WPIC1.01Advance Oral Instruction—Beginning of Proceedings
11 WAPRAC WPIC 1.01Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 1.01 (4th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
October 2016 Update
Part I. General Instructions
WPIC CHAPTER 1. Introductory Instructions
WPIC 1.01 Advance Oral Instruction—Beginning of Proceedings
Part 1—Before Questioning of Prospective Jurors:
This is a criminal case brought by the [State] [City] [County] [against the defendant,(name of defendant)]. The [State] [City] [County] is represented by(name of prosecuting attorney). The defendant in this case is represented by(name of defense attorney).
You have already met [Mr.] [Ms.](name), our court bailiff. The bailiff's job is to assist you. If there is anything we can do to better accommodate you as a juror, please let the bailiff know. [Mr.] [Ms.](name)will help you with any problems you may have related to jury service. Do not, however, ask [him] [her] anything about the facts or law in this case. Please follow any instructions that [he] [she] gives you.
The court clerk is [Mr.] [Ms.](name). The clerk's job is to mark and handle exhibits and other significant papers.
[The court reporter is [Mr.] [Ms.](name). It is the court reporter's job to take verbatim notes of the proceedings.]
[In this courtroom we record all proceedings with a [video] [audio] recording system. All of the proceedings are preserved to create a “court record.”]
The defendant is charged [in count] with the crime of(name of crime). Specifically, this charge alleges that(insert elements from the information, and supplement as appropriate with other facts that will help the jurors prepare for voir dire; see Note on Use). (Repeat for each count.)
Keep in mind that a charge is only an accusation. The filing of a charge is not evidence that the charge is true. Your decisions as jurors must be made solely upon the evidence presented during these proceedings.
To the charge[s] of [(name of crime)], the defendant has entered a plea of not guilty. The plea of not guilty means that you, the jury, must decide whether the [State] [City] [County] has proved every element of [the] [each] crime charged. The [State] [City] [County] has the burden of proving every element beyond a reasonable doubt. The defendant has no burden of proving that a reasonable doubt exists. The defendant has no duty to call witnesses, produce evidence, or testify.
The defendant is presumed to be innocent. The presumption of innocence continues throughout the entire trial. The presumption means that you must find the defendant not guilty unless you conclude at the end of your deliberations that the evidence has established the defendant's guilt beyond a reasonable doubt.
A reasonable doubt is one for which a reason exists. It may arise from the evidence or lack of evidence. A reasonable doubt is a doubt that would exist in the mind of a reasonable person after fully, fairly, and carefully considering all of the evidence or lack of evidence. [If, from such consideration, you have an abiding belief in the truth of the charge, you are satisfied beyond a reasonable doubt.]
The first stage of the trial is jury selection, which is sometimes called voir dire.
The purpose of this process is to make sure that we select a jury that is free from any outside or pre-existing bias that might interfere with the jury's ability to fairly decide the case based on the evidence and the law that you receive in this courtroom.
It is important that you discharge your duties without discrimination, meaning that bias regarding the race, color, religious beliefs, national origin, sexual orientation, gender, or disability of any party, any witnesses, and the lawyers should play no part in the exercise of your judgment throughout the trial. These are called “conscious biases”—and, when answering questions, it is important, even if uncomfortable for you, to share these views with the lawyers.
However, there is another more subtle tendency at work that we must all be aware of. This part of human nature is understandable but must play no role in your service as jurors. In our daily lives, there are many issues that require us to make quick decisions and then move on. In making these daily decisions, we may well rely upon generalities, even what might be called biases or prejudices. That may be appropriate as a coping mechanism in our busy daily lives but bias and prejudice can play no part in any decisions you might make as a juror. Your decisions as jurors must be based solely upon an open-minded, fair consideration of the evidence that comes before you during trial.
In a moment, I am going to ask you some background questions and the lawyers will also have a chance to follow up with some questions of their own. Most importantly, you are to look within yourselves and see if there is anything there in your life experiences or your personal beliefs that might be such a strong influence that it would overcome your ability to serve as a fair and impartial juror. These questions may sometimes involve issues that are sensitive for you. If you are uncomfortable answering any particular question in front of the other jurors, please let me know or notify the bailiff. We may then discuss other ways to handle this question.
