CJI2d[NY] Model Voir Dire Instructions

The following is designed to set forth a template for the composition of instructions to a prospective jury. The responsibility of implementing the applicable law falls squarely on the trial judge. Thus, the instructions that follow are, in effect, “model,” or “sample,” charges.

The Criminal Procedure Law sets forth the following requirements with respect to a trial court's voir dire of a jury panel.

The court shall initiate the examination of prospective jurors by identifying the parties and their respective counsel and briefly outlining the nature of [the] case to all the prospective jurors [CPL 270.15 (1)(b)].

These instructions are therefore designed to set the scene for the trial by introducing the participants, setting forth the procedures for jury selection, and providing an overview of the functions and responsibilities of the judge, counsel, and jury. See CPL 270.15(1)(c); People v. Boulware, 29 N.Y.2d 135 (1971). Thus, at the appropriate time, the judge should address the panel and consider inclusion of the following in whatever order the judge finds appropriate.

The trial judge may, and should, tailor and arrange these instructions to fit his/her personal style and manner of speech in order that he/she may communicate clearly and succinctly with the prospective jurors. Of course, except for charges required by law, the Court may elect to give or not give one or more of the charges.

Table of Contents

Welcome 1

Title of Action 1

Introduction of Parties 2

Nature of the Case 3

Status of [Indictment/information] 4

Jury Composition 4

Jury Selection Procedure 4

Role of the Jury 5

Definition of a Fair Juror 6

Role of the Judge 8

Evidence 9

[Multiple Defendants] 10

Definition of: “Elements" of a Crime 11

Presumption of Innocence 11

[Defendant who does not testify] 12

Burden of Proof 12

Reasonable Doubt 13

Credibility of Witnesses 14

Police Testimony 14

[Identification] 15

[Accessorial Liability] 16

Nature of Jury Deliberations 17

Welcome

Members of the jury panel, welcome to (name of court). I am (judge’s name) and I will be presiding at this trial. Some of you are about to be selected as jurors in a criminal case, and I am about to explain to you what the trial involves and the role of the judge and the jury. We will also determine in this process, which of you will actually sit as jurors.

Before I continue, I want to thank you for being here. I realize that it may be an inconvenience for you. But, as I am sure you appreciate, a trial by jury is, and has been, the cornerstone of our system of justice for more than 200 years. Under that system, members of the community, and not a government official, decide whether a person accused of a crime by the government is guilty or not guilty.

Title of Action

The name of this case is the “People of the State of New York against (defendant’s name[s]).” The words, People of the State of New York, in that title mean the government of the State of New York. The fact that this action is brought in the name of the People or that the evidence is presented by a public official does not in any way indicate that the public wants a specific verdict. The People are served by whatever verdict is justified by the evidence.

Introduction of Parties¹

The People are represented by the District Attorney of (specify) County, (name). Assistant District Attorney (name) will be appearing for the People in this case.

The defendant in this case is _____. ²

The defendant is represented by Mr./Ms.________.

Nature of the Case

The defendant(s) (is/are) charged with the crime(s)

of: __________________________.

[NOTE: Here, the Court should, after consultation with the parties, add a definition, or list the elements, of the key crime(s) charged, and/or a short description of the allegations sufficient to permit a member of the panel to determine whether he or she could be fair in judging the case at hand. If a defense will also be the subject of voir dire, the Court may briefly explain it. See People v. Harper, 32 A.D.3d 16 (2nd Dept. 2006), aff'd 7 N.Y.3d 882 (2006) for further guidance.]

At the end of the trial, I will give you detailed instructions on the crime(s) charged [and the defense of (specify)] and it is upon those instructions that you must base your decision. I have given you this brief [definition/description] of the charge(s) only for the purpose of allowing you to consider whether there is anything about the nature of the charge(s) that would affect your ability to be a fair and impartial juror. You are not to use this [definition/description] for any other purpose; in particular, you are not now, or during the presentation of the evidence, to use this [definition/description] to come to a decision about whether or not the defendant is guilty.

