Consistent, accurate and understandable jury instructions are critical to the determination of damages in patent cases. In January 2016 the Federal Circuit Bar Association (“FCBA”) amended its popular model jury instructions. Among other things, the 2016 amendments substantially reframed the instructions regarding the calculation of reasonable royalty damages in patent cases, replacing the fifteen “Georgia-Pacific” factors with a streamlined set of three factors emphasizing the value contribution of the patented technology to the overall product and comparable license agreements. This Essay discusses the history and implications of the FCBA instruction change for reasonable royalty damages. It assesses the adherence of the reformulated damages analysis to the Federal Circuit’s rulings regarding damages calculations in Ericsson v. D-Link and other recent case law, and compares the FCBA instruction with corresponding instructions developed by the American Intellectual Property Law Association (“AIPLA”) and the Northern District of California. We also present new empirical data regarding the use and adoption of model jury instructions in cases in which reasonable royalty damages are adjudicated. We find that a wide variety of instructions are used, partially defeating the goals of consistency and efficiency that model instructions seek to achieve. We conclude by recommending that the Federal Circuit endorse a single set of model jury instructions for patent cases, and that it consider the new FCBA instructions for this purpose. We also urge the FCBA and other organizations developing model jury instructions to continue to emphasize the traditional incremental value approach to patent valuation, and to develop additional jury instructions addressing issues raised by standards-essential patents.
The answer to that question appears to be "yes" at least in Michigan. I say appears because an appellate court this month, in People v. Gary Traver, overturned a defendant's firearm convictions because the judge not only gave improper instructions on the offenses, but also failed to read the instructions to the jury. Instead, the judge merely handed the instructions to the jurors. While it is not certain that the appellate court would have overturned the defendant's conviction only because the judge failed to read the instructions, it is clear that the appellate court believes that reciting the instructions to the jury is critical. According to the appellate court,
[t]here are important reasons that in the English and American legal traditions, jury instructions are always spoken. “Reading a complete set of instructions after the evidence ensures that the jury hears and considers all applicable law before deliberations.” State v Nelson, 1998 SD 124; 587 NW2d 439, 444 (1998). “Instruction of the jury is one of the most fundamental duties of the court and it is only through their oral delivery that the court can be assured that the jury has actually received all of the instructions.” State v Norris, 10 Kan App 2d 397, 401; 699 P2d 585 (1985).
Understanding the law is difficult. Getting juries to understand the law is more difficult. Yet we provide evidence that it can be done, even in complex areas such as antitrust. This Article tests whether jury instructions can be written in a way that maintains fidelity to the law - indeed, improves on fidelity to the law compared to standard jury instructions - while also permitting jurors to understand the relevant legal standards. But it goes further than that. It proposes making empirical testing an integral part of drafting model jury instructions. It also shows that such empirical testing is feasible by harnessing the power of the Internet. It undertakes those efforts by drafting and testing jury instructions in two challenging areas of antitrust law. The results of the empirical testing provide reason for optimism about the prospects of juries understanding the law, if those who draft jury instructions test whether they are comprehensible and modify draft jury instructions in light of empirical results.
The Constitution protects us from criminal conviction unless the government can prove guilt beyond a reasonable doubt. However, after defining reasonable doubt, many trial courts will then instruct jurors that “you are not to search for doubt. You are to search for the truth.”
Defendants have repeatedly challenged such truth-related language, arguing that it lowers the government’s burden of proof to a mere preponderance of the evidence. That is, if the government’s version of events is only slightly more credible than the defendant’s, it follows that, in a search for the truth, jurors would be obligated to convict.
Appellate courts concede that instructing jurors to search for the truth is not proper and may lower the government’s burden. However, these same courts refuse to reverse defendants’ convictions because, the courts claim, in the context of the instruction as a whole, jurors are probably not influenced by the truth-related language.
In this Article we empirically test this judicial claim. We recruited 300 participants to serve as mock jurors. Every juror read the same case summary of a hypothetical criminal trial. Jurors were then randomly assigned to one of three groups, with each group receiving a different jury instruction on the government’s burden of proof.
One of the groups was instructed on reasonable doubt, but then told “you are not to search for doubt. You are to search for the truth.” This group’s conviction rate was nearly double that of the group that received a standard reasonable doubt instruction, and was statistically identical to the group that received no reasonable doubt instruction at all.
This finding contradicts the courts’ conclusion that truth-related language has no impact on juror decision-making, and is strong evidence that such language not only lowers, but actually eviscerates, the government’s burden of proof in criminal cases.
Florida has recently updated its instructions on the use of electronic devices by jurors. I like these updates because they provide the all important "why." As I have stated numerous times before, if you want jurors to buy-in to the rules you have to tell them why the rules are important.
The treatment of circumstantial evidence has undergone a dramatic change over time, from a high level of scrutiny to widespread acceptance. Similarly, our understanding of direct evidence has evolved, as wrongful convictions have exposed the potential unreliability of eyewitnesses and confessions. In accordance with the changing views of each type of evidence, this Note identifies two distinct policy goals of circumstantial and direct evidence jury instructions. The first is to establish an equality of import between the two types of evidence, to combat juror bias that leads to the under or overvaluing of one type over the other. The second, which seems to be in conflict with the first, is to promote a higher level of care during jury deliberations, so that jurors do not casually make incorrect or unfounded factual inferences. However, these goals can be reconciled if we acknowledge that all kinds of evidence are highly probative, and subject to similar dangers from inference. By evaluating three different states’ circumstantial and direct evidence jury instructions for comprehensibility and effective advocacy of policy goals, this Note identifies what is done well and what diminishes the efficacy of the instruction, and then offers various solutions in the form of altered instructions. Ultimately, this Note concludes that the most effective solution is to create a new instruction that combats the dangers of inference, appeals to jurors’ appreciation of a reasonable alternative narrative, and eliminates the unnecessary distinction between direct and circumstantial evidence.
In the state of New York, it is a "matter of strategy and tactics which ultimately rests with defense counsel." This was determined last month in People v. Colville.
The issue arose from the murder trial of Delroy Colville. In that case, the defendant was charged with second degree murder. The defendant claimed self-defense.
The defense attorney wanted to give the jury instructions on two lesser included offenses: first and second degree manslaughter. However, the defendant opposed the instructions. Although the judge agreed with defense counsel, he followed the defendant's