Legal Research on Rule 30

    i)URE

time of
s, cAs

t.cidint
I lest to
ng lhat
,t must
I mo6t
, p€rmit
'd was

\latc3 v

, quittal,
ar orablc
q77, DC

:t. The
''ermit-

s4-64,

i+
i

i?
,.,t.tt
-f
v

r,,i

i the
.leral
rtion
Irade
rvith

Rl'

rule
;ern-
'his.
'y in

\osed
r it tee
cd if
,n in
.'l her
It to
The

nitial
nited

TRUP

Tnrel Rule 30

APPROVAL AND EFFECTIVE DATE OF RULE

The enactment of this Rule by Order of Apr. 22, 1974, became effective Dec.
l, 1975, as provided by $ 2 of Act July 31, 1975, which also approved said
Order of Apr.22, 1974; see note to Rule 4.

INTERPRETIVE NOTES AND DECISIONS

ln responding to jury's requcst that ccrtain
evidence be reread, trial court has broad discre-
tion and court did not err in refusing to permit
defendant additional summations as result of
rereading where format for final arguments set-
out in Rule 29.1 was properly followed. United
States v Alfonso (1977, CA5 Fla) 552 F2d 605,
reh den (CA5 Fla) 554 F2d 1065 and cerl den
414 US 857, 54 L Ed 2d 129, 98 S Ct 179 and
cert den 434 US 922, 54 L Ed 2d 279, 98 S Ct
398, reh den 434 US 1002, 54 L Ed 2d 499,98 S

ct 649.

Under prior law, order of argument by coun-
sel was entirely within discretion of court.
United States v El Rancho Adolphus Products,
Inc. (1956, DC Pa) l4O F Supp 645, atrd (CA3

Rule 30. Instructions
At the close of the evidence or at such earlier time during the trial as the
c@ party may file written requests that the court
instruct the jury on the law as set forth in the requests. At the same time
copies of such requests shall be furnished to adverse parties. The court
shall inform counsel of its proposed action upon the requests prior to their
arguments to the jury, but the court shall instruct the jury after the
arguments are completed. No party may assign as error any portion of the
charge or omission. therefrom y
retires to consider its verdict, stating distinctly the matter to whrch he
o . Opportuni@
make the-objection out of the hearing of the jury and, on request of any
party, out of the presence of the jury.
(Dec. 26, 1944, eff. Mar.2l, 1946, as amended Feb. 28, 1966, eff. July l,
1e66.)

NOTES OF ADVISORY COMMITTEE ON RULES

Thft gle_ggrrsspgds to Rule 51 of the ne
USt,Ip--pena g nElTiseemea a-a approptaG
that on a point such as instructions to juries there should be no difference in
procedure between civil and criminal cases.

I'a) 243 F2d 367, rch den 354 US 927, I L Ed
2d 1441,77 S Ct 1376 and cert den 353 US 976,
I L Ed 2d 1136,77 S Ct 1058.

Defendant was not prejudiced by allegedly
improper rebuttal closing argument of prosecu-
tion on ground that since no defensc was made,
local rulc permitted defendant to make last
argunrent to jury wherc Board of Judgcs had
repealed such local rule in order to comply with
Rule 29.1 which, upon repeal of local rule, was

made applicable prior to its effective date in view
of fact that defense counsel was given notice at
closg of Covernment's case of new sequence of
closing arguments. United States v Smith (1976,
DC Pa) 410 F Supp 1256.

687



t)URE

ounscl's
ructions
equiring
/ Unitcd

'District
irnsel, in
csired to
'rg objec-
'ructions.
rnn) 390

from an
)lographs
rification,
,dentifica-
requiring

.'en court
res v Fcr-
later app

permittcd
en out of
edurc for
,leting its
nitron not
tructed to
.:l may bc
make any
rstructions
rnay dircct
,r without
es v Hu[-

of jury

'rict Court
rment and
rred, court
hat jury be

I objgclisnt

'ly entered,
rments but
objections,

'sly formu'
ll howcvcr,

'ld instruc-
sence, does
'onvictions,

of manY at
r discussion
c'en defend-

i,urely lcgal
rior to thst
pect to in'
Hamling v

I LEd2d
\5, 42 L Ed

r..5-aae!

,t

q

*
I
I{
n

*
'Jt
l
it
I
i
ri
t.

tt
t
It

Tnrel

Failure of trial court to excuse jury while
defendant's counsel excepted to parts of charge
constituted harmless error where court gave
supplemental charge which instructed jury in
accordance with excepting counsel's view of
applicable law. United States v Hall (1952, CA2
NY) 200 F2d 957.

To insure proper administration of criminal
justice in accordance with policies embodied in
Rule 30 trial court's failure to afford defendant's
counsel opportunity to object to the charge out
of the hearing of the jury was prejudicial error
unless it be demonstrable on an examination of
the whole record that the denial of the right did
not prejudice defendant's cause. United States v
Schartner (1970, CA3 Pa\ 426 Fzd 47O.

