Rethinking Jury Charge Error as Constitutional Error

One of the greatest fictions known to the law is that a jury of twelve laymen can hear a judge read a set of instructions once, then understand them, digest them, and correctly apply them to the facts in the case. It has taken the judge and the lawyers years of study to understand the law as stated in those instructions.

—Wylie A. Aitken, The Jury Instruction Process—Apathy or Aggressive Reform? 49 Marq. L. Rev. 137 (1965)

Appellate courts should begin uniformly recognizing jury charge error as Constitutional error, requiring reversal in all but the rarest cases.1 More frankly, jury charge error should be viewed as structural error, the same as not having a lawyer, having people of a certain race excluded from the jury, or having a judge presiding over the trial with a pecuniary interest in the outcome. Alas, the prospects of courts viewing charge error as structural is far fetched. Couching jury charge error in terms of Constitutional error, however, provides the proper respect for the importance instructions play in jury deliberations, adds uniformity to the law, and captures the constitutional nature of jury instructions.

That jury instructions are ubiquitous is undeniable. That jury instructions have been given in trials before the adoption of the Constitution is a matter of historical fact. Judges begin the jury selection process by addressing the prospective jurors and delivering instructions they are sworn to follow. The guilt/innocence phase of trial opens with more instructions, which jurors are told they must follow. The court then provides instructions for the jurors at the close of the trial, telling the jury they are bound to follow the instructions as given; they are required to follow the law as stated by the court even if they disagree with the law; and they are not free to disregard the court’s words.

The court’s instruction set the very framework in which the trial is conducted. An erroneously instructed jury is the equivalent of a doctor conducting a hernia operation using surgical instruments and procedures designed for knee operations. Faulty jury instructions always cause harm, just like conducting a faulty surgery. And it is pure guesswork by appellate judges to surmise that a deficiently instructed jury caused no harm to a defendant pronounced guilty by the erroneously instructed jury. One commentator astutely opined there is no way for an appellate court to determine whether or not the instructions were understood, based on the record. The Jury Instruction Process—Apathy or Aggressive Reform? 49 Marq. L. Rev. 137, 139 (1965). Hence, it is impossible to assume a jury made a rational decision based on faulty instructions, when there is no way of knowing they understood in the first place. Ascribing Constitutional error review to jury charge error affords a proper level of protection to defendants. A short primer on the history of jury instructions would be useful to begin the analysis.

A Brief History of Jury Instructions

In the early 13th century, trial by jury began to evolve. It is safe to assume that at the time juries began to hear and decide cases, judges began to instruct juries. Originally, judges were given free rein over instructions, both as to content and the procedure to be followed. Abuses of this discretion, particularly the “bullying” of juries by judges, led to the adoption of certain restraints. Wylie A. Aitken, The Jury Instruction Process—Apathy or Aggressive Reform? 49 Marq. L. Rev. 137, 138 (1965).

Jury instructions are not a recent development in American jurisprudence. The practice of courts providing jurors with instructions to follow goes back to the founding, and before. In Georgia v. Brailsford, 3 U.S. 1 (1794), the Chief Justice of the United States Supreme Court, John Jay, presided over a trial. The Constitution had been ratified only seven years before this case was tried. At the conclusion of the trial, Chief Justice Jay provided the jury with instructions. The jurors were told they were the judge of the facts, but were to receive the law from the court. Chief Justice Jay instructed the jurors they were free to judge the propriety of the law as well (a wink and a nod to jury nullification).

The concept of jury instructions was something the founders were intimately familiar with when framing and ratifying the Sixth Amendment. Current Sixth Amendment interpretation is determined based on what the founding era constitutional authors would have understood about the trial process. The Supreme Court once stated, “A trial by jury trial should be understood and applied as at common law, including all the essential elements as they were recognized in this country and England when the Constitution was adopted.” Patton v. United States, 281 U.S. 276, 288 (1930). The framer’s understanding of trial would have included jury instructions as part of that process.

