7.33Jury Instructions
“After the jury is sworn and before evidence is taken, the court shall orally provide the jury with pretrial instructions reasonably likely to assist in its consideration of the case. Such instructions, at a minimum, shall communicate the duties of the jury, trial procedure, and the law applicable to the case as are reasonably necessary to enable the jury to understand the proceedings and the evidence. The jury also shall be orally instructed about the elements of all civil claims . . . , as well as the legal presumptions and burdens of proof. The court shall also provide each juror with a written copy of such instructions. MCR 2.512(D)(2) [(requiring that pertinent portions of the instructions approved by the Committee on Model Civil Jury Instructions, or a predecessor committee, be given)] does not apply to such preliminary instructions.” MCR 2.513(A).1
“At any time during the trial, the court may, with or without request, instruct the jury on a point of law if the instruction will materially aid the jury in understanding the proceedings and arriving at a just verdict.” MCR 2.512(B)(1).
The court must also instruct the jury on the applicable law, issues presented, and if requested under MCR 2.512(A)(2), a party’s theory of the case. MCR 2.512(B)(2). These instructions may be given “[b]efore or after arguments, or at both times, as the court elects.” Id.
Parties must file a written request for instructions within a time period reasonably directed by the court. MCR 2.512(A)(1). If a time has not been directed by the court, a written request for instructions must be made at or before the close of the evidence. Id. See also MCR 2.513(N)(1). “A copy of the requested instructions must be served on the adverse party in accordance with MCR 2.107.” MCR 2.512(A)(3). “The court shall inform the attorneys of its proposed action on the requests before their arguments to the jury.” MCR 2.512(A)(4).
D.Final Instructions2
1.Required Instructions
The trial court must orally instruct the jury after closing arguments are made or waived. MCR 2.513(N)(1). However, the trial court has the discretion (after giving notice to the parties) to orally instruct the jury before the parties give their closing arguments. Id. If instructions are given before closing arguments, the trial court may give any appropriate further instructions afterwards. Id.
MCR 2.513(N)(1) gives “the trial court broad authority to carry out its duty to instruct the jury properly, and this authority extends to instructing the jury even during deliberations.” People v Craft, 325 Mich App 598, 607 (2018). “There is nothing in the court rules that precludes the trial court from supplementing its original instructions . . ., nor is there anything in the rules to suggest that a party’s acquiescence to the original instructions [bars] the trial court [from] supplementing its instructions.” Id.
2.Soliciting Questions from the Jury
As part of its final instructions, the court must “advise the jury that it may submit in a sealed envelope given to the bailiff any written questions about the jury instructions that arise during deliberations.” MCR 2.513(N)(2). In addition, after orally delivering its final instructions, the court must “invite the jurors to ask any questions in order to clarify the instructions before they retire to deliberate.” Id.
If questions arise during deliberation, “the court and the parties shall convene, in the courtroom or by other agreed-upon means,” so that the question may be read into the record and the attorneys can offer suggestions for an appropriate response. MCR 2.513(N)(2). The court has discretion whether to provide the jury with a specific response, but must respond to all questions asked by the jury, “even if the response consists of a directive for the jury to continue its deliberations.” Id.
3.Providing Copies of Instructions
The court must provide the jury with a written copy of the final instructions to take into the jury room during deliberations. MCR 2.513(N)(3). If a juror requests additional copies, the court may provide them as necessary. Id. The court also has discretion to provide the jury with a copy of electronically recorded instructions.” Id.
4.Clarifying or Amplifying Instructions
“When it appears that a deliberating jury has reached an impasse, or is otherwise in need of assistance, the court may invite the jurors to list the issues that divide or confuse them in the event that the judge can be of assistance in clarifying or amplifying the final instructions.” MCR 2.513(N)(4).3
Committee Tip:
Before releasing the jury to deliberate, it may be helpful to review the verdict form with jurors and inquire if they have any questions regarding the form. The court will also need to address the release and instruction of alternate jurors. See Section 7.20(K) for more information.
The court should inquire if the parties and their counsel are satisfied with the instructions on the record. Express approval of the instructions serves as a waiver to any error upon appellate review. See People v Kowalski, 489 Mich 488, 504-505, (2011).