At the conclusion of the trial, I will instruct you on the law in what are called “jury instructions”. These instructions are binding on you regardless of what you personally believe the law is or ought to be. During deliberations, the job of the jury will be to apply the law to the facts you find have been proven to determine whether the [State] [County] [City] has overcome the presumption of innocence and proved the charge(s) against the defendant beyond a reasonable doubt.
The purpose of jury selection is to determine if you have the open frame of mind that is needed to fairly serve as a juror.
Before any questions are asked, an oath or affirmation will be administered. All of your answers must be open, honest, and forthright. At this time, I ask that you please rise, raise your right hand, and [I] [the clerk] will administer this oath.
Do you solemnly swear or affirm that you will truthfully answer questions as may be asked of you by the court or the attorneys concerning your qualifications to act as jurors in this case? [Please respond].
(The judge then explains for jurors how jury selection will be conducted, including the number of peremptory challenges, and jury selection begins.)
Part 2—Following Jury Selection:
(The jurors are given an oath or affirmation for purposes of the trial:)
Do each of you solemnly swear or affirm that you will fairly try the issues in this case according to the evidence and the instructions from the court [, so help you God]? [Did any of you answer “no” or not answer?]
I will now explain the procedure to be followed during the trial.
First: The prosecuting attorney may make an opening statement outlining the testimony of witnesses or other evidence that [he] [she] expects to be presented during the trial. The defense attorney may then make an opening statement or may choose to make an opening statement later.
Next: The prosecuting attorney will present the testimony of witnesses or other evidence to you. When the prosecuting attorney has finished, the defense attorney may, but need not, present the testimony of witnesses or other evidence. Each witness who testifies may be cross-examined by the lawyer for the other side.
Next: When all of the evidence has been presented to you, I will instruct you on what law applies to this case. I will read the instructions to you. You will have [individual copies of] the written instructions with you in the jury room during your deliberations.
Next: The lawyers will make closing arguments.
Finally: You will be taken to the jury room by the bailiff where you will select a presiding juror. The presiding juror will preside over your discussions of the case, which are called deliberations. You will then deliberate in order to reach a decision, which is called a verdict. Until you are in the jury room for those deliberations, you must not discuss the case with the other jurors or with anyone else, or remain within hearing of anyone discussing it. “No discussion” also means no emailing, text messaging, blogging, or any other form of electronic communication.
It is your duty as a jury to decide the facts in this case based upon the evidence presented to you during the trial. Evidence is a legal term. Evidence includes testimony of witnesses, documents, and physical objects.
It also is your duty to accept the law from my instructions, regardless of what you personally believe the law is or what you think it ought to be. You are to apply the law from my instructions to the facts, and in this way decide the case.
The only evidence you are to consider consists of testimony of witnesses and exhibits admitted into evidence. When witnesses testify, please listen very carefully. You will need to remember testimony during your deliberations because testimony will rarely, if ever, be repeated for you. Any exhibits admitted into evidence will go to the jury room with you during your deliberations.
The lawyers' remarks, statements, and arguments are intended to help you understand the evidence and apply the law. However, the lawyers' statements are not evidence or the law. The evidence is the testimony and the exhibits. The law is contained in my instructions to you. You must disregard anything the lawyers say that is at odds with the evidence or the law in my instructions.
You may hear objections made by the lawyers during trial. Each party has the right to object to questions asked by another lawyer, and may have a duty to do so. These objections should not influence you. Do not make any assumptions or draw any conclusions based on a lawyer's objections.
One of my duties as judge is to decide whether or not evidence should be admitted during this trial. What this means is that I must decide whether or not you should consider evidence offered by the parties. For example, if a party offers a photograph as an exhibit, I will decide whether it is admissible. Do not be concerned about the reasons for my rulings. You must not consider or discuss any evidence that I do not admit or that I tell you to disregard.
Our state constitution prohibits a trial judge from making a comment on the evidence. Because it is your role to evaluate the evidence, it would be improper for me to express, by words or conduct, my personal opinion about the value of a particular witness's testimony or an exhibit. I will not intentionally do this. If it appears to you that I have indicated in any way my personal opinion concerning any evidence, you must disregard this entirely.
[Mr.] [Ms.](name)will help you with any problems you may have related to jury service. Do not, however, ask [him] [her] anything about the facts or law in this case.
You will be allowed to take notes during the trial. Whether or not you do so is entirely your own decision. If you do choose to take notes, you should make sure that it does not interfere with your ability to listen to and observe the witnesses.
