State v. Robinson

STEIN, J.,

concurring

In this appeal the Court considers whether criminal jury trial instructions on identification should be tailored to fit the facts of a case. The Court concludes that trial courts may, but are not required to, formulate jury instructions that include a balanced summary of the evidence on identification adduced at trial. Although I join the Court’s opinion, I write separately to encourage trial courts to include a balanced summary of the evidence in a criminal jury trial instruction whenever such an instruction would aid a jury in reaching a just result.

Trial courts in this state historically have been entrusted with the power to tailor jury instructions and to summarize the evidence presented at trial. See State v. Martin, 119 N.J. 2, 18 , 573 A.2d 1359 (1990)(“An abstract statement about causation or the defendant’s state of mind is not nearly so useful as one stating the *48 same idea in the context of the various factual alternatives projected by the parties.”); State v. Green, 86 N.J. 281, 294 , 430 A.2d 914 (1981) (suggesting that trial courts giving identification instruction briefly review “conflicting contentions” of parties regarding identification of defendant); State v. Parker, 33 N.J. 79, 94 , 162 A.2d 568 (1960)(“We approve, especially in a protracted trial, ... with its voluminous and conflicting testimony, of a trial court’s undertaking to point out to the jury the significant evidence in the ease.”); State v. Young, 97 N.J.L. 501, 507 , 117 A. 713 (E. & A.1922) (“It is not said [the facts] were untruly stated, but that their recital refreshed the minds of the jury. Every comment on evidence by the court has that effect, and it is not error when, as here, the jury is instructed to rely on their own recollection.”); State v. Overton, 85 N.J.L. 287, 294 , 88 A. 689 (E. & A.1913) (“[I]t is always the right, and in many cases the duty, of the trial judge to express freely the impressions made on his mind by the evidence, thus giving the jury the benefit of his judicial experience ... provided always the ultimate decision of disputed matters of fact is fairly left to them.”).

Federal district court judges, as “governorfs] of the trial,” also possess the common law power “to analyze, dissect, explain, summarize, and comment on the evidence.” Logue v. Dore, 103 F.3d 1040, 1045 (1st Cir.1997).

The American Bar Association’s Criminal Justice Trial by Jury Standards encourages judges, when necessary, to explain the relationship of evidence to the legal issues. ABA Criminal Justice Trial By Jury Standards 15-4.2 at 223 (3d ed.1996). Standard 15-4.2, “Right of judge to give assistance to the jury during trial,” states as follows:

(a) The court should not express or otherwise indicate to the jury his or her personal opinion whether the defendant is guilty or express an opinion that certain testimony is worthy or unworthy of belief.

(b) When necessary to the jurors’ proper understanding of the proceedings, the court may intervene during the taking of the evidence to instruct on a principle of law or the applicability of the evidence to the issues. This should be done only when the jurors cannot be effectively advised by postponing the explanation to the time of giving final instructions.

*49 (c) The development of innovative mechanisms to improve juror comprehension of the issues of the case and the evidence presented should be encouraged consistent with the rules of evidence and the rights of the parties.

[Ibid, (emphasis added).]

As the majority notes, the most recent model jury charge on identification permits trial courts to “comment on any evidence relevant to any of the ... factors” that a jury may consider, including, for instance, the opportunity of the witness to view the offender and factors relating to cross-racial identification. Ante at 42, 754 A.2d at 1159. Like the majority, I acknowledge that the decision whether to comment on the evidence properly is remitted “to the sound discretion of the trial court.” Ante at 42, 754 A.2d at 1159. I further agree with the majority that trial counsel, not the trial court, ultimately is responsible for persuading the jury to adopt counsel’s interpretation of the evidence. Ante at 45, 754 A.2d at 1160.