Jury instructions were used in state courts early on in the United States. In United States v. Battiste, 24 E Cas. 1042 (C.C.D. Mass. 1835) (No. 14,545), a case decided less than 50 years after the Constitution was ratified, the jury was instructed:

“[I]t [is] the most sacred constitutional right of every party accused of a crime, that the jury should respond as to the facts, and the court as to the law. It is the duty of the court to instruct the jury as to the law; and it is the duty of the jury to follow the law, as it is laid down by the court.”

In State v. Smith, 6 R.I. 33, 36 (1859), about 24 years after Battiste was decided, it was held regarding jury instructions:

“The line between the duties of a court and jury, in the trial of causes at law, both civil and criminal, is perfectly well defined; and the rigid observance of it is of the last importance to the administration of systematic justice. Whilst, on the one hand, the jury are the sole ultimate judges of the facts, they are, on the other, to receive the law applicable to the case before them, solely, from the publicly given instructions of the court. In this way court and jury are made responsible, each in its appropriate department, for the part taken by each in the trial and decision of causes, and in this way alone can errors of fact and errors of law be traced, for the purpose of correction, to their proper sources. If the jury can receive the law of a case on trial in any other mode than from the instructions of the court given in the presence of parties and counsel, how are their errors of law, with any certainty, to be detected, and how, with any certainty, therefore, to be corrected? It is a statute right of parties here, following, too, the ancient course of the common law, to have the law given by the court, in their presence, to the jury, to guide their decision, in order that every error in matter of law may be known and corrected . . . In short, without the aid of authority, if a party, and especially one criminally convicted, shows to us that so well defined a right of trial, as that the jury should receive the law of the case before them, solely, and openly, from the court, has been violated in his person, we dare not refuse him a new trial, to be conducted in the mode which the constitution, as well as the common and statute law, accords to him.” [Emphasis added.]

See also Nicholson v. Commonwealth, 96 Pa. 503 (1879): “The court had an undoubted right to instruct the jury as to the law, and to warn them as they did against finding contrary to it.”

The importance of jury instructions was well established in American jurisprudence by 1859, having had a long tradition in the common law of England. Appellate courts were cognizant that jury charge error meant that a fair trial for a defendant was not had. Nicholson makes clear there was no harmless error review when looking at jury instructions. The appellate courts “dare[d] not refuse” a new trial when there was jury charge error. Revisions to jury instruction law occurred soon after. Jurors were stripped of their right to judge both the law and the facts. Instead, jurors were told they would only be allowed to judge the facts.

The case of Sparf & Hansen v. United States, 156 U.S. 51 (1894), has stood for the proposition that a defendant is not entitled to have a jury instructed that it may not follow the law as given by the Court—i.e., a jury nullification instruction. Sparf & Hansen v. United States declared that jurors were no longer to be instructed on their ability to interpret the law. Jurors were fact finders, nothing more. Juries, post Sparf, were bound to follow the law as given by the court. They were no longer allowed to pass judgment on the wisdom of the law itself. State courts adopted this view, and it exists as the current understanding of jurors’ role in trial.

The historical basis for concluding that jury instructions are a fundamental, time-honoured component of trials, known to the founders, is easily seen. The practice of instructing the jury is an entrenched and established procedure in American criminal jurisprudence. Viewing jury charge errors through non-constitutional harmless error review does not take into account the fundamental nature of the charge and the importance of the instructions to the jury.

What Is Structural in a Trial?

The Supreme Court explained in Arizona v. Fulminante, 499 U.S. 279 (1991), a structural error is a “structural defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.” In certain cases, where structural errors undermine “the fairness of a criminal proceeding as a whole,” a court may reverse “without regard to the mistake’s effect on the proceeding.” Nall, Deborah, S., United States v. Booker: The Presumption of Prejudice in Plain Error Review 81 Chicago-Kent L. Rev.621, 632.

