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additional instruction in charge after closings

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April 05, 2010, 16:49
additional instruction in charge after closings
Other than an Allen charge, has anyone ever added instructions to give to the jury?

CCP 36.16 says, about halfway through: "After the argument begins no further charge shall be given to the jury unless required by the improper argument of counsel or the request of the jury, or unless the judge shall, in his discretion, permit the introduction of other testimony..."

My DWI jury was hung up on prior convictions because in closing, the defense pointed to language one that said "legally responsible for conduct" instead of guilty and conviction. He said, "now this is a lawyer thing, but that sounds like deferred adjudication to me."

I objected, because he was arguing outside the charge and the facts--there was no evidence presented on convictions other than the probation officer testifying the defendant reported for two misdemeanor DWI probations. And I argued that it was improper application of the law, because deferreds didn't apply in DWIs.

Over almost 8 hours of deliberation, the jury sent out 7 notes, all asking things like..."is legally responsible for" a conviction? What does nolo contendere mean? Is guilty a conviction? Can we have a legal dictionary?

It was brutal! Obviously, lessons learned for me for closing argument (I was worried about blood evidence, I thought it was REALLY obvious that the guy had been on two prior probations and that they were convictions)...but the bigger question I have is, has anyone ever argued in a late instruction...and in the future for DWIs--what is the definition of nolo contendere and "legally responsible for"? I've never asked for definitions that were not statutorily defined.

Thoughts? Jury charges are a tough area where there doesn't seem to be much firm guidance. The new forms that are discussed in a different string don't address this that I found.

What is considered improper argument...and if seven questions on the same topic are not requests from the jury, what are? Every single answer back to the jury was that the judge could not answer and to be guided by the charge. Unfortunately, it obviously wasn't in the charge.