1.3 Prohibition against Commenting
on Evidence, Summarizing Testimony, and Discussing Facts
Comment
The task of instructing Texas juries in criminal
cases is complicated by statutory limits on the judge’s actions. Tex. Code Crim. Proc. art. 36.14 provides
in part:
[T]he judge shall . . . deliver
to the jury . . . a written charge distinctly setting forth the
law applicable to the case; not expressing any opinion as to the
weight of the evidence, not summing up the testimony, discussing
the facts or using any argument in his charge calculated to arouse
the sympathy or excite the passions of the jury.
This language is substantively unchanged
from that in articles 594 and 595 of the 1856 Code of Criminal Procedure.
Quite likely, the position embodied in this language reflects a
legislative reaction to the Texas Supreme Court’s approval, two
years earlier, of jury charges calling the attention of jurors to
particular facts “for the purpose of directing the jury to the rules
of law that must govern them in arriving at the truth. . . . All
that is required of the Judge is, that he should neither decide
upon the facts, nor endeavor to influence the jury in their decision
on the facts.” Jones
v. State, 13 Tex. 168, 175 (1854).
The legislature rejected the approach of Jones. See Tex. Code Crim. Proc. art. 36.14.
“Thus one of the rights accorded to a judge at common law—that is,
the right to advise the jury with reference to the facts—has been
expressly denied by a statute of this State.” Randel v. State, 219
S.W.2d 689, 697 (Tex. Crim. App. 1949).
The statutory provision dramatically affects both what matters
can be addressed in jury instructions and, when matters can be addressed,
how the instructions must discuss those matters. Case law has developed
several distinguishable aspects of the statutory limit on jury instructions.
Need to Avoid Assuming Facts. Under Tex. Code Crim. Proc. art. 36.14,
a jury instruction must carefully avoid assuming the truth of a
fact that the state must prove. Thus a trial court erred in referring
to “the place where the offense was committed,” because this phraseology
assumed that in fact an offense had been committed. Richardson v. State, 390
S.W.2d 773, 773 (Tex. Crim. App. 1965).
From the outset, however, the statutory language has been
construed as going considerably beyond this.
Prohibition against Advising Jury on Reasoning.Tex. Code Crim. Proc. art. 36.14 has
been construed as imposing significant limits on the extent to which
jury instructions can advise jurors on the inferences they may draw
from the evidence. Essentially, it has become a prohibition on suggesting
to jurors certain reasoning they may wish to use.
Shortly after the original statutes were enacted, the Texas
Supreme Court noted:
If the court should undertake
to instruct, or even advise, the jury, as to the proper process
of reasoning upon the facts, or as to the precautionary considerations
to be borne in mind in coming to a proper conclusion upon the facts,
by a dissertation, however it may be shaped, upon the nature and effect
of evidence, his opinion upon the weight of the evidence may be infused
into his charge upon the subject, and really influence the jury,
by that mode of communicating it, as effectually, and sometimes
more so, than a direct expression of it.
Brown
v. State, 23 Tex. 195, 201–02 (1859). Accord Harrell v. State, 40
S.W. 799, 800–801 (Tex. Crim. App. 1897) (error to charge
jury that “in determining the credibility of the witnesses, you
may consider the age, intelligence, interest in the case, apparent bias
or prejudice, if any, and all other circumstances in the case”).
A charge that jurors should use caution in evaluating the
credibility of the testimony of a witness whose memory had been
hypnotically enhanced, therefore, is a prohibited comment on the
evidence. Zani v. State, 758
S.W.2d 233, 245 (Tex. Crim. App. 1988).
In Brown v. State, 122
S.W.3d 794 (Tex. Crim. App. 2003), the court held that
a trial court errs in telling a jury that “intent or knowledge may
be inferred by acts done or words spoken.” An appellate court may
assume a convicting jury drew such an inference. A jury may in fact
draw such an inference. Apparently the lawyers may argue to the
jurors that they can and should draw such an inference. But the
trial court cannot instruct jurors that they may draw such an inference,
no matter how careful the trial court is to make clear that the
court is not suggesting jurors should draw that inference.
If the applicable law “specifically assigns to jurors the
task of deciding whether certain evidence may be considered [by
them], as it does under article 38.23,” an instruction may be given
although it “may have the incidental effect of emphasizing certain evidence
to the jury.” Atkinson v. State, 923
S.W.2d 21, 25 (Tex. Crim. App. 1996), overruled
on other grounds by Motilla
v. State, 78
S.W.3d 352 (Tex. Crim. App. 2002).
