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Jury Instructions ASPEN, CO > > SEE PAGE 3 January 13-18, 2013 / NACDL’s 33rd Annual Advanced Criminal Law Seminar THENational Association of Criminal Defense Lawyers WASHINGTON, DC > > SEE BROCHURE February 20-23, 2013 / NACDL’s 2013 Midwinter Meeting & Seminar LAS VEGAS, NV > > SEE PAGE 8 April 5-6, 2013 / NACDL & CACJ’s CHAMPION “Making Sense of Science VI” September/October 2012 White Collar Crime Issue v The SEC’s Cooperation Initiative v The Willfulness Element of a False Statement Charge v Defense Strategies and Compliance Issues in the New Insider Trading Environment v Jury Instructions: Key Topics in Federal White Collar Cases v The Most Effective Opening Statement Ever Given? v Overzealous Bankruptcy Practice Can Lead to a Prison Cell ipated in drafting the documents, he did not have final control over the statements. Under the Supreme Court’s recent decision in Janus Capital Group Inc. v . First Derivative Traders , only “the per - son or entity with ultimate authority over the statement, including its content and whether and how to communicate it” is the maker of a statement for purposes of primary liability under the securities laws. 1 Most model or pattern securities fraud instruc - tions do not account for or address the Janus ruling. Proposing and advocating for an instruction that incorporates Janus could provide the jury with a reason to acquit. This article discusses six key issues where the court’s instruc - tions to the jury can truly affect the outcome of the case and where there is much room for advocacy. The first three — rea - sonable doubt, willful blindness, and venue — are common to white collar cases and to criminal cases in general. As a result, courts often propose to give their stan - dard instructions. But there is a strong basis to propose instruc - tions that may be more advanta - geous to the defense and can help make the difference between con - viction and acquittal. The last three concern instructions in sub - stantive areas of white collar law — securities fraud, tax evasion, and antitrust. These areas high - light that where the law is still developing, model or pattern jury instructions may not Jury Instructions: reflect the latest precedent, and often there are signifi - cant open issues that can, in appropriate cases, be pur - Key Topics in Federal sued to the defense’s advantage. Jury instructions are an extremely effective way White Collar Cases for defense counsel to present their theory of the case and law. The right charge can focus the jury and require it to confront directly whether the government has met its burden of proof on key defense issues. Proposing and advocating for clear and fair instruc - tions in the trial court is thus critical, particularly in areas such as those discussed below, where courts are reluctant to reverse convictions on the basis of erro - he right jury charge can make the difference neous instructions. between conviction and acquittal. Take, as a basic Texample, a criminal securities fraud case in which Reasonable Doubt the government has alleged that a defendant employed in a large organization made misleading statements “Proof beyond a reasonable doubt” is a concept about the company’s performance in financial state - fundamental to the American criminal justice system. A ments. The defendant contends that although he partic - clear instruction that requires jurors to reach the con - BY SUSAN E. BRUNE AND LAURIE EDELSTEIN 26 WWW.NACDL.ORG THE CHAMPION stitutionally required “subjective state for the jury. 10 Justice Ginsburg acknowl - required to find a defendant guilty. 19 of certitude” or “near certitude” neces - edged that certain formulations of the The FJC’s pattern instruction, sary for conviction can anchor the jury reasonable doubt standard can be con - however, is not perfect. The last two in its deliberations and force the jury to fusing and unhelpful, including the sentences state: “If, based on your con - answer squarely whether the govern - “hesitate to act” analogy that many cir - sideration of the evidence, you are ment has met its heavy burden of prov - cuits still use: “a doubt that would cause firmly convinced that the defendant is ing guilt beyond a reasonable doubt. 2 It a reasonable person to hesitate to act in guilty of the crime charged, you must is remarkable, then, that there is no a matter of importance in his or her find him guilty. If on the other hand, standard federal jury instruction estab - personal life.” 11 That analogy, as Second you think there is a real possibility that lished in the case law. Circuit Judge Jon Newman has astutely he is not guilty, you must give him the In many circuits, trial courts do not observed, can be beset by ambiguity: benefit of the doubt and find him not instruct jurors that they must reach a guilty.” Several circuits and commenta - subjective state of certitude to convict. If the jurors encounter a doubt tors have expressed concern that the Instead, they use a “hesitate to act” for - that would cause them to “hes - phrase “a real possibility” could suggest mulation. 