Sometimes Even the Judicial Committees Are Wrong.

October 6, 2015
By Hanging Out with Carl Gunn


  • Ninth Circuit model instructions, in the Ninth Circuit’s own words, “do not come down from any mountain or rise from the sea.”
  • Consistent with this, Ninth Circuit panels have invalidated a number of Ninth Circuit model instructions.
  •  So don’t just accept an instruction because it’s the Ninth Circuit model instruction; look at it critically and be prepared to remind the judge that Ninth Circuit instructions can be wrong just like other instructions can be.



As most of you who practice in the Ninth Circuit presumably know, there’s a Ninth Circuit manual of model instructions that district judges in the Ninth Circuit commonly use in their criminal cases.  (I won’t link the manual here but you can find it on the Ninth Circuit website.)  These instructions actually didn’t exist when I started practicing as a federal public defender, so it’s one of those interesting changes that’s taken place over my “history.”  (See “The Swings Over the Years” in the April 2015 link at the right about practicing long enough to have such a “history.”)

The danger of model instructions that have the imprimatur of being the “Ninth Circuit” model instruction is a tendency to treat them as legal authority that’s binding, or, if not binding, strongly persuasive.  I offer this post to give you some reasons to fight that tendency.  You should question and make objections to the Ninth Circuit model instructions just as readily as you question and make objections to other instructions, because they aren’t binding legal authority and they shouldn’t be given any presumption of correctness.  And you should make sure your district judges understand that.

You can start with making clear what the instructions are and what they aren’t.  They aren’t like a Ninth Circuit rule that’s adopted by a vote of all the judges in the circuit.  If you look at page ii of the manual, you’ll see the model instructions are adopted, albeit after comments from practitioners and other judges, by a “Ninth Circuit Jury Instructions Committee” that’s composed of just one circuit judge, six district judges, and one magistrate judge.

You can also point to specific statements in both the instructions manual itself and Ninth Circuit case law.  First, page iv of the manual, entitled “Caveat,” expressly states: “The Ninth Circuit Court of Appeals does not adopt these instructions as definitive.  Indeed, occasionally the correctness of a given instruction may be the subject of a Ninth Circuit opinion.”  Second, there’s case law that makes this point.  Multiple cases have stated: “Use of a model jury instruction does not preclude a finding of error.”  United States v. Warren, 984 F.2d 325, 327 n.3 (9th Cir. 1993).  See also Chess v. Dovey, 790 F.3d 961, 972 (9th Cir. 2015) (quoting Warren); Hunter v. County of Sacramento, 652 F.3d 1225, 1232 (9th Cir. 2011) (quoting Warren and Dang v. Cross, 422 F.3d 800, 805 (9th Cir. 2005)); Clem v. Lomeli, 566 F.3d 1177, 1181 n.2 (9th Cir. 2009) (also quoting Warren and Dang); United States v. Mendoza, 11 F.3d 126, 128 n.2 (9th Cir. 1993) (“The fact that the district court used a model jury instruction or a modification thereof does not preclude a finding of error.”).

The reasons why model jury instructions may still be erroneous are nicely explained in McDowell v. Calderon, 130 F.3d 832 (9th Cir. 1997) (en banc), overruled in part on other grounds, Weeks v. Angelone, 528 U.S. 225 (2000).

Jury instructions are only judge-made attempts to recast the words of statutes and the elements of crimes into words and terms comprehensible to the layperson.  The texts of “standard” jury instructions are not debated and hammered out by legislators, but by ad hoc committees of lawyers and judges.  Jury instructions do not come down from any mountain or rise from the sea.  Their precise wording, although extremely useful, is not blessed with any special precedential or binding authority.  This description does not denigrate their value, it simply places them in the niche where they belong.

McDowell, 130 F.3d at 840.  And McDowell then goes on to quote a caveat set forth in the 1996 edition of the model instructions manual:

It should be emphasized that the instructions in this Manual are models and are not intended to be pattern instructions.  They must be reviewed carefully before use in a particular case.  They are not a substitute for the individual research and drafting that may be required in a particular case, nor are they intended to discourage judges from using their own forms and techniques for instructing juries.

Id. at 841 (quoting 9th Cir. Man. of Model Jury Instructions (West 1996)) (emphasis added in McDowell).

In addition to these general statements, there are multiple cases actually invalidating model instructions.  Some of these cases are based on intervening cases decided after the model instruction was adopted, see, e.g., United States v. Lessard, 17 F.3d 303, 305-06 (9th Cir. 1994), and cases cited therein (invalidating model instruction on entrapment after Supreme Court decision in Jacobson v. United States, 503 U.S. 540 (1992)), but many others have not required any intervening case, see, e.g., United States v. Montoya-Gaxiola, 796 F.3d 1118, 1122-23 (9th Cir. 2015); United States v. Garcia, 729 F.3d 1171, 1175-77 (9th Cir. 2013), and cases cited therein (involuntary manslaughter instruction); United States v. Smith, 561 F.3d 934, 937-38 (9th Cir. 2009) (assault with a dangerous weapon instruction); United States v. Mendoza, 11 F.3d at 128-29 & n.2 (18 U.S.C. § 924(c) elements instruction); United States v. Hegwood, 977 F.2d 492, 495-96 (9th Cir. 1992) (mail fraud instruction); United States v. Terry, 911 F.2d 272, 280 (9th Cir. 1990) (constructive possession instruction).  See also Chess v. Dovey, 790 F.3d at 972-74 (instruction on deference to prison authorities in negligent medical care case); Clem v. Lomeli, 566 F.3d at 1181-82 (elements instruction in cruel and unusual punishment case); Dang v. Cross, 422 F.3d at 805-09 (punitive damages instruction).

These cases, as well as the caveat in the model instructions manual itself, mean you shouldn’t agree to a problematic instruction just because it’s in the Ninth Circuit manual.  Conduct and present the “individual research” that the McDowell opinion quoted above says is required.  Consider looking not just to case law but also other circuits’ model instructions; if another circuit’s instruction is better, argue that it’s the one that better reflects the underlying case law and statutory authority.  Finally, consider pointing to specific facts and/or circumstances that make your case atypical and point to the language from the 1996 manual that’s quoted with approval in the McDowell opinion.  That is that model instructions “must be reviewed carefully before use in a particular case” and “are not a substitute for the individual research and drafting that may be required in a particular case.”  Then argue that your particular case requires modification of the model instruction even if the instruction might be sufficient in most cases.

Put simply, don’t just roll over because it says “Ninth Circuit.”