At an appropriate time, the bailiff will provide a note pad and a pen or pencil to each of you. Your juror number will be on the front page of the note pad. You must take notes on this pad only, not on any other paper. You must not take your note pad from the courtroom or the jury room for any reason. When you recess during the trial, please(insert appropriate direction; see Note on Use). At the end of the day, the note pads must be left(insert appropriate direction; see Note on Use). While you are away from the courtroom or the jury room, no one else will read your notes.
You must not discuss your notes with anyone or show your notes to anyone until you begin deliberating on your verdict. This includes other jurors. During deliberation, you may discuss your notes with the other jurors or show your notes to them.
You are not to assume that your notes are necessarily more accurate than your memory. I am allowing you to take notes to assist you in remembering clearly, not to substitute for your memory. You are also not to assume that your notes are more accurate than the memories or notes of the other jurors.
After you have reached a verdict, your notes will be collected and destroyed by the bailiff. No one will be allowed to read them.
Throughout this trial, you must come and go directly from the jury room. Do not remain in the hall or courtroom, as witnesses and parties may not recognize you as a juror, and you may accidentally overhear some discussion about this case. I have instructed the lawyers, parties, and witnesses not to talk to you during trial.
It is essential to a fair trial that everything you learn about this case comes to you in this courtroom, and only in this courtroom. You must not allow yourself to be exposed to any outside information about this case, including from your family and friends. Do not permit anyone to discuss or comment about it in your presence, and do not remain within hearing of such conversations. You must keep your mind free of outside influences so that your decision will be based entirely on the evidence presented during the trial and on my instructions to you about the law.
Until you are dismissed at the end of this trial, you must avoid outside sources such as newspapers, magazines, blogs, the internet, or radio or television broadcasts which may discuss this case or issues involved in this trial. If you start to hear or read information about anything related to the case, you must act immediately so that you no longer hear or see it. If you become aware that you or another juror has been exposed to outside information, you must privately notify [the bailiff] [(insert other applicable staff person)]; do not discuss these matters with other jurors.
By giving this instruction I do not mean to suggest that this particular case is newsworthy; I give this instruction in every case.
During the trial, do not try to determine on your own what the law is. Do not seek out any evidence on your own. Do not consult dictionaries or other reference materials. Do not conduct any research into the facts, the issues, or the people involved in this case. This means you may not use [Google or other internet search engines] [internet resources] to look into anything at all related to this case. Do not inspect the scene of any event involved in this case. If your ordinary travel will result in passing or seeing the location of any event involved in this case, do not stop or try to investigate. You must keep your mind clear of anything that is not presented to you in this courtroom.
During the trial, do not provide information about the case to other people, including any of the lawyers, parties, witnesses, your friends, members of your family, or members of the media. If necessary, you may tell people (such as your employer or your child's daycare provider) that you are a juror and let them know when you need to be in court. If people ask you for more details, you should tell them that you are not allowed to talk about the case until it is over.
I want to emphasize that the rules prohibiting discussions include your electronic communications. You must not send or receive information about anything related to the case by any means, including by text messages, email, telephone, internet chat, blogs, or social networking web sites. Do not even mention being on a jury when using social media, such as updating your status on Facebook or sending a message on Twitter. You don't want to do anything that will invite others to talk to you about your jury duty.
In short, do not communicate with anyone, by any means, concerning what you see or hear in the courtroom, and do not try to find out more about anything related to this case, by any means, other than what you learn in the courtroom. These rules ensure that the parties will receive a fair trial. If you have any questions about these restrictions, please contact [the bailiff] [(insert other applicable staff person)].
If you become exposed to any information other than what you learn in the courtroom, it could be grounds for a mistrial. A mistrial would mean that all of the work that you and your fellow jurors put into this trial will be wasted. Retrials are costly and burdensome to the parties and the public. Also, if you communicate with others in violation of my orders, you could be fined or held in contempt of court.
After you have delivered your verdict, you will be free to do any research you choose and to share your experiences with others.
[Remember that all phones, laptops, and other electronic devices must be turned off and may not be used while you are in court and while you are in deliberations.]
Throughout the trial, you must maintain an open mind. You must not form any firm and fixed opinion about any issue in the case until the entire case has been submitted to you for deliberation.