85. Request for exclusion
Defendant who did not request opportunity to

voice his objections to charge in absence of jury
as required by Rule 30 cannot contend on review
that this procedure should have been followed.
United States v Conlin (1977, CAz NY) 551 F2d
534, cert den (US) 54 L H 2d 91,98 S Ct I 14.

Defendant cannot, on appeal, complain of
denial of opportunity to object to instructions
out of hearing of jury, as required by Rule 30,
where judge had solicited objections and defense
counsel made no attempt or request to approach
bench and defendant failed to allege any preju-
dice. United States v Wise (1977, CA8 Minn)
553 F2d n73.

VII. REVIEW

86. Scope; generally
In reviewing jury instructions, task of Supreme

Court is to view charge itself as part of whole
trial; single instruction to jury may not be
judged in artificial isolation but must be consid-
ered in context of overall charge. United States v
Park (1975) 421 US 658,44 L Ed 2d 489, 95 S
Ct 1903.

Appellate court, in evaluating instructions to
jury, must consider each statement made by trial
judge in light of entire charge and charge itself
can only be viewed as part of total trial. United
States v Birnbaum (1967, CA2 NY) 373 F2d
250, reh den (CA2 NY) 375 F2d 232 and cert
den 389 US 837, 19 L Ed 2d 99, 88 S Ct 53.

On review, sufficiency of jury instructions is
not determined by giving or failing to give any
one particular instruction; it is necessary that all
of instructions be viewed as whole. Devine v
United States (1968, CAlo Kan) 403 Fzd 93,
cert den 394 US 1003, 22 L Ed 2d 780, 89 S Ct
I 599.

Irr evllunting propriety of irrstructiorr givcn,
tuppellrrte courl rnusl exRrnirrc clttrrgc ns wltole to

Rule 30, n 88

determine whether there was likelihood that jury
was misled to extent that it was more probable
than not that improper verdict was rendered.
United States v Thurman (1969) 135 App DC
184, 417 Fzd 752, cert den 397 US 1026, 25 L
Ed 2d 535, 90 S Ct 1269.

In determining propriety of trial judge's
charge to jury, issue on review is whether in-
structions when taken as whole fairly and ade-
quately submitted.issues in case to jury. United
States v Mattucci (1974, CA6 Ohio) 502 F2d
883.

Reviewing court must look at entire charge
and assess its full meaning; where in prosecution
for eight counts of possession with intent to
distribute and distribution of LSD trial court
instructed jury that in order to find guilt it must
find that defendant was predispossed to commit
crime and later instructed jury, upon question, to
consider each count separately, it was unneces-
sary for court to re-instruct on predisposition at
time it answered jury's question. United States v
Wells (1975, CA5 Fla) 506 F2d 924.

87. 
-Supplemental 

instructions
Primary task of appellate court in reviewing

supplementary instructions is to set standards for
proper conduct of trial judge faced with hung
jury. United States v Brown (1969, CA7 Ill) 4ll
F2d 930, cert den 396 US 1017, 24 L H 2d 5O8,
90 S Ct 578.

88. Miscarriage of justice, plain error, or preju-
dice; generally

Where there was no error resulting or tending
to result in rltESgBIg_gUC$fgE-"nd there were
neither requests for further instructions nor ex-
ceptions to instructions given, appellate court
will not consider alleged failure of trial court on
its own motion to properly instruct jury. Kempe
v United States (1947, CA8 Iowa) 160 F2d 406,
cert den 331 US 843, 9l L Ed 1854, 67 S Ct
I s34.

Appellate courts will take notice of errors
asserted by counsel for first time on appeal, and
also notice errors sus sponte, when, in court's
discretion, notice of error is necessary to prevent
injustice. Lash v United States (1955, CAI
Mass) 221 F2d217, cert den 350 US 826, 100 L
Ed 738, 76 S Ct 55.

Appellate court may take notice on its own
motion of prejudicial error inherent in trial
court's charges to the jury. Smith v United
States (1956, CA6 Tenn) 230 F2d 935. .l

In absence of objection to charge on failure of I
defendant to testify and of any requested instruc- |
tion prcsented to court by such defendant, appel- !
lule c()url crrrrrurl consitlcr such cltargc pluirr {
crror urrtlcr Rulc 52(h). F()gurty v Urritctl Srutm \

T

)
rt
't

i

721



1

Rule 30, n 88

, cert den 360

properly precluded consideration of er-
ror in charge where the d'efendant failed to
object and the charge involved no obvious error
of sufficient magnitude to warrant an interfer-
ence of a serious miscarriage ofjustice. Corey v
United States (1965, CAI Mass) 346 F2d 65,
cert den 382 US 9ll, 15 L Ed 2d 162,86 S Ct
253.