If the law permits jurors to consider certain evidence but
only in particular ways, Texas courts have permitted instructions
explaining to jurors what limits the law places on the use they
may make of that evidence. Barnes
v. State, 28 Tex. Ct. App. 29, 30, 11
S.W. 679, 679 (1889) (“[I]t was nevertheless the imperative
duty of the court, in its charge, to so limit and restrict such
evidence to the purposes for which alone it was admissible as that
the jury might not use it improperly . . . .”).
Drawing Jury’s Attention to Selected Matters and Instruction
on Defensive Contentions. As the court of criminal appeals
construes what is now Tex. Code Crim. Proc. art. 36.14,
a trial judge may not instruct juries on certain defensive matters.
Giesberg v. State, 984
S.W.2d 245 (Tex. Crim. App. 1998), held that the trial
court did not err in refusing the defendant’s request for the following
alibi instruction:
The defense . . . set up by the
defendant in this case is what is known as an alibi at the time
of the killing, the defendant was at another and different place,
was not and could not have been the person who committed the offense.
If you have a reasonable doubt as to the presence of the defendant at
the place where the offense was committed at the time the offense
was committed, then you will find the defendant not guilty.
A defensive issue which goes no
further than to merely negate an element of the offense alleged
by the State in its indictment does not place a burden of proof
upon a defendant to establish it. The burden of proof is upon the State
to prove those allegations. An alibi only traverses those allegations and
casts doubt upon whether the State has met its burden. As a result,
an alibi is sufficiently embraced in a general charge to the jury
that the defendant is presumed innocent until he or she is proven
guilty beyond a reasonable doubt. There is ample room within that
instruction for a defendant to effectively argue his defense of
alibi to a jury.
Since a defensive issue of alibi is adequately
accounted for within a general charge to the jury, a special instruction
for the issue of alibi would needlessly draw a jury’s attention
to the evidence which raised alibi. Therefore, we conclude a special
instruction on alibi would constitute an unwarranted comment on
the weight of the evidence by the trial court.
Giesberg, 984
S.W.2d at 250 (citations omitted). Simply referring
to particular evidence without expressing any view as to its weight
or significance is impermissible, then, because that reference might
be taken by the jury as indicating some judgment by the judge about
the weight or significance of the evidence.
This proposition was reaffirmed in Walters
v. State, 247
S.W.3d 204 (Tex. Crim. App. 2007), in which the court
summarized the law as follows:
[G]enerally speaking, neither
the defendant nor the State is entitled to a special jury instruction
relating to a statutory offense or defense if that instruction (1)
is not grounded in the Penal Code, (2) is covered by the general
charge to the jury, and (3) focuses the jury’s attention on a specific
type of evidence that may support an element of an offense or a
defense. In such a case, the non-statutory instruction would constitute
a prohibited comment on the weight of the evidence.
Bartlett v. State, 270
S.W.3d 147 (Tex. Crim. App. 2008), applied this approach
to condemn as error an instruction informing the jury that it could consider
evidence that the defendant refused to submit to the taking of a
breath or blood sample to determine whether he was intoxicated.
The neutral character of the instruction did not save it. The court
explained:
Such an instruction, while neutral,
does not inform the jury of anything it does not already know.
. . . [I]t did nothing to clarify the law. It served no function
other than to improperly “tend to emphasize” the evidence of the appellant’s
refusal to submit to a breath test “by repetition or recapitulation.”
It had the potential to “obliquely or indirectly convey some [judicial] opinion
on the weight of the evidence by singling out that evidence and inviting
the jury to pay particular attention to it.”
Bartlett, 270
S.W.3d at 154 (second alteration in original) (footnotes
omitted) (citations omitted).
Committee’s Approach. The Committee did not address
the wisdom of existing law. It did, however, approach the task of
drafting pattern instructions with care to avoid violating the limits
imposed by existing law. It also encountered considerable difficulty
in ascertaining what those limits are or will eventually be held
to be.
The Committee was sensitive to the fact that under the Texas
courts’ interpretation of Tex. Code Crim. Proc. art. 36.14,
the state as well as the defendant has the right to have the trial
court avoid comment on and summary and discussion of the facts.