As jurors, you are officers of this court. As such, you must not let your emotions overcome your rational thought process. You must reach your decision based on the facts proved to you and on the law given to you, not on sympathy, prejudice, or personal preference. To assure that all parties receive a fair trial, you must act impartially with an earnest desire to reach a just and proper verdict.
To accomplish a fair trial takes work, commitment, and cooperation. A fair trial is possible only with a serious and continuous effort by each one of us.
Thank you for your willingness to serve this court and our system of justice.
NOTE ON USE
This is not one of the written instructions on the law. Part 1 of this instruction is to be read to the jury panel before the jury is selected. Part 2 is to be read after the jury has been selected. The jurors will already have received a Jurors' Information Guide, which contains some of this same information. See CrR 6.2. This guide is available at www.courts.wa.gov.
The instruction sets forth the basic information that jurors need to know before and after voir dire. Many judges will want to adapt the instruction to fit their own procedures and needs.
Except when the novelty or complexity of the charges make it difficult to do so, the judge should state the elements of the charged crime or crimes with as much specificity as possible. It may be appropriate in describing the crime charged in the second paragraph to give the name of the alleged victim and the time and place in order to provide background for voir dire questioning as to prior knowledge of the incident. Lawyers may want to ask the court for a conference prior to the use of this instruction if they object to any part of it.
The instruction's fourth paragraph states that the defendant has no burden of proving that a reasonable doubt exists. For any case involving an affirmative defense, the instruction should be modified to clarify that the defendant, while having no burden to disprove the elements of the crime, bears the burden of proof for the affirmative defense.
This instruction contains a paragraph defining reasonable doubt. Within that paragraph, the bracketed sentence should be used if it will be included in the final written instructions to the jury. See related discussion in the Comment to WPIC 4.01 (Burden of Proof—Presumption of Innocence—Reasonable Doubt).
Juror notepads may be distributed either before or after opening statements. If notepads are distributed before opening statements, the judge should advise jurors to carefully distinguish in their notes between argument of counsel and evidence. The paragraphs addressing juror note-taking include two blank spaces. In the first, insert an appropriate instruction to jurors regarding where to leave their notes during court recesses, such as “leave your notepad on your chair” or “take your note pad with you to the jury room.” In the second, insert an appropriate instruction regarding where jurors are to leave their note pads at the end of the day, such as “in the jury room” or “on your chair.”
The WPI Committee revised this instruction in 2018.
Voir Dire. The term voir dire has been replaced by jury selection in several places in the instruction for the purpose of better juror comprehension. No substantive change is intended.
Unconscious and conscious bias. This instruction incorporates, in several places, new language concerning both unconscious and conscious bias.
In drafting the language on implicit and explicit bias, the WPI Committee carefully reviewed the preliminary oral instructions recently adopted for use in criminal cases in the United States District Court, Western District of Washington. There are slight modifications and additions designed, in part, to avoid the state constitutional provision on commenting on the evidence. Wash. Const. art IV, § 16. The original instructions from the district court are set forth at http://www.wawd.uscourts.gov/jury/unconscious-bias (last visited November 15, 2017).
A trial court is not constitutionally-required to sua sponte question potential jurors about potential racial bias or to instruct on such issues. State v. Davis, 141 Wn.2d 798, 826–34, 10 P.3d 977 (2000) (death penalty case). The Davis court discussed the possibility of “unnecessarily bringing [issues of race] to the attention of jurors” by such inquiry when not requested by defense counsel. Davis relied heavily on jurisprudence from the United States Supreme Court, in particular on the death penalty case of Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986), and contains a thorough review of federal case law. The United States Supreme Court in Peña-Rodriguez v. Colorado,U.S. , 137 S.Ct. 855, 869, 197 L.Ed.2d 107 (2017), concluded that the general rule against impeaching a jury verdict must fall when a juror has indicated that he or she relied on racial animus or stereotypes in reaching the verdict. In Turner v. Stime, 153 Wn.App. 581, 222 P.3d 1243 (2009), the court concluded that statements of clear racial bias made by a juror concerning plaintiff's counsel do not “inhere in the verdict” and that it was proper for the trial court to grant a new trial upon proof that such statements were made.