The Supreme Court has held there are certain Constitutional errors that invalidate a conviction even though there may be no reasonable doubt that the defendant is guilty and would be convicted absent the trial error. For example, a judge in a criminal trial “is prohibited from entering a judgment of conviction or directing the jury to come forward with such a verdict, see Sparf & Hansen v. United States, 156 U.S. 51, 105 (1895); Carpenters v. United States, 330 U.S. 395, 408 (1947), regardless of how overwhelmingly the evidence may point in that direction.” United States v. Martin Linen Supply Co., 430 U.S. 564, 572–573 (1977). A defendant is entitled to counsel at trial, Gideon v. Wainwright, 372 U.S. 335 (1963). See also White v. Maryland, 373 U.S. 59 (1963), where a conviction was set aside because the defendant had not had counsel at a preliminary hearing without regard to the showing of prejudice.

In Vasquez v. Hillery, 474 U.S. 254 (1986), a defendant was found guilty beyond reasonable doubt, but the conviction had been set aside because of the unlawful exclusion of members of the defendant’s race from the grand jury that indicted him, despite overwhelming evidence of his guilt. Vasquez also noted that rule of automatic reversal when a defendant is tried before a judge with a financial interest in the outcome, Tumey v. Ohio, 273 U.S. 510, 535 (1927), despite a lack of any indication that bias influenced the decision. Waller v. Georgia, 467 U.S. 39, 49 (1984), recognized that violation of the guarantee of a public trial required reversal without any showing of prejudice and even though the values of a public trial may be intangible and unprovable in any particular case.

Jury instructions fit neatly into the structural category. Could they be structural? Yes. Will a court in our lifetime hold them structural? Doubtful. So how should they be realistically viewed? Jury instructions should be viewed as providing the court-sanctioned structural and decisional framework for jurors. Jury instructions establish principles of law, burdens of proof, along with standards and methods to weigh evidence, which the jury must follow. Read by the court, jury instructions have the stamp of legitimacy and authority. Jury instructions are designed to educate and guide the jury.2

Further, as one commentator aptly discussed, jury instructions offer a focused moment of Constitutional connection between the court, the defendant, and the jurors. At that moment when the court reads its instructions, jurors are listening and learning about the law and the legal system. While the entire trial process is a participatory and educative experience for jurors, it is at the moment of instruction that jurors are formally educated about their responsibilities, their role, and the system’s expectation of them. Cronan, John P., Is Any of this Making Sense, Reflecting on Guilty Pleas to Aid Criminal Juror Comprehension, 39 Am. Crim. L. Rev. 1187, 1193–94 (2002). See also Ferguson, Andrew Guthrie, Jury Instructions as Constitutional Education, 84 University of Colorado Law Review (forthcoming 2012). The jury instructions are hundreds of years of evolving trial practice, writ large for the jury to take with them to the jury room. If the jury is instructed incorrectly, no amount of appellate review can correct that error.

Some Social Science Research Relating to Jury Instructions

In the past several decades, there has been a significant amount of social science research conducted in the area of jury instructions. Much of the early work investigated the issue of instruction comprehensibility, and was focused on the premise that if jurors do not understand the law, they cannot be expected to apply it. Much of this social science research has indicated that jurors misunderstand a large portion of the instructions they are presented with. Some research has found comprehension rates for jury instruction to be below 65 percent.3

That jury instructions are misunderstood by jurors is not a new phenomenon in law. “The lawyers and judges are perfectly aware that juries pay scant attention to the type of instructions commonly given them on the law applicable to the facts and, that as a rule, they are incapable of the fine discrimination such an application requires. But it is impressive to the public and it clothes the jurors with a sanctimonious mantle of enlightenment which gives them a sense of peace and accord with authority. Trial lawyers may consume a great deal of time on instructions, but little of it is wasted on attempting to force the jury’s attention to them. It is usually as futile as reading a decision of the Supreme Court to a justice of the peace or arguing the Constitution with a policeman.” Wylie A. Aitken, The Jury Instruction Process—Apathy or Aggressive Reform? 49 Marq. L. Rev. 137 (1965).