As a practical matter, the state seldom has any recourse from comments
favorable to the accused. Nevertheless, the law makes clear the
trial judge’s duty to avoid violating the statute. The Committee
kept this in mind as it approached specific problems in drafting
instructions.
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Comment
The task of instructing Texas juries in criminal cases is complicated by statutory limits on the judge’s actions. Tex. Code Crim. Proc. art. 36.14 provides in part:
[T]he judge shall . . . deliver to the jury . . . a written charge distinctly setting forth the law applicable to the case; not expressing any opinion as to the weight of the evidence, not summing up the testimony, discussing the facts or using any argument in his charge calculated to arouse the sympathy or excite the passions of the jury.
This language is substantively unchanged from that in articles 594 and 595 of the 1856 Code of Criminal Procedure. Quite likely, the position embodied in this language reflects a legislative reaction to the Texas Supreme Court’s approval, two years earlier, of jury charges calling the attention of jurors to particular facts “for the purpose of directing the jury to the rules of law that must govern them in arriving at the truth. . . . All that is required of the Judge is, that he should neither decide upon the facts, nor endeavor to influence the jury in their decision on the facts.” Jones v. State, 13 Tex. 168, 175 (1854).
The legislature rejected the approach of Jones. See Tex. Code Crim. Proc. art. 36.14. “Thus one of the rights accorded to a judge at common law—that is, the right to advise the jury with reference to the facts—has been expressly denied by a statute of this State.” Randel v. State, 219 S.W.2d 689, 697 (Tex. Crim. App. 1949).
The statutory provision dramatically affects both what matters can be addressed in jury instructions and, when matters can be addressed, how the instructions must discuss those matters. Case law has developed several distinguishable aspects of the statutory limit on jury instructions.
Need to Avoid Assuming Facts. Under Tex. Code Crim. Proc. art. 36.14, a jury instruction must carefully avoid assuming the truth of a fact that the state must prove. Thus a trial court erred in referring to “the place where the offense was committed,” because this phraseology assumed that in fact an offense had been committed. Richardson v. State, 390 S.W.2d 773, 773 (Tex. Crim. App. 1965).
From the outset, however, the statutory language has been construed as going considerably beyond this.
Prohibition against Advising Jury on Reasoning. Tex. Code Crim. Proc. art. 36.14 has been construed as imposing significant limits on the extent to which jury instructions can advise jurors on the inferences they may draw from the evidence. Essentially, it has become a prohibition on suggesting to jurors certain reasoning they may wish to use.
Shortly after the original statutes were enacted, the Texas Supreme Court noted:
If the court should undertake to instruct, or even advise, the jury, as to the proper process of reasoning upon the facts, or as to the precautionary considerations to be borne in mind in coming to a proper conclusion upon the facts, by a dissertation, however it may be shaped, upon the nature and effect of evidence, his opinion upon the weight of the evidence may be infused into his charge upon the subject, and really influence the jury, by that mode of communicating it, as effectually, and sometimes more so, than a direct expression of it.
Brown v. State, 23 Tex. 195, 201–02 (1859). Accord Harrell v. State, 40 S.W. 799, 800–801 (Tex. Crim. App. 1897) (error to charge jury that “in determining the credibility of the witnesses, you may consider the age, intelligence, interest in the case, apparent bias or prejudice, if any, and all other circumstances in the case”).
A charge that jurors should use caution in evaluating the credibility of the testimony of a witness whose memory had been hypnotically enhanced, therefore, is a prohibited comment on the evidence. Zani v. State, 758 S.W.2d 233, 245 (Tex. Crim. App. 1988).
In Brown v. State, 122 S.W.3d 794 (Tex. Crim. App. 2003), the court held that a trial court errs in telling a jury that “intent or knowledge may be inferred by acts done or words spoken.” An appellate court may assume a convicting jury drew such an inference. A jury may in fact draw such an inference. Apparently the lawyers may argue to the jurors that they can and should draw such an inference. But the trial court cannot instruct jurors that they may draw such an inference, no matter how careful the trial court is to make clear that the court is not suggesting jurors should draw that inference.
If the applicable law “specifically assigns to jurors the task of deciding whether certain evidence may be considered [by them], as it does under article 38.23,” an instruction may be given although it “may have the incidental effect of emphasizing certain evidence to the jury.” Atkinson v. State, 923 S.W.2d 21, 25 (Tex. Crim. App. 1996), overruled on other grounds by Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002).