However, the trial court has the non-delegable responsibility for ensuring the fairness of the trial. As commentators have discussed, jury instructions frequently are misunderstood by juries and thus must be carefully crafted by trial courts to ensure that they fairly and clearly convey the law to the jury. See generally Joel D. Lieberman & Bruce D. Sales, What Social Science Teaches Us About the Jury Instruction Process, 3 Psychol. Pub. Pol’y & L. 589 (1997) (reviewing empirical research on effectiveness of jury instructions); Peter Meijes Tiersma, Reforming the Language of Jury Instructions, 22 Hofstra L.Rev. 37, 41-44 (1993) (stating that “[mjueh research by linguists, psychologists and others has confirmed that jurors tend to have great difficulty understanding the instructions that are supposed to guide their decisionmaking”); William W. Schwarzer, Communicating with Juries: Problems and Remedies, 69 Cal. L.Rev. 731, 743 (1981)(concluding that “the jury’s capacity to serve as a repository of the people’s sense of justice, reason, and fair play is being questioned” and suggesting ways to improve juror comprehension).

*50 One change among many that commentators have recommended to improve juror comprehension is that trial courts incorporate a summary of the evidence in juror instructions. Jack B. Weinstein, a distinguished judge of the United States District Court for the Eastern District of New York, has argued persuasively that judicial summaries of the evidence aid in the pursuit of fairness. Jack B. Weinstein, The Power and Duty of Federal Judges to Marshall and Comment on the Evidence in Jury Trials and Some Suggestions on Charging Juries, 118 F.R.D. 161 , 166 (1988). See also Christopher N. May, “What Do We Do Now?”: Helping Juries Apply the Instructions, 28 Loy. L.A.L.Rev. 869, 870 (1995) (encouraging trial judges to “weave the evidence into the instructions, or use the threat of doing so to induce counsel to link the evidence to the law in their closing arguments”). According to Judge Weinstein, a judicial summary of the evidence can “clarify what may have been distorted by the bias of counsel’s arguments” and “can increase the jury’s ability to understand the proceedings it has attended, and thus increase the accuracy of verdicts.” Weinstein, supra, 118 F.R.D. at 166. Another commentator has argued that trial courts should summarize the evidence in tailored jury instructions because “when the facts illuminate the abstract legal concepts set forth in the instructions, jurors’ understanding of the law greatly improves.” May, supra, 28 Loy. L.A.L.Rev. at 892. Additionally, “by utilizing the facts to illustrate the law, the jury’s ability to use the instructions in a systematic manner is enhanced, reducing the possibility that it may overlook key elements or evidence critical to the outcome of the ease.” Id. at 893.

Although trial courts understandably may be hesitant to summarize the evidence for fear of saying too much, too little, or being unbalanced, thereby providing a potential basis for reversal, trial judges should not reflexively permit those concerns to prevail over the potential benefits of tailored jury charges. We have observed that “our judges are made of sterner stuff’ than to act out of fear of reversal. Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 541 , 666 A.2d 146 (1995). Submissions to counsel at the charge conference of a proposed instruction that incorporates a *51 balanced summary of the evidence should diminish the likelihood that that summary will afford a basis for reversal. See Weinstein, supra, 118 F.R.D. at 170 (stating that proposed summary of evidence should be discussed at charge conference and that “actual process of summarizing ... the evidence can be similar to the process of instructing the jury on the law in a jury charge”); R. 1:8-7 (requiring trial courts to “hold a charge conference on the record in all criminal cases” and stating that “[a]t the conference the court shall advise counsel of the offenses, defenses and other legal issues to be charged and shall rule on requests made by counsel”).

Although I am satisfied that the trial court’s charge in this case was not prejudicially unbalanced in favor of the State, the issue would not have arisen if the trial court had included in its instruction a balanced summary of all the material evidence on the question of identification. This record indicates that defense counsel adequately focused the jury’s attention on the evidence that favored defendant.

The arguments of counsel, however, will not always be an adequate substitute for a methodical and impartial summary of the material evidence by the trial court. Even though not necessary in every criminal trial, inclusion of a balanced summary of the evidence in a court’s jury charge generally will enhance the jury’s ability to weigh the evidence and return a just verdict. In my view, the value of a fair summary of the evidence to the deliberations of an informed jury substantially outweighs the burden of formulating the charge and the slight risk of an adverse reaction by counsel. I am fully in agreement with Judge Weinstein’s conclusion on the issue:

Despite the occasional mishaps [that] can result from use of the summary ... power, most difficulties can be avoided by a trial judge who employs cautious procedures and a measure of common sense. Taking advantage of the power to summarize ... is one means of keeping jury trials fair, jury verdicts reasonable, and jurors a little less confused.

[Weinstein, supra, 118 F.R.D. at 188.]