The Washington Supreme Court has emphasized the dangers of racial bias impacting the fairness of a trial. For example, in State v. Monday, 171 Wn.2d 667, 257 P.3d 551 (2011), the court unanimously reversed a conviction for prosecutorial misconduct in referring to an “anti-snitch code” allegedly prevalent in the African-American community, concluding that when racial bias is shown, it becomes the State's burden to show harmlessness beyond a reasonable doubt. See also City of Seattle v. Erickson, 188 Wn.2d 721, 398 P.3d 1124 (2017) (when the sole member of a racially cognizable group has been subject to a preemptory challenge by the State, a prima facie case of discriminatory purpose has been established).
Questioning jurors individually. The subject matter of the trial may make it necessary to conduct individual questioning on particularly sensitive or private matters. If a juror expresses discomfort in answering such questions in front of the entire panel or if the court determines that all jurors should be questioned individually given the subject matter, individual questioning can occur. Individual questioning may also be warranted when there is a concern that the panel may be unduly influenced by the answers of other potential jurors or if there has been substantial media interest in the case. However, the courtroom must not be closed to the public unless the Ishikawa factors are met and the court's findings included in the record. Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 640 P.2d 716 (1982). Accord, State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995).
Absent Ishikawa findings on the record, the courtroom is open during individual questioning of prospective jurors to all members of the public and to the media. It is only the other jurors who are not present for the individual questioning. See State v. Strode, 167 Wn.2d 222, 217 P.3d 310 (2009). It should be noted that when a juror questionnaire is used as part of jury selection, review of the completed questionnaire in chambers, as a general rule, does not violate the clear mandate of the Washington Constitution, article I, § 10 that “justice in all cases shall be administered openly.” State v. Slert, 181 Wn.2d 598, 602–608, 334 P.3d 1088 (2014). Although the Supreme Court in Slert reversed the Court of Appeals as to its specific conclusion, the Court of Appeals decision does contain a thorough discussion of the law in this area. State v. Slert, 169 Wn.App. 766, 282 P.3d 101 (2012).
Allegation of improper exercise of a peremptory challenged based on membership in a protected class. It is improper to exercise a peremptory challenge based on a prospective juror's race or gender. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed. 2d 69 (1986); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed. 2d 89 (1994). Under the constitutional standard established by these cases, establishing a violation involves a three-step process. The opposing party must make a prima facie showing of purposeful discrimination. If such a showing is made, the party who made the challenge must come forward with a neutral explanation. The court must then determine if purposeful discrimination has been established. Batson v. Kentucky, 476 U.S. at 93–98; see City of Seattle v. Erickson, 188 Wn.2d 721, 398 P.3d 1124 (2017).
When peremptory challenges are allegedly based on race or ethnicity, the Washington Supreme Court has required more intensive scrutiny. This requirement is set out in GR 37. An opposing party may object to a peremptory challenge simply by citing the rule. GR 37(c). The party who made the challenge must then articulate the reasons for the challenge. GR 37(d).
The court shall then evaluate the reasons given to justify the peremptory challenge in light of the totality of circumstances. If the court determines that an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge, then the peremptory challenge shall be denied.
Jury nullification. The instruction requires jurors to accept the law that they receive from the judge, regardless of jurors' beliefs about the law. This requirement is based on Article IV, section 16 of the Washington Constitution, which provides: “Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law.” Criminal defendants are not entitled to an instruction that allows jurors to nullify the law. See State v. Meggyesy, 90 Wn.App. 693, 697–706, 958 P.3d 319 (1998), abrogated on other grounds as recognized in State v. Recuenco, 154 Wn.2d 156, 110 P.3d 188 (2005); State v. Bonisisio, 92 Wn.App. 783, 794, 964 P.2d 1222 (1998).
Nor does federal law support jury nullification. Although jurors have historically had the power to acquit in nullification of the law, primarily due to the unassailability of jury verdicts of acquittal, jurors do not have the right to do so and have a duty to follow the law. See, e.g., Merced v. McGrath, 426 F.3d 1076, 1079 (9th Cir. 2005) (citing Sparf v. United States, 156 U.S. 51, 102, 15 S.Ct. 273, 39 L.Ed. 343 (1895)). Courts should instruct jurors in a manner that does not allow for nullification:
[I]nasmuch as no juror has a right to engage in nullification-and, on the contrary, it is a violation of a juror's sworn duty to follow the law as instructed by the court-trial courts have the duty to forestall or prevent such conduct, whether by firm instruction or admonition or, where it does not interfere with guaranteed rights or the need to protect the secrecy of jury deliberations, … by dismissal of an offending juror from the venire or the jury.