E.Model Civil Jury Instructions
“A model jury instruction does not have the force and effect of a court rule.” MCR 2.512(D)(1).
MCR 2.512(D)(2) provides:
“Pertinent portions of the instructions approved by the Committee on Model Civil Jury Instructions . . . or [its] predecessor committee must be given in each action in which jury instructions are given if
(a) they are applicable,
(b) they accurately state the applicable law, and
(c) they are requested by a party.”4
Whether a model jury instruction is applicable and accurate is a matter within the trial court’s discretion. Alfieri v Bertorelli, 295 Mich App 189, 197 (2012).
A trial court’s failure to give a requested, applicable, and accurate model jury instruction does not amount to reversible error unless the noncompliance results in “such unfair prejudice to the complaining party that the failure to vacate the jury verdict would be inconsistent with substantial justice.” Johnson v Corbet, 423 Mich 304, 327 (1985) (quotation marks omitted).5
If the court decides to give an instruction when no instruction is recommended by the committee, the court must specifically find “for reasons stated on the record that (a) the instruction is necessary to state the applicable law accurately, and (b) the matter is not adequately covered by other pertinent model jury instructions.” MCR 2.512(D)(3).
MCR 2.512(D)(4) provides:
“This subrule does not limit the power of the court to give additional instructions on applicable law not covered by the model instructions. Additional instructions, when given, must be patterned as nearly as practicable after the style of the model instructions and must be concise, understandable, conversational, unslanted, and nonargumentative.”
It is within the trial court’s discretion whether a supplemental instruction requested by a party is applicable and accurate. Silberstein v Pro-Golf of America, Inc, 278 Mich App 446, 451 (2008). However, “when the [model] jury instructions do not accurately cover an area and a party requests a supplemental instruction, the trial court is obligated to give the instruction if it properly informs the jury of the applicable law and is supported by the evidence.” Id.
A party may object to the giving or the failure to give a jury instruction, “only if the party objects on the record before the jury retires to consider the verdict (or, in the case of instructions given after deliberations have begun, before the jury resumes deliberations)[.]” MCR 2.512(C). Objections must “stat[e] specifically the matter to which the party objects and the grounds for the objection.” Id. The court must give the objecting party the opportunity to make the objection without the jury present. Id.
The “only if” language in MCR 2.512(C) “does not act as a bar to proceedings in the trial court, but rather as a restriction on appeal.” People v Craft, 325 Mich App 598, 605 (2018). Accordingly, “a party can alter its position on the appropriateness of jury instructions [during trial court proceedings] when a question is subsequently raised,” and “is not barred from asking for supplemental instructions even if the party . . . earlier acquiesced to the original . . . instructions.” Id. at 600, 605 (finding the prosecutor did not waive, and was not estopped, from arguing in favor of supplemental instructions after approving the original instructions).
H.Statement of Issues and Theory of Case
“[A]fter the close of the evidence, each party shall submit in writing to the court a statement of the issues and may submit the party’s theory of the case regarding each issue. The statement must be concise, be narrative in form, and set forth as issues only those disputed propositions of fact that are supported by the evidence. The theory may include those claims supported by the evidence or admitted.” MCR 2.512(A)(2). “The court need not give the statements of issues or theories of the case in the form submitted” by the parties, so long as “the court presents to the jury the material substance of the issues and theories of each party.” MCR 2.512(A)(5).
Claims of instructional error are reviewed de novo, with the instructions being examined as a whole to determine if reversible error occurred. Case v Consumers Power Co, 463 Mich 1, 6 (2000). “Even if somewhat imperfect, instructions do not create error requiring reversal if, on balance, the theories of the parties and the applicable law are adequately and fairly presented to the jury.” Id.
“Without an objection to the trial court’s instructions, appellate review is foreclosed unless the complaining party has suffered manifest injustice.” Hickey v Zezulka, 177 Mich App 606, 616 (1989), aff’d in part, rev’d in part on other grounds 439 Mich 408 (1992).6 “Manifest injustice occurs where the defect in instruction is of such magnitude as to constitute plain error, requiring a new trial, or where it pertains to a basic and controlling issue in the case.” Phinney v Perlmutter, 222 Mich App 513, 557 (1997).