This lack of comprehension becomes especially apparent, and all the more dangerous, when dealing with burdens of proof, procedural issues, and presumption of innocence instructions. A study conducted in 1976 found that only 50 percent of individuals presented with the Florida Pattern Jury Instructions understood that the defendant did not have to present evidence, and that the State had the burden of proof. In another study from 1992, only one third of jurors who had served on a criminal jury were found to have correctly understood the burden of proof was on the prosecution. See Lieberman, Joel D. & Krauss, Daniel A., Jury Psychology: Social Aspects of Trial Process, 2009 MPG Books. LTD, Bodmin, Cornwall p. 138.

When the historic underpinnings of jury instructions are confronted with the research data available about the incomprehensibility of jury instructions in many cases, their importance and fundamental role in the Fifth, Sixth, and Fourteenth Amendments’ guarantee to a fair jury trial conducted in accordance with law, by an fair and impartial jury, becomes evident.

Why Should Jury Charge Error Be Considered Constitutional Error?

The verdict of a jury who does not comprehend the law amounts to “cracker-barrel justice.”

—423 Mich. L. Rev. 276, 278 (1925)

First, jury charge errors are not like other trial errors. Consider the erroneous admission of evidence obtained in violation of the Constitution. When a trial court allows evidence to be introduced that was obtained in violation of the Fourth Amendment, at least defense counsel can put on evidence to rebut or refute the erroneously admitted evidence. In response to the erroneously admitted, defense counsel could argue the drugs were not his client’s, or the illegally seized weapon does not match the ballistics report adequately to find his client guilty. Defense counsel can argue something to mitigate the damage. The defendant enjoys no such procedural protection with erroneous jury instructions.

Neither a defendant nor his lawyer has any right to suggest the jurors disregard the court’s instruction.4 In fact, every single federal appellate circuit that has pattern jury instructions tells the jurors they are not free to disregard any portion of the instructions.5 Along with federal courts, the substantial majority of State courts have pattern jury instructions mirroring our federal counterparts.6 Arguing to a jury to disregard the court’s instructions would likely get defense counsel an early termination of his/her summation, and a quick trip back to counsel’s table.

The charge, as read to the jury, is judicial gospel. That is not an overstatement. That is the practical reality of these documents, and society’s view of judges (except maybe in Cameron County).7 Speak with any juror after a verdict, and they will tell you they rely on the instructions, and sift through the instructions for guidance. The jury charge is not part of the trial process, it is the trial process, writ large.

I have invoked Justice Scalia in several writings concerning the Sixth Amendment. While some in the defense bar (myself included) may view many of Justice Scalia’s opinions with a jaundiced eye, that is not the case with his Sixth Amendment jurisprudence. Justice Scalia is a purist when it comes to Sixth Amendment rights. There is no diluting what one is entitled to under the Sixth Amendment, in his view. Time and again, I return to his eloquent dissent in Neder, stating he would find jury charge error to never be harmless (in other words, at least Constitutional error, or possibly even structural error). Justice Scalia’s dissent in Neder reads as follows:

“Article III, § 2, cl. 3 of the Constitution provides:

“The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury. . . .” The Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury. . . .” When this Court deals with the content of this guarantee—the only one to appear in both the body of the Constitution and the Bill of Rights—it is operating upon the spinal column of American democracy. William Blackstone, the Framers’ accepted authority on English law and the English Constitution, described the right to trial by jury in criminal prosecutions as “the grand bulwark of [the Englishman’s] liberties . . . secured to him by the great charter.” 4 W. Blackstone, Commentaries at 349. One of the indictments of the Declaration of Independence against King George III was that he had “subjected us to a Jurisdiction foreign to our Constitution, and unacknowledged by our Laws” in approving legislation “for depriving us, in many Cases, of the Benefits of Trial by Jury.” Alexander Hamilton wrote that “the friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury: Or if there is any difference between them, it consists in this, the former regard it as a valuable safeguard to liberty, the latter represent it as the very palladium of free government.” Neder dissent at 30.