3 This formulation is poten - itate to act in a matter of that the defendant must make a show - tially ambiguous and may trivialize the importance,” what are they to ing that he or she is not guilty, thereby key decision facing jurors. Other cir - do then? Should they decline impermissibly shifting the burden of K cuits have approved instructions that to convict because they have proof to the defense. 20 The Supreme E Y define reasonable doubt in a way that reached a point of hesitation, Court of New Jersey has adopted a can lower or shift the burden of proof or should they simply hesitate, modified version of the FJC instruction T required for conviction. And surpris - then ask themselves whether that eliminates this issue: “If, based on O ingly, given how fundamental the bur - in their own private matters, your consideration of the evidence, you P I den of proof is to deliberations, there they would resolve the doubt are firmly convinced that the defendant C remains a circuit split over whether rea - in favor of action, and if so, is guilty of the crime charged, you must S 12 sonable doubt should even be defined continue on to convict? find him guilty. If, on the other hand, 4 I for the jury. you are not firmly convinced of defen - N The potpourri of reasonable doubt Justice Ginsburg noted that other dant’s guilt, you must give defendant instructions and the circuit split stem reasonable doubt instructions have the benefit of the doubt and find him F E 21 from the Supreme Court’s failure to additional shortcomings, such as not guilty.” D provide clear guidance. Indeed, not “uninstructive circularity”: “Jury com - Because the Supreme Court’s deci - E until 1970, in In re Winship , did the prehension is scarcely advanced when a sion in Victor effectively held that prob - R Supreme Court explicitly hold that the court ‘defines’ reasonable doubt as lematic words or definitions in a rea - A 13 due process clause of the Fifth and ‘doubt … that is reasonable.’” sonable doubt charge can be neutral - L Fourteenth Amendments “protects the Justice Ginsburg recognized that ized by words or phrases that preclude W accused against conviction except upon difficulties in defining reasonable the jury from requiring more than a proof beyond a reasonable doubt of doubt have led some courts to question reasonable doubt to acquit, it is unlikely H I every fact necessary to constitute the the usefulness of any reasonable doubt that a reasonable doubt charge will pro - T 5 14 crime with which he is charged.” The instruction. But she refused to accept vide grounds for reversal of a guilty ver - E 22 Court recognized that the reasonable those difficulties as a reason not to give dict on appeal. Advocating for a C doubt standard was “indispensable” a definition. Justice Ginsburg’s charge that focuses on the government’s O because it “impresses on the trier of approach has to be the right one. The burden and instructs the jury that it L fact the necessity of reaching a subjec - concept clearly is not self-defining; cannot convict unless it is firmly con - L tive state of certitude of the facts in even courts define it inconsistently. And vinced of the defendant’s guilt thus can A issue,” and is thus “a prime instrument studies confirm that when jurors are be critical. It may help secure an acquit - R for reducing the risk of convictions not given a definition, they “are often tal in the first instance. C 6 resting on factual error.” But Winship confused about the meaning of reason - A 15 was an appeal from a bench trial, and able doubt.” That confusion can lead Willful Blindness S the Supreme Court did not address the jurors to apply a lower standard of E particulars of instructing the jury on proof than the constitutionally In May 2011, the Supreme Court S this constitutionally required burden required “subjective state of certitude” issued a decision in a patent case, of proof. or “near certitude.” 16 Global-Tech Appliances Inc. v . SEB The Supreme Court addressed rea - Defense counsel might consider S.A. ,23 which changed the contours of sonable doubt again in 1994 in Victor v. proposing the Federal Judicial Center’s the willful blindness doctrine — also Nebraska .7 Unfortunately, however, the (FJC) pattern instruction on reasonable known as “conscious avoidance,” “delib - Court again left trial courts without doubt, which Justice Ginsburg high - erate ignorance,” or the “ostrich” clear guidance about whether or how to lighted in Victor .17 This instruction does instruction.
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