Status of [Indictment/information]

The case comes to us by way of an [indictment/information]. An [indictment/information] is a document that contains an accusation. Neither the [indictment/information] itself nor the fact that an [indictment/information] has been filed constitutes evidence. The [indictment/information] has been filed against the defendant, and the defendant has answered that he/she is not guilty of the accusation. The trial therefore is to be conducted for you to decide whether the defendant is guilty or not guilty.³

Jury Composition

A jury is composed of [6/12] people.⁴ In addition to the [6/12] jurors, we will also select alternate jurors. The first person called who is sworn as a juror will serve as the jury’s foreperson.⁵

Jury Selection Procedure

[Note: The judge should here set forth the procedure for the selection of the jury, including the expected length of the trial, the days and hours of the trial, and any other important scheduling information that may impact the jurors’ ability to serve.]

Role of the Jury ⁶

The jury’s responsibility is to evaluate fairly the testimony and other evidence presented at the trial, to apply the law to the facts, and to decide whether the People have proven the defendant guilty beyond a reasonable doubt.

In your deliberations, you may not consider or speculate about matters relating to sentence or punishment. If there is a verdict of guilty, it will be my responsibility to impose an appropriate sentence.⁷

Definition of a Fair Juror ⁸

In reaching a verdict, guilty or not guilty, the jury must be fair. It is important therefore for you to know what makes a person a fair juror, so you can decide whether or not you can be a fair juror. Later in the proceedings, I will ask you whether or not you can be a fair juror. What makes a person a fair juror?

A fair juror is a person who will accept and apply the law of New York, as I explain it.

A fair juror is a person who has no bias or prejudice in favor of or against, a party, or any witness, be the witness a police officer or civilian.

A fair juror is a person who will keep the promise to be fair and impartial and will not base the decision in this case upon a bias or prejudice in favor of or against a person who may appear in this trial on account of that person’s race, color, national origin, ancestry, gender, gender identity or expression, religion, religious practice, age, disability, or sexual orientation.

A fair juror must be mindful of any stereotypes or attitudes about people or about groups of people that the juror may have and must not allow those stereotypes or attitudes to affect their decision. As you learned from the video presentation you saw during your orientation, we all develop and hold unconscious views on many subjects. Some of those unconscious views may come from stereotypes and attitudes about people or about groups of people that may impact on a person's thinking and decision-making without that person even knowing it. As a juror, you are asked to make a very important decision about another member of the community. I know you would not want to make that decision based on such stereotypes or attitudes, that is, on implicit biases, and it would be wrong for you to do so. A fair juror must guard against the impact of such stereotypes or attitudes. So you must ask yourself whether you have concerns about your capacity to put aside any biases you may have that might affect your views and conclusions about the defendant, witnesses, or others that you may hear about or see in court on account of their race, color, national origin, ancestry, gender, gender identity or expression, religious practice, age or sexual orientation, or disability.

And if you do have those concerns, you must tell us in your answer to Select appropriate alternative:

the questions I will be asking you shortly.

the following questions ⁹

A fair juror is a person who will therefore base his or her decision solely on the testimony and other evidence presented at this trial, and will not make a final decision on the verdict until the end of the case, after the juror:

has heard all the testimony and other evidence,

has heard the lawyers’ summations,

has heard the court's final instructions on the law, and

has had an opportunity after all of that to discuss the evidence with the other jurors and consider their views.

And finally, a fair juror is a person who, without fear, favor, bias, prejudice, or sympathy for either the People or the defendant or any witness, be the witness a police officer or civilian, renders a verdict, guilty or not guilty, the juror is convinced is consistent with that juror's honest evaluation of the testimony and other evidence and that juror's honest application of the law.

Role of the Judge

My role at the trial, the role of any judge, is to help assure a fair and orderly trial in accordance with our law. I do that by presiding over the trial, deciding questions of law that arise between/among the parties, and explaining to you, the jury, as I am now, what the law is that the jury must accept and follow.

Thus, we are both judges in this case. But it's important to recognize that we judge different things. You, the jury, judge the facts of the case in order to reach a verdict of guilty or not guilty, and I judge the law, meaning I decide questions of law and instruct the jury on the law.

It is not my responsibility to judge the facts here. It is yours. You and you alone are the judges of the facts, and you and you alone are responsible for deciding whether the defendant is guilty or not guilty.

So, nothing I say, or how I say it, and no ruling I make on the law, is intended to be, nor should it be, considered by you, as an expression of an opinion on the facts of the case or of whether the defendant is guilty or not guilty.

