Wednesday, May 17, 2006
Some white collar attorneys have come to a realization this week - and that is that different places in the United States proceed differently when it comes to the reading of jury instructions. In the trial of Skilling/Lay, reports say that instructions were given prior to the closing arguments. This differs sharply with some jurisdictions that give the instructions after the closing arguments.
So the question is whether it is better to have instructions before or after the closing argument?
For the prosecution it means using language in the final closing that may come directly from the instruction and emphasizing the important phrases in the rebuttal. For the defense it may mean having the jury aware of the law before even starting the closing arguments.
But there really are two problems with this analysis. The first is that the instructions are usually incomprehensible to a jury. We use jury instructions to teach law students, and I am confident that many of them would tell you that this stuff isn't easy. Second is whether there should be uniformity here. It is always amazing how the DOJ continues to desire uniformity on the final phase - the sentencing, but fails to object to the lack of uniformity for other parts of the trial.