 - 00;30;50;14
Host
So if you're a judge and you have a concern about a jury instruction, it's Chris Craft is who you should be emailing.

00;30;50;16 - 00;31;02;04
Judge Ward
You should be calling him or emailing. Sometimes they call me by mistake or if they can't get him, but I usually put them on hold and call Judge Craft and then get back on the phone and tell them my brilliant answer.

00;31;02;10 - 00;31;03;25
Judge Craft
But, well, it's the chairman's job.

00;31;03;26 - 00;31;15;11
Host
Okay, but the point is the if you if you have a question about a jury instruction or you have a concern, there is an outlet for you. There is a committee. Committee has chair and vice chair. So you should be communicating with them what your concerns are.

00;31;15;11 - 00;31;47;16
Judge Craft
And with that particular situation of that judge, we might think, you know, we need to change this instruction and put a comment. If you have this fax situation, you might want to make this change in the instruction. And in a lot of this is for the judges who very seldom try a criminal case. And, they need this, these instructions to help as a guide to them, to help them with it. If I had to try. I've been a criminal court judge for 25 years. If I had to try a divorce case or a civil jury trial, I would need all kinds of help.

00;31;47;18 - 00;32;07;21
Host
Oh, so what point would you need to go back to old jury instructions? Is a case is being retried or sent back on appeal. But and how do you find old jury instructions is it's not it's obviously we talked a lot about the updating. But sometimes you need to know what was the jury instruction pattern. Your instruction in 2015?

00;32;07;24 - 00;32;31;02
Judge Craft
In this coming February 2020, I'm going to try a death penalty case. They're asking for the death penalty for men and the murder happened in 1979. And so I have to go back and get the instructions for then I can get, help with that. Plus certain changes through that. And I have this problem. Other judges too.

00;32;31;02 - 00;32;48;17
Judge Craft
They'll they'll have someone who's been in the penitentiary for 20 years, or they'll have a cold case. We have a lot of, particularly sexual assault cases where the DNA is discovered it and it happened 15 or 20 years ago. And we have to go back and get the instructions from back then, because otherwise it's an ex post facto law.

00;32;48;17 - 00;33;05;23
Judge Craft
The laws have changed. And so the AOC, the administrative office of the courts keeps all of our old charges and all of our I have all of our books and all of our loose, loose leaf charges. Before we had books going back to 19, 93, in my office.

00;33;05;25 - 00;33;18;08
Judge Ward
So the lesson to be learned is never throw away a pattern. Jury instruction book, because as soon as you do, you'll need it for a case that's sent back for retrial after multiple years.

00;33;18;10 - 00;33;39;19
Judge Craft
One of the things we do, every year is we delete or try to delete from our book all of the crimes that have been abolished for over ten years. But we put a footnote in there. Here's if you are happy to try this, then here's the book that you need to consult to. Do that, because otherwise our book would grow so big. It would be, 2 or 3ft thick.

00;33;39;21 - 00;33;45;22
Host
So but if you didn't keep all of your old jury instructions books, where do you go?

00;33;45;25 - 00;34;11;20
Judge Craft
We we would have to just write our own instructions. We don't want to reinvent the wheel. No week we keep. And they all love sleeves. You know, I keep, man, but they also have stacks of them that are kept at the. At the minute. They tell me they're kept the administrative office of the courts. Some of them I'm sure are probably digitally produced now, but we have to keep all of those old things because new judges that come along don't even remember the old laws.

00;34;11;22 - 00;34;38;23
Judge Craft
From 1982 to 1989, we started, judge sentencing for the first time before 1982 jurors were doing sentencing. The instructions were completely different. And so, the person a lot of people are in court for a while. A lot of people are, in the penitentiary for a long time. And the state just doesn't extradite them until later. And so we have to always keep everything so that we don't have to reinvent the wheel again.

00;34;38;24 - 00;34;44;17
Host
And is that a common reason for appeal? Because the wrong instruction was given, like the wrong dated instruction?