Evidence

When you judge the facts, you are to consider only the evidence. The evidence in the case includes:

testimony of the witnesses,

exhibits which are received in evidence, [and]

[any stipulation by the parties. (A stipulation is information the parties agree to present to the jury as evidence, without calling a witness to testify.)]

[Multiple Defendants ¹⁰

(Add if two or more defendants are on trial.)

There are (specify the number) defendants before you and we are thus conducting (specify the number) trials in one.

It is your obligation to evaluate the evidence as it applies, or fails to apply, to each defendant separately.

Each instruction on the law must be considered by you as referring to each defendant separately.

You must return a separate verdict for each defendant. And those verdicts may be, but need not be, the same.

It is your sworn duty to give separate consideration to the case of each individual defendant.]

Definition of: “Elements" of a Crime

During the trial, you will hear me and perhaps the lawyers use the term "elements” of a crime. Let me explain the meaning of that term. What constitutes a crime is defined by the written law of New York. Each written definition normally contains several parts, including generally, the specification of the conduct prohibited, the state of mind with which the conduct must be performed, and in some instances the result of the conduct. Those parts of the written definition of a charged crime, plus the identification of a person as the one who committed the crime charged, are what we mean by the term "elements” of the crime charged.

Presumption of Innocence

We now turn to the fundamental principles of our law that apply in all criminal trials―the presumption of innocence, the burden of proof, and the requirement of proof beyond a reasonable doubt. ¹¹

Throughout these proceedings, the defendant is presumed to be innocent.¹² As a result, you must find the defendant not guilty, unless, on the evidence presented at this trial, you conclude that the People have proven the defendant guilty beyond a reasonable doubt.¹³

[Defendant who does not testify ¹⁴

(Add, only if the defendant requests it.)

That a defendant does not testify as a witness is not a factor from which any inference unfavorable to the defendant may be drawn.]

Burden of Proof

The defendant is not required to prove that he/she is not guilty.¹⁵ In fact, the defendant is not required to prove or disprove anything.¹⁶ To the contrary, the People have the burden of proving the defendant guilty beyond a reasonable doubt.¹⁷ That means, before you can find the defendant guilty of a crime, the People must prove beyond a reasonable doubt every element of the crime including that the defendant is the person who committed that crime.¹⁸ The burden of proof never shifts from the People to the defendant.¹⁹ If the People fail to satisfy their burden of proof, you must find the defendant not guilty.²⁰ If the People satisfy their burden of proof, you must find the defendant guilty.²¹

Burden of Proof

(in cases with an affirmative defense)

NOTE: If the defendant has not “committed” to interposing an affirmative defense or the defendant expects to interpose an affirmative defense but at the voir dire stage, the jury will not be informed of the affirmative defense, the above standard instruction on reasonable doubt should be given.

The defendant is not required to prove or disprove any element of a charged crime.²² To the contrary, the People have the burden of proving every element of a charged crime beyond a reasonable doubt.²³ That means, before you can find the defendant guilty of a crime, the People must prove beyond a reasonable doubt every element of the crime including that the defendant is the person who committed that crime.²⁴ The burden of proof never shifts from the People to the defendant.²⁵ If the People fail to satisfy their burden of proof, you must find the defendant not guilty.²⁶ If the People satisfy their burden of proof of all of the elements of a crime, you²⁷ will then consider an affirmative defense, which I will explain shortly. First,

Reasonable Doubt

What does our law mean when it requires proof of guilt "beyond a reasonable doubt"?²⁸

The law uses the term, "proof beyond a reasonable doubt," to tell you how convincing the evidence of guilt must be to permit a verdict of guilty.²⁹ The law recognizes that, in dealing with human affairs, there are very few things in this world that we know with absolute certainty. Therefore, the law does not require the People to prove a defendant guilty beyond all possible doubt.³⁰ On the other hand, it is not sufficient to prove that the defendant is probably guilty.³¹ In a criminal case, the proof of guilt must be stronger than that.³² It must be beyond a reasonable doubt.³³

A reasonable doubt is an honest doubt of the defendant's guilt for which a reason exists based upon the nature and quality of the evidence.³⁴ It is an actual doubt, not an imaginary doubt.³⁵ It is a doubt that a reasonable person, acting in a matter of this importance, would be likely to entertain because of the evidence that was presented or because of the lack of convincing evidence.³⁶

Proof of guilt beyond a reasonable doubt is proof that leaves you so firmly convinced ³⁷ of the defendant's guilt that you have no reasonable doubt of the existence of any element of the crime or of the defendant's identity as the person who committed the crime.

