a At or Before the Close of Evidence. A party may, at the close of the evidence or at an earlier reasonable time that the court directs, file and furnish to every other party written requests that the court instruct the jury on the law as set forth in the requests.
b After the Close of Evidence. After the close of the evidence, a party may:
1 file requests for instructions on issues that could not reasonably have been anticipated at an earlier time for requests set under Rule 51.01(a), and
2 with the court’s permission file untimely requests for instructions on any issue.
51.02 Instructions The court:
a must inform the parties of its proposed instructions and proposed action on the requests before instructing the jury and before final jury arguments;
b must give the parties an opportunity to object on the record and out of the jury’s hearing to the proposed instructions and actions on requests before the instructions and arguments are delivered; and
c may instruct the jury at any time after trial begins and before the jury is discharged.
a Form. A party who objects to an instruction or the failure to give an instruction must do so on the record, stating distinctly the matter objected to and the grounds of the objection.
b Timeliness. An objection is timely if:
1 a party that has been informed of an instruction or action on a request before the jury is instructed and before final jury arguments, as provided by Rule 51.02(a), objects at the opportunity for objection required by Rule 51.02(b); or
2 a party that has not been informed of an instruction or action on a request before the time for objection provided under Rule 51.02(b) objects promptly after learning that the instruction or request will be, or has been, given or refused.
51.04 Assigning Error; Plain Error
a Assigned Error. A party may assign as error:
1 an error in an instruction actually given if that party made a proper objection under Rule 51.03, or
2 a failure to give an instruction if that party made a proper request under Rule 51.01, and—unless the court made a definitive ruling on the record rejecting the request—also made a proper objection under Rule 51.03.
b Plain Error. A court may consider a plain error in the instructions affecting substantial rights that has not been preserved as required by Rule 51.04(a)(1) or (2).
Before a jury decides a case, the judge instructs it on the law that applies. Rule 51 governs how those instructions get written and finalized. A party may file written requests for jury instructions at the close of the evidence or at an earlier time the court sets, and must share those requests with every other party. After the close of evidence, a party can still file requests on issues that could not reasonably have been anticipated earlier, and, with the court’s permission, can file other late requests as well.
The judge has to tell the parties what instructions will be given and how their requests were handled before instructing the jury and before closing arguments. The parties then get a chance to object on the record, outside the jury’s hearing, to those proposed instructions before they are delivered. The judge can instruct the jury at any point after trial begins and before the jury is discharged, giving some flexibility in timing.
To preserve an error for appeal, a party generally has to object clearly on the record, stating exactly what is being objected to and why, at the right point in the process. An objection is timely if made at the opportunity the court provides, or, if a party was not told about an instruction in time, promptly after learning the instruction will be or has been given or refused. A party can also raise an error in a given instruction or a failure to give a requested instruction on appeal if the proper objection or request was made below. Even without a preserved objection, a court can still consider a plain error in the instructions that affects a party’s substantial rights.
Advisory Committee Comment - 1998 Amendments
The Committee does not believe a mandatory rule requiring use of written instructions in all cases is appropriate, but notes the widespread use of written instructions and the near-unanimous support for written instructions among judges, lawyers, and
commentators. See, e.g., American Bar Association, Section of Litigation, Civil Trial Practice Standards, section 5(f), at 16 (1998) ("Final instructions should be provided for the jurors’ use during deliberation."). If written instructions are given, the Committee believes that the court should have the discretion to decide that more than one complete copy of the instructions be taken to the jury room when the jury retires to deliberate.