00;34;44;19 - 00;34;55;13
Judge Craft
Yes. When we had those negotiations, you talk about, the attorneys usually bring up something about the instruction. So if they're guys convicted, they have something they can appeal.

00;34;55;15 - 00;35;01;14
Host
So let's talk about the future. So where how do you think the patterns jury instructions are going to evolve over the next ten years?

00;35;01;16 - 00;35;25;29
Judge Craft
Well, I can speak to California. They have them all digital now. And so attorneys for a fee, because it's a private publisher, they can go on and civil and criminal and they can pull their instructions down from the web and, and assemble them all and bring them to court. And they file them ahead of time for the judge to look at both sides, or 3 or 4 who have any parties.

00;35;25;29 - 00;35;53;04
Judge Craft
There are. They all have their own set of instructions, but they're they're all digitized and there are templates they fill out. And at some point, I think that will happen in the state of Tennessee. But right now we have physical, although there are digital instructions on the disc that the judge has. Our publisher, Thompson Reuters, publishes the book and it's physical and so our attorneys are prosecutors, and defense lawyers don't have a digital copy of that.

00;35;53;06 - 00;36;19;00
Judge Craft
All the changes we made today will be on the web in three weeks, but as soon as our book is published next July, that will be wiped, because obviously Reuters can't sell books if it's free on the web. But we've made this arrangement with them. But a lot of states and some of the state of California bought the software for that, and they're using that as a fundraiser in California. I think someday in state of Tennessee, that will probably happen.

00;36;19;03 - 00;36;22;02
Host
How do you think the jury instructions are going involved? Judge Ward

00;36;22;04 - 00;36;39;15
Judge Ward
I agree with what Judge Kraft said. I think we'll continue to do what we've been doing for the time being. And as long as Thomson Reuters is willing to provide the judiciary with free copies of the book, we'll continue, to provide the manpower to update it.

00;36;39;18 - 00;36;52;05
Host
What about sort of the idea of more of more plain language and more multimedia and visual sort of representations of things? You kind of see less words at some point or probably not.

00;36;52;07 - 00;37;16;11
Judge Ward
Well, we always have to balance between the words that the appellate courts tell us to use and an attempt to make them more understandable by the jury. And and we tried that. And that's why we have certain instructions that have alternatives in more modern language. And I think we'll continue to try to, to make it more understandable, by the jury.

00;37;16;14 - 00;37;25;06
Judge Ward
But at the same time, we have to be careful to continue to, to have the, the, the actual words that the courts have told us are approved.

00;37;25;13 - 00;37;48;12
Judge Craft
There's a constant tension between the exact legislative language and common sense language. I had a fella on the stand, and, lawyers using big words said that. Did they detain you and interrogate you? And he said, no, sir. They just kept me there asking me a bunch of questions. He didn't really understand those long words. And so we have to make sure that the jury understands them.

00;37;48;14 - 00;38;13;25
Judge Craft
But if they're so plain and vague that the jury could. Mr.. Screw them, then we can't do that. And so there's an art to trying to frame the language that way. And the legislature, we used to have a lot of lawyers and legislature we don't anymore. And so they have lawyers that draft things for them, and they draft them to be legally precise. And we have to explain them to, to, normal people, citizens of Tennessee.

00;38;13;28 - 00;38;18;07
Host
And Judge Gay. How do you think the patent jury instructions are going to evolve? Evolve?

00;38;18;10 - 00;38;59;04
Judge Gay
I agree with Judge Craft and Judge Ward. We're going to have to continue on this committee to do things on the ground level, three times a year to review the new case law, to review, new legislation. We're going to have to consider, each instruction and what what we can do to make it as simple as possible, yet comply with the law. And we just got to continue to, to balance out, those issues also. Agree. Digital instructions are going to come into play. But basically I think we'll continue to do the same thing, same review.

00;38;59;07 - 00;39;03;06
Host
Well, thank you, all three of you for being guests on Tennessee Court Talk today.

00;39;03;08 - 00;39;04;06
Judge Craft
Our pleasure.

00;39;04;08 - 00;39;04;23
Judge Gay
Thank you.