WPI 6.13.01 Corrected Instruction of Law

The court should give each party an opportunity to comment and make objections before giving this and its included instruction. The corrected instruction then replaces the withdrawn instruction in the jury room. Do not send this oral instruction to the jury room in writing.

If an instruction is withdrawn and no substitute instruction is given, this instruction must be modified accordingly.

If this instruction is used it should be made a part of the record. The judge and attorneys should make a full record of the proceedings.

CR 51(i); CRLJ 51(i).

The court rules require that, after the jury has begun its deliberations, “[a]ny additional instruction upon any point of law shall be given in writing.” If the corrected instruction is being given in response to a question from a deliberating jury, see the other procedures required under CR 51(i) and CRLJ 51(i).

Numerous cases from other states establish the basic propositions that (1) judges may correct erroneous instructions at any time prior to verdict, and (2) jurors are ordinarily presumed to follow the corrected instructions, thereby curing the original error or rendering it harmless. See generally 75B Am.Jur.2d Trial § 1481 (1992). Only two cases from other jurisdictions hold that an erroneous instruction could not be cured by substituting a correcting instruction during jury deliberations. Both of these cases involved criminal law. In each case, the court held that the accused had been so prejudiced by the erroneous instruction that a correcting instruction was an inadequate remedy. See U.S. v. Oliver, 766 F.2d 252 (6th Cir. 1985); Schultz v. Yeager, 293 F.Supp. 794 (D.N.J.1967), affirmed, 403 F.2d 639 (3d Cir. 1968).

In Washington, our guidance regarding correcting instructional error comes primarily from criminal cases. In State v. Badda, 68 Wn.2d 50, 411 P.2d 411 (1966), the trial court corrected a verdict form that mistakenly listed the wrong crime. The court held that the verdict form could be corrected even after the jury announced its verdict, as long as the trial court had not yet formally accepted and filed the verdict. The Badda court held that the subsequent instruction fully cured any prejudice to the defendant. Badda, 68 Wn.2d at 60–64.

In another criminal case, however, the court emphasized that curative instructions may not always be sufficient to correct previous instructional errors. In State v. Corn, 95 Wn.App. 41, 975 P.2d 520 (1999), the Court of Appeals stated that “the court examines the facts of each case to determine the prejudice to the defendant and the likelihood that the curative instruction corrected the error in a timely fashion.” In Corn, the trial court had misinstructed the jury on the law of self-defense by omitting consideration of the defendant's subjective belief of imminent harm from the victim. The trial court issued a correcting instruction, but after the jury returned a guilty verdict the trial court granted a new trial. The Court of Appeals affirmed this ruling as being within the bounds of trial court discretion.

In a third criminal case, State v. Hobbs, 71 Wn.App. 419, 859 P.2d 73 (1993), the trial court committed reversible error when it eliminated venue from the elements instruction after the jury had begun its deliberations. Even though the defense was allowed to reargue the case to the jury, the defense had already based its cross-examination strategy on the prosecution's submitted instructions.

The only civil case in Washington addressing a correcting instruction is Stanley v. Allen, 27 Wn.2d 770, 180 P.2d 90 (1947). The trial court erred by amending an instruction in a manner that added a new issue to the case beyond those formally pleaded and that inaccurately suggested which party had the burden of proof. Stanley, 27 Wn.2d at 782–84. Stanley therefore merely stands for the proposition that a “correcting” instruction will not be upheld on appeal when it in fact incorrectly states the law.