Applying Justice Scalia’s rationale, the historical prevalence of jury instructions, the ubiquitous nature of jury instructions today, the recent revisions in Sixth Amendment jurisprudence by the Supreme Court, and the social science data discussed above, preservation of fundamental fairness and Due Process8 rights require viewing jury instructions as constitutional. This means finding that jury charge error is constitutional error, regardless of harm.


It is simply impossible to know, without engaging in pure speculation, what effect erroneous jury instructions actually have on a jury. Arizona v. Fulminante, 499 U.S 279, 331 (1991). When reviewing the erroneous admission of evidence, appellate courts exclude the illegal evidence, and review the remainder of the evidence to determine whether the admission of the erroneous evidence was harmless beyond a reasonable doubt. Arizona v. Fulminante, 499 U.S 279, 310 (1991). That kind of evidentiary gerrymandering cannot be done with jury charge errors. To review jury charge error in such a fashion requires an appellate court to craft a hypothetically correct jury charge and sit as the 13th jury member (sound familiar?). The entire framework of the trial, from beginning to end, is infected by the absence of proper jury instructions.

Incorrect jury instructions mean the facts of the case are being viewed by the jury through a clouded legal prism. Light cannot refract through a clouded prism into its constituent parts. And truth cannot be expected to properly refract through the minds of jurors when clouded by erroneous instruction. Harm resulting from jury charge error should be presumed. Jury charge error should be constitutional error requiring reversal.


1. Texas Rules of Appellate Procedure 44.2.(a) : Reversible Error in Criminal Cases Constitutional Error: If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.

2. Strict legal correctness was once the primary concern of the courts at the appellate level, and this naturally became the main concern of the trial judges, who were fearful that their charges might be struck down by the higher courts. The Jury Instruction Process—Apathy or Aggressive Reform? 49 Marq. L. Rev. 137, 139 (1965). Thanks to harmless error review and the “hypothetically correct jury charge,” there is no more fear at the trial court level.

3. See Lieberman, Joel D. & Krauss, Daniel A., Jury Psychology: Social Aspects of Trial Process, 2009 MPG Books. LTD, Bodmin, Cornwall p. 131. Seminal works by Sales, B. D., Elwork, A., & Alfini, J. (1977): Improving Comprehension for Jury Instructions. In B. D. Sales (Ed.), The criminal justice system (pp. 23–90). New York: Plenum, Elwork, Sales, and Alfini (1977, 1982), and Charrow, R. P., & Charrow, V. (1979). Making Legal Language Understandable: A Psycholinguistic Study of Jury Instructions. Columbia Law Review, 79, 1306–1374. Elwork et al. Joel D Lieberman & Bruce D. Sales, Jury Instructions: Past, Present, and Future, 6 Psycho., L. & Pub. Pol. 587 (2000).

4. Although one creative and brave federal judge did give the following instruction to a jury and was approved by the appellate court. I will request this instruction from here on out in all my trials. It is an accurate instruction that encapsulates the burden and decision-making authority in the trial very well:

“Federal trial judges [insert State judges as the need arises] are forbidden to instruct on jury nullification, because they are required to instruct only on the law which applies to a case. As I have indicated to you, the burden in each instance which is here placed upon the Government is to prove each element of the offenses . . . beyond a reasonable doubt, and in the event the Government fails to sustain its burden of proof beyond a reasonable doubt as to any essential element of any offense charged against each defendant, it has then failed in its burden of proof as to such defendant and that defendant is to be acquitted. In short, if the Government proves its case against any defendant, you should convict that defendant. If it fails to prove its case against any defendant you must acquit that defendant.” See United States v. Sepulveda, 15 F.3d 1161, 1190 (1st Cir. 1993).

5. The following is a list of the jury instructions from various federal circuits, which state in no uncertain terms that jurors are not allowed to ignore the court’s instructions:

First Circuit Court of Appeals

Pattern Criminal Jury Instruction 1.01 for the 1st Circuit Court of Appeals:

“You will hear the evidence, decide what the facts are, and then apply those facts to the law I give to you. That is how you will reach your ver­dict. In doing so you must follow that law whether you agree with it or not. The evidence will consist of the testimony of witnesses, documents and other things.”