Rule 30, precluding assignment of error as to
any portion of jury charge not objected before
jury retires, will not bar implementation of Rule
52(b), where instructions resulted in miscarriage
of justice. Bearden v United States (1968, CA5
Tex) 4O3 Fzd 782, cert den 393 US llll, 2l L
Ed 2d 808, 89 S Ct 920.

In the absence of plain error the failure to
object to instructions given by the trial court is
fatal and not subject to review on appeal. United
States v Miriani (1970, CA6 Mich) 422 FZd l5O,
cert den 399 US 910, 26 L En 2d 561, 90 S Ct
2199.

The rule requiring an objection at trial to any
error in the jury instruction must be read in
conjunction with the rule permitting an appellate
court to notice "plain error" in the absence of an
objection. United States v lvtcClain (1971) 142
App DC 213, 4fi Fzd 241.

Instruction requests not raised at trial will be

considered on appeal only where the defect
constitutes plain error and where it is necessary
to prevent a grave miscarriage of justice or to
preserve the integrity of the judicial proceedings.
United States v Todaro (1971, CA3 NJ) 448 F2d
64, cert den ,104 US 1040, 30 L Ed 2d 732,92 S

Ct 724, reh den 4O5 US 948, 30 L Fi 2d 819, 92
S Ct 966.

f- where defense counsel failed to object to
I court's charge, as required by Rule 30 considera-

I tion of the charge on appeal is limited by the

| "plain error" provision of Rule 52(b). United

L-States 
v Helms (1972, CA5 Tex) 467 F2d 1085.

In prosecution under Hobbs Act (18 USCS

$ l95l), defendant's contention that trial court
failed to instruct jury as to essential element,
that victim be placed in either economic or
physical fear, was without merit where no objec-
tion was made since omission of allegedly neces-
sary instruction does not constitute plain error if
instructions, viewed in their entirety, adequately
protect defendant. United States v Billingsley
(1973, CA6 Mich) 474 F2d 63, cert den 414 US
819, 38 L Ed 2d 51, 94 S Ct 42.

Objection to instructions concerning requisite
specific intent, raised for first time on appcal and
nol huving heen prcservcd for rcvicw as rcquircd
by Rulc 30, would not bc cttrtsidcrcd orr nppcul

Rule,s oF CRTMTNAL PRocEDURE

since it failed to demonstrate plain error. United
States v Murrah (1973, CAs Tex) 478 FZd762.

Ordinarily under Rule 30, failure to objcct
precludes review of jury instructions, but if
charge deprives accused of constitutional right or
is erroneous in matters which go to very essence

of case, then such errors require recognition by
Court of Appeals under "plain error" provision
of Rule 52(b). United States v Fontenot (1973,

CA5 Ga) 483 F2d 315.

Although failure to object to instructions bars
appellant from raising objections on appeal un-
der Rule 30, where error is plain, noticc may bc
taken of it under Rule 52; failure of evidcnce

definition ii

v Shanks (

Whilc failure to objcct to joindcr of
defendants and jury instructions given or to
request limiting instructions would precludc ap
pellate review of those matters, in view of rcla-
tively thin case presentcd by prosecution, defcnd-
arit, convicted of conspiracy to poss€ss with
intent to distribute drugs, was deprived of basic
right to fair trial and right to confrontation of
witnesses against him, cognizable as plain error
under Rule 52(b) where codefendant's attorney
during trial stated that his clicnt, who was

relying upon entrapment defensc, would admit
guilt in conspiracy but codcfendant declined to
take stand, thereby prcventing defendant from
cross-examining him, and trial court failed to
instruct jury that codefendant's admission
through his attorney should not be weighed
against defendant. United Statcs v Sanchez
(1976, CA9 Ariz) 532 F2d 155.

Defendant may not on appeal object to jury
instructions where defense counscl neither prc-

sents alternative jury instructions nor objects to
instructions as given unless instructions arc .so
manifestly prejudicial as to lead to miscarriage of
justice. United States v Denton (1977, CA6
Mich) 556 F2d 8ll, cert den (US) 54 L H 2d
178, 98 S Ct 269.

89. -4eses involving life or llberty
Under Rule 30 in criminal cascs involving lifc

or libcrty appeal court may noticc plain and
seriously prejudicial error in instructions, cven

though error was not called to attention of trisl
court. Cave v United States (1947, CA8 lowa)
159 F2d 464, cert den 331 US 847, 9l L Ed
1856, 67 S Ct 1732, reh den 332 US 786, 92 L
Ed 369, 68 S Ct 34; Felton v United Statcs
(1948) 83 App DC 277, l7O F2d 153, ccrt den

335 US 831,93 L Ed 385,69 S Ct l8; Unitcd
Sratcr v Raub (1949, CA7 Ind) 177 F2d 312;
Morrcncy v Unitcd StEtcl (1954, CAl0 Kan) 218

263Tex

.N

722

I
I
I,'
i

I
{f
i

I

i
t
I
I

I