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This Article will present what appears to be a workable system which allows fulfillment of both of the jury instruction functions-jury guidance and legal-theory-resolution-and which will simultaneously reduce the number of reversals due to judicial error in instructing the jury (the latter result may be anticipated in any system which is able to produce the former result). This Article proposes the abolition of the sua sponte duty of the trial judge except for certain basic instructions to be specified by statute or by rule of court. The proposal would retain for each advocate the opportunity to propose instructions reflecting his own theory of the case, and for the judge the responsibility to select or compose proper instructions. A judge believing that instructions beyond those proposed would be appropriate would still give those additional instructions. It would still be advisable for the court to confer with counsel before settling the instructions. The correctness and adequacy of instructions would still be reviewable on appeal. But the instruction process would case to be a trap and would resume its rightful functions of guidance and communication.


jury instructions

Publication Title

San Diego Law Review

Publication Citation

11 San Diego L. Rev. 325 (1974)