In determining whether or not the People have proven the defendant's guilt beyond a reasonable doubt, you should be guided solely by a full and fair evaluation of the evidence. After carefully evaluating the evidence, each of you must decide whether or not that evidence convinces you beyond a reasonable doubt of the defendant's guilt.

Whatever your verdict may be, it must not rest upon baseless speculations. Nor may it be influenced in any way by bias, prejudice, sympathy, or by a desire to bring an end to your deliberations or to avoid an unpleasant duty.

Credibility of Witnesses

As judges of the facts, you alone determine the truthfulness and accuracy of the testimony of each witness. You must decide whether a witness told the truth and was accurate, or instead, testified falsely or was mistaken. You must also decide what importance to give to the testimony you accept as truthful and accurate. It is the quality of the testimony that is controlling, not the number of witnesses who testify.³⁸

I will instruct you further on this subject at the end of the trial.

Police Testimony

In this case you will hear the testimony of (a) police officer(s). The testimony of a witness should not be believed solely and simply because the witness is a police officer. At the same time, a witness's testimony should not be disbelieved solely and simply because the witness is a police officer. You must evaluate a police officer's testimony in the same way you would evaluate the testimony of any other witness.³⁹

[Identification]

(Add if expected to be in issue in lawyers’ voir dire)

The People have the burden of proving beyond a reasonable doubt, not only that a charged crime was committed, but that the defendant is the person who committed that crime.

Thus, even if you are convinced beyond a reasonable doubt that a charged crime was committed by someone, you cannot convict the defendant of that crime unless you are also convinced beyond a reasonable doubt that he/she is the person who committed that crime.⁴⁰

Add if one witness identification case:

Because the law is not so much concerned with the number of witnesses called as with the quality of the testimony given, the law does permit a guilty verdict on the testimony of one witness identifying the defendant as the person who committed the charged crime. A guilty verdict is permitted, however, only if the evidence is of sufficient quality to convince you beyond a reasonable doubt that all the elements of the charged crime have been proven and that the identification of the defendant is both truthful and accurate.⁴¹

I will instruct you further on this subject at the end of the trial.

[Accessorial Liability]

(Add if expected to be in issue in lawyers’ voir dire.)

Our law recognizes that two or more individuals can act jointly to commit a crime, and that in certain circumstances, each can be held criminally liable for the acts of the other(s). In that situation, those persons can be said to be "acting in concert" with each other.⁴²

Our law defines the circumstances under which one person may be criminally liable for the conduct of another. That definition is as follows:

When one person engages in conduct which constitutes an offense, another is criminally liable for such conduct when, acting with the state of mind required for the commission of that offense, he or she solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct.⁴³

I will instruct you further on this subject at the end of the trial.

Nature of Jury Deliberations

Your verdict, whether guilty or not guilty, must be unanimous; that is, each and every juror must agree to it. You must render a verdict separately and specifically upon each [count/charge] submitted to you.⁴⁴

Since [6/12] people seldom agree immediately on anything, to reach a unanimous verdict you must deliberate with the other jurors. That means you should discuss the evidence and consult with each other, listen to each other, give each other's views careful consideration, and reason together when considering the evidence.⁴⁵ And when you deliberate, you should do so with a view towards reaching an agreement if that can be done without surrendering individual judgment.⁴⁶

Each of you must decide the case for yourself, but only after a fair and impartial consideration of the evidence with the other jurors. You should not surrender an honest view of the evidence simply because you want the trial to end or you are outvoted. At the same time, you should not hesitate to reexamine your views and change your mind if you become convinced that your position was not correct.

NOTE: The court may wish to insert here the CJI2d charge on “admonitions” applicable to a juror’s conduct during trial, or the court may wish to integrate them with its questions of the jury panel and thereby determine whether a juror would have any problem in adhering to the required conduct.