Pattern Criminal Jury Instruction 3.01 for the 1st Circuit Court of Appeals:

“It is your duty to apply the law exactly as I give it to you, whether you agree with it or not.”

Third Circuit Court of Appeals

Model Criminal Jury Instruction 1.02 for the 3rd Circuit Court of Appeals:

“You must apply my instructions about the law. Each of the instructions is important. You must not substitute your own notion or opinion about what the law is or ought to be. You must follow the law that I give to you, whether you agree with it or not.”

Model Criminal Jury Instruction 3.01 for the 3rd Circuit Court of Appeals:

“Your second duty is to apply the law that I give you to the facts. My role now is to explain to you the legal principles that must guide you in your decisions. You must apply my instructions carefully. Each of the instructions is important, and you must apply all of them. You must not substitute or follow your own notion or opinion about what the law is or ought to be. You must apply the law that I give to you, whether you agree with it or not.”

Sixth Circuit Court of Appeals

Pattern Criminal Jury Instruction 1.02(2) for the 6th Circuit Court of Appeals:

“It is my job to instruct you about the law, and you are bound by the oath that you took at the beginning of the trial to follow the instructions that I give you, even if you personally disagree with them.”

Seventh Circuit Court of Appeals

Pattern Criminal Jury Instruction 1.01 for the 7th Circuit Court of Appeals:

“Your second duty is to apply the law that I give you to the facts. You must follow these instructions, even if you disagree with them. Each of the instructions is important, and you must follow all of them.”

Eight Circuit Court of Appeals

Model Criminal Jury Instruction 1.01 for the 8th Circuit Court of Appeals:

“[Y]ou must follow my instructions, whether you agree with them or not. You have taken an oath to do so.”

Model Criminal Jury Instruction 3.02 for the 8th Circuit Court of Appeals:

“It is your duty to find from the evidence what the facts are. You will then apply the law, as I give it to you, to those facts. You must follow my instructions on the law, even if you thought the law was different or should be different.”

Ninth Circuit Court of Appeals

Model Criminal Jury Instruction 1.1 for the 9th Circuit Court of Appeals:

“To the facts as you find them, you will apply the law as I give it to you, whether you agree with the law or not.”

Model Criminal Jury Instruction 3.1 for the 9th Circuit Court of Appeals:

“It is also your duty to apply the law as I give it to you to the facts as you find them, whether you agree with the law or not. You must decide the case solely on the evidence and the law and must not be influenced by any personal likes or dislikes, opinions, prejudices, or sympathy. You will recall that you took an oath promising to do so at the beginning of the case.”

6. I selected just a few of the States that have model jury instructions to show they all contain identical language to our federal counterparts:


Model Jury Instruction:

“You must follow the law as I explain it to you, even if you disagree with it. If you believe that the attorneys’ comments on the law conflict with my instructions, you must follow my instructions.”


Model Criminal Jury Instruction: Chapter B: Jury Orientation: Before Opening Statements:

“It is my job to decide what rules of law apply to the case. You must follow all of the rules as I explain them to you. Even if you disagree or do not understand the reasons for some of the rules, you must follow them. You will then apply these rules to the facts which you will determine from the evidence. In this way you will determine whether the prosecution has proven the guilt of the defendant beyond a reasonable doubt.”

Model Criminal Jury Instruction:

E 01
“It is my job to decide what rules of law apply to the case. While the lawyers may have commented during the trial on some of these rules, you are to be guided by what I say about them. You must follow all of the rules as I explain them to you. Even if you disagree or don’t understand the reasons for some of the rules, you must follow them.”


Criminal Jury Instructions:

“You will follow the instructions as to the law that applies in this case as I will explain it to you. You must follow the instructions as to the law, whether or not you agree with it. As jurors you must put aside your personal opinions as to what the law is or should be, and you must apply the law as I instruct. You will apply the law, as instructed, to the facts you find, based on the evidence, and in that way reach your verdict.”