If the law permits jurors to consider certain evidence but only in particular ways, Texas courts have permitted instructions explaining to jurors what limits the law places on the use they may make of that evidence. Barnes v. State, 28 Tex. Ct. App. 29, 30, 11 S.W. 679, 679 (1889) (“[I]t was nevertheless the imperative duty of the court, in its charge, to so limit and restrict such evidence to the purposes for which alone it was admissible as that the jury might not use it improperly . . . .”).
Drawing Jury’s Attention to Selected Matters and Instruction on Defensive Contentions. As the court of criminal appeals construes what is now Tex. Code Crim. Proc. art. 36.14, a trial judge may not instruct juries on certain defensive matters.
Giesberg v. State, 984 S.W.2d 245 (Tex. Crim. App. 1998), held that the trial court did not err in refusing the defendant’s request for the following alibi instruction:
The defense . . . set up by the defendant in this case is what is known as an alibi at the time of the killing, the defendant was at another and different place, was not and could not have been the person who committed the offense. If you have a reasonable doubt as to the presence of the defendant at the place where the offense was committed at the time the offense was committed, then you will find the defendant not guilty.
Giesberg, 984 S.W.2d at 245–46. The court explained:
A defensive issue which goes no further than to merely negate an element of the offense alleged by the State in its indictment does not place a burden of proof upon a defendant to establish it. The burden of proof is upon the State to prove those allegations. An alibi only traverses those allegations and casts doubt upon whether the State has met its burden. As a result, an alibi is sufficiently embraced in a general charge to the jury that the defendant is presumed innocent until he or she is proven guilty beyond a reasonable doubt. There is ample room within that instruction for a defendant to effectively argue his defense of alibi to a jury.
Since a defensive issue of alibi is adequately accounted for within a general charge to the jury, a special instruction for the issue of alibi would needlessly draw a jury’s attention to the evidence which raised alibi. Therefore, we conclude a special instruction on alibi would constitute an unwarranted comment on the weight of the evidence by the trial court.
Giesberg, 984 S.W.2d at 250 (citations omitted). Simply referring to particular evidence without expressing any view as to its weight or significance is impermissible, then, because that reference might be taken by the jury as indicating some judgment by the judge about the weight or significance of the evidence.
This proposition was reaffirmed in Walters v. State, 247 S.W.3d 204 (Tex. Crim. App. 2007), in which the court summarized the law as follows:
[G]enerally speaking, neither the defendant nor the State is entitled to a special jury instruction relating to a statutory offense or defense if that instruction (1) is not grounded in the Penal Code, (2) is covered by the general charge to the jury, and (3) focuses the jury’s attention on a specific type of evidence that may support an element of an offense or a defense. In such a case, the non-statutory instruction would constitute a prohibited comment on the weight of the evidence.
Walters, 247 S.W.3d at 212.
Bartlett v. State, 270 S.W.3d 147 (Tex. Crim. App. 2008), applied this approach to condemn as error an instruction informing the jury that it could consider evidence that the defendant refused to submit to the taking of a breath or blood sample to determine whether he was intoxicated. The neutral character of the instruction did not save it. The court explained:
Such an instruction, while neutral, does not inform the jury of anything it does not already know. . . . [I]t did nothing to clarify the law. It served no function other than to improperly “tend to emphasize” the evidence of the appellant’s refusal to submit to a breath test “by repetition or recapitulation.” It had the potential to “obliquely or indirectly convey some [judicial] opinion on the weight of the evidence by singling out that evidence and inviting the jury to pay particular attention to it.”
Bartlett, 270 S.W.3d at 154 (second alteration in original) (footnotes omitted) (citations omitted).
Committee’s Approach. The Committee did not address the wisdom of existing law. It did, however, approach the task of drafting pattern instructions with care to avoid violating the limits imposed by existing law. It also encountered considerable difficulty in ascertaining what those limits are or will eventually be held to be.
The Committee was sensitive to the fact that under the Texas courts’ interpretation of Tex. Code Crim. Proc. art. 36.14, the state as well as the defendant has the right to have the trial court avoid comment on and summary and discussion of the facts. As a practical matter, the state seldom has any recourse from comments favorable to the accused. Nevertheless, the law makes clear the trial judge’s duty to avoid violating the statute. The Committee kept this in mind as it approached specific problems in drafting instructions.