Rule 51.Argument; instructions to the jury

Reporter’s Notes—2017 Amendment: Rule 51(b) is amended contemporaneously with an amendment of V.R.Cr.P. 30 to clarify that, in both civil and criminal trials, objections to proposed jury instructions fully articulated at a charge conference may be preserved without the necessity for their reassertion after the court’s reading of the instructions and prior to the jury’s retirement for deliberations. To facilitate the process, the court is required to give the parties a copy of the proposed charge and to include a copy in the record, informing the parties of its action on any requested instructions. The parties may then make objections to the instructions on the record at the charge conference or otherwise before the jury retires. The amendment does not obviate the need for fair and reasonable articulation of specific objections to jury instructions, asserted distinctly and stating the bases thereof. However, the amendment contemplates that where the record of an objection to a jury instruction is well developed, with distinct articulation at an earlier juncture in the case, a lengthy repetition of the specific objection and its bases is not required postcharge and predeliberation, provided that the instructions as actually given do not differ in substance from those approved by the court as a result of the charge conference. The amendment does not require reassertion of objections to instructions given in the manner that it prescribes unless the court’s instruction as given does not comport with the particular language of an instruction that has been indicated by the court in a precharge ruling, or the court has omitted a particular instruction to the jury altogether. Nor does the amended rule preclude assertion of an objection to an instruction, the basis for which is first presented in the court’s instructions as actually stated to the jury. In such circumstances, preservation of the objection would require full articulation of a party’s objection, distinctly stating the bases thereof, postcharge, and predeliberation, to provide the court with the opportunity to reasonably address any claim of error. A written copy of the version objected to must be included in the record.

Reporter’s Notes—1989 Amendment: Rule 51(b) is amended to conform to the 1987 amendment of F.R.C.P. 51. The change authorizes the court to instruct the jury before or after oral argument, or both. See Advisory Committee Note, 1987 Amendment, F.R.C.P. 51. Gender neutral language also is substituted.

Reporter’s Notes—1986 Amendment: Rule 51(c) is amended to authorize the trial courts to use their discretion in whether to distribute any more than three copies of jury instructions to the jury. The amendment removes the “all or nothing” requirement formerly found in the rule, whereby each juror had to be given a copy if any copies at all were to be provided.

Reporter’s Notes—1983 Amendment: Rule 51(c) is added to authorize written jury instructions. The addition applies in District Court since D.C.C.R. 51 embodies the provisions of this rule. Rule 51(c) is added to authorize the trial judge to give the charge in writing. In Corti v. Lussier, 140 Vt. 421, 438 A.2d 1114 (1981), the Court noted that written copies of the charge had been given to the jury, but found no error because no prejudice was shown. No other Vermont case has expressed a view on the propriety of written instructions. The literature on jury instructions indicates that written instructions significantly increase juror comprehension of the charge. See, e.g., Nieland, Pattern Jury Instructions 28-30 (1979) (the author reviews the research on written instructions). The American Bar Association Standards Relating to Juror Use and Management, Standard 16(c)(ii) (Preliminary Draft 1981) provides: Instructions on the law and on the appropriate procedures to be followed during deliberations should be recorded or reduced to writing and made available to the jurors during deliberations. This standard follows the earlier Standards Relating to Trial Courts, Standard 2.13 (Approved Draft 1976). Many states require the court to put the charge in writing. See, e.g., Colo. R.C.P. 51; Idaho R.C.P. 51(b); Ill. Prac. Act. Ch. 111 ¶ 67(1); Iowa R.C.P. 196; Nev. Rev. Stat. Ch. 16.110(1); N. Mex. R.C.P. 51(H). Others authorize, but do not require, written instructions. See, e.g., Md. R.P. 554(b): N.D.R.C.P. 51(a). Subdivision (c) adopts the approach of authorizing written instructions without requiring their use. While the rewards indicate written instructions should be required, practical problems in obtaining typing and copying services in the more rural courts make a requirement impractical. However, written instructions should be given whenever possible. The subdivision requires that the instructions first be given orally. After the jury has heard the instructions, including any additions or amendments made by the court in response to objections of counsel, the court may give each juror a written copy of the complete and correct instructions to take to the jury room. Each juror must be provided a copy to ensure that one or two jurors don’t control deliberations because they have the only copy of the instructions.

Reporter’s Notes: Rule 51(a) has no equivalent in the federal rules, but was taken verbatim from former County Court Rule 27. Its placement in this rule follows the example of Maine Rule 51(a). Rule 51(b) is identical to Federal Rule 51 and generally similar to former County Court Rule 29. The new rule as interpreted in the federal courts makes one important change, however. Because the provision for written requests is permissive, oral requests have been allowed if they clearly inform the court of the point involved. See 2B Barron & Holtzoff, Federal Practice and Procedure § 1102 (Wright ed. 1961). While County Court Rule 29 required written requests, the Court in at least one case “overlooked” a failure to comply and considered an oral request on the merits. Keene v. Willis, 128 Vt. 187, 260 A.2d 371 (1969).