Standard Jury Instructions for Criminal Cases:

“These are some general rules that apply to your discussion. You must follow these rules in order to return a lawful verdict:

You must follow the law as it is set out in these instructions. If you fail to follow the law, your verdict will be a miscarriage of justice. There is no reason for failing to follow the law in this case. All of us are depending upon you to make a wise and legal decision in this matter.”


Circuit Court Standard Jury Instructions

“I will instruct you in full as to the law applicable to the case. It will be your duty to accept the law as defined in these instructions and to follow it.”

“[Y]ou must follow these instructions even though you may have opinions to the contrary. You must consider all of the instructions as a whole and consider each instruction in the light of all of the others. Do not single out any word, phrase, sentence or instruction and ignore the others. Do not give greater emphasis to any word, phrase, sentence or instruction simply because it is repeated in these instructions.”


Individual Idaho Criminal Jury Instructions:

ICJI 001: 
“In applying the Court’s instructions as to the controlling law, you must follow those instructions regardless of your opinion of what the law is or what the law should be, or what any lawyer may state the law to be.”

ICJI 201: 
“You must follow all the rules as I explain them to you. You may not follow some and ignore others. Even if you disagree or don’t understand the reasons for some of the rules, you are bound to follow them. If anyone states a rule of law different from any I tell you, it is my instruction that you must follow.”

7. “It is obvious that under any system of jury trials the influence of the trial judge on the jury is necessarily and properly of great weight, and that his lightest word or intimation is received with deference, and may prove controlling.” Starr v. United States, 153 U.S. 614, 626 (1894) (citing Hicks v. United States, 150 U.S. 442, 452 (1893)); see also Bollenbach v. United States, 326 U.S. 607, 612 (1946).

8. Due Process is unique. Due Process is not a hyper-technical concept defined with a fixed content, removed from real-world considerations such as time, place, and circumstances. Mathews v. Eldridge, 424 U.S. 319, 334 (1976). The constitutional principle encompassed by the founders in the phrase “Due Process” expresses the overarching constitutional goals and expectations of fundamental fairness to all—a requirement whose meaning and application can be as opaque and malleable as its importance is lofty. Due Process should be considered as the touchstone of all things just and fair in American jurisprudence.

Applying the Due Process Clause is therefore an uncertain enterprise that requires judicial divination of what fundamental fairness consists of in a particular scenario. The court’s constitutional discovery of fairness and justice is done by first considering any relevant precedents, and then by assessing the several interests that are at stake, oftentimes in competition with one another, and the interplay of those interests. See Lassiter v. Dep’t of Social Services, 452 U.S. 18 (1981).

The most instructive and oft-cited case thus far on the application of Due Process for constitutional issues is Mathews v. Eldridge, 424 U.S. 319 (1976). The Eldridge court articulated three elements that need to be rigorously assessed in deciding what Due Process requires in terms of procedural safeguards established by a Court. The three Eldridge interests are as follows: (1) the private interests at stake, (2) the government’s interest, and (3) the risk that the procedures used will lead to erroneous decisions. A court must balance these competing elements against each other to decipher the demands of Due Process in order that justice may be satisfied.

Johnathan Ball
Johnathan Ball
Johnathan Ball received a degree in political science from Texas A&M University with a minor in philosophy and his JD from St. Mary’s University Law School. Johnathan lives in McAllen, Texas, where he practices primarily criminal defense. In addition to TCDLA, Johnathan is a member of National Association of Criminal Defense Lawyers, the American Civil Liberties Union (ACLU), and the Hidalgo County Bar Association-Criminal Defense. Married with two children, he has been in private practice since 2004.

Johnathan Ball received a degree in political science from Texas A&M University with a minor in philosophy and his JD from St. Mary’s University Law School. Johnathan lives in McAllen, Texas, where he practices primarily criminal defense. In addition to TCDLA, Johnathan is a member of National Association of Criminal Defense Lawyers, the American Civil Liberties Union (ACLU), and the Hidalgo County Bar Association-Criminal Defense. Married with two children, he has been in private practice since 2004.

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