Merced v. McGrath, 426 F.3d at 1079–80 (quoting United States v. Thomas, 116 F.3d 606, 616, (2d Cir. 1997)).
Unlike Washington's constitution, a few state constitutions expressly allow criminal juries to determine the law. See, e.g., Ore. Const. Art. I, § 16; Ga. Const. Art. I, § I, Para. XI; Ind. Const. Art. 1, § 19; Md. Declaration of Rights, Art. 23. Also, some state constitutions allow juries to determine the law in more limited circumstances, such as for libel cases. See, e.g., N.Y. Const. Art. I, § 8; Colo. Const. Art II, § 10; Wisc. Const. Art. I, § 3. Consideration of another state's statutes and judicial opinions on jury nullification must be done with a careful view as to the differing constitutional provisions.
Reading of charges. The Washington State Jury Commission recommended that juries in criminal cases be instructed, before the trial begins, as to the basic elements of the charges and defenses. Washington State Jury Commission's Report to the Board for Judicial Administration, Recommendation 27 (July 2000) (a copy of the recommendation is included in 11A, Wash.Prac., Pattern Jury Instr. Crim. Appendix H (4th ed.).
One way for this to take place is for the jury to hear the detailed allegations contained in the charging information, which set forth the necessary elements of the charge. When doing so, the judge may also include other facts that will assist the jurors in preparing to answer voir dire questions, including the name of the alleged victim and the time and place of the alleged crime.
Presumption of innocence. In State v. Tharp, 27 Wn.App. 198, 616 P.2d 693 (1980), affirmed 96 Wn.2d 591, 637 P.2d 961 (1981), the court approved inserting the words “during your deliberations” in the paragraph on presumption of innocence to avoid any suggestion that the presumption could be overcome before all the evidence is in. The WPI Committee has further refined this phrase to read “at the end of your deliberations.”
Jurors not having a role in punishment. Except in death penalty cases, jurors do not impose punishment. Accordingly, it is error to instruct jurors that the death penalty is not being sought. See State v. Townsend, 142 Wn.2d 838, 15 P.3d 145 (2001) (holding that it is error to inform the jury during voir dire in a first degree murder case that the death penalty is not being sought); State v. Hicks, 163 Wn.2d 477, 181 P.3d 831 (2008) (upholding Townsend); State v. Mason, 160 Wn.2d 910, 929–31, 162 P.3d 396 (2007) (finding harmless error based on Townsend, but indicating an openness for reconsidering Townsend in a future case), overruled on other grounds in Giles v. California, 554 U.S. 353, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008); State v. Murphy, 86 Wn.App. 667, 937 P.2d 1173 (1997) (in a noncapital case, the jury may not be informed about the punishment for the crime charged); State v. Forbes, 43 Wn.App. 793, 719 P.2d 941 (1986); State v. Portnoy, 43 Wn.App. 455, 718 P.2d 805 (1986).
The opinions in State v. Rice, 110 Wn.2d 577, 610–13, 757 P.2d 889 (1988), opinion vacated in part on other grounds in Rice v. Wood, 77 F.3d 1138 (9th Cir. 1996), and State v. Mak, 105 Wn.2d 692, 750–51, 718 P.2d 407 (1986), overruled in part on other grounds in State v. Hill, 123 Wn.2d 641, 870 P.2d 313 (1994), discuss the use of WPIC 1.02 in the penalty phase of capital cases. Also see WPIC 31.03 (Introductory Instruction (Capital Case)).
Reasonable doubt. See WPIC 4.01 (Introduction), relating to reasonable doubt.
Evidence. In State v. Barry, 179 Wn.App. 175, 317 P.3d 528 (2014), affirmed 183 Wn.2d 297, 352 P.3d 161 (2015), the court held that it was error to tell the jury that “evidence includes what you witness in the courtroom” in response to a question received from the jury during deliberations asking whether the jury could consider the defendant's actions and demeanor during trial as evidence. In Barry, the jury had received an instruction modeled on WPIC 1.02 (Conclusion of Trial—Introductory Instruction) stating that the only evidence they were to consider was the testimony of witnesses and exhibits admitted into evidence—the same language found in WPIC 1.01. State v. Barry, 179 Wn.App. at pages 179–180.
[Current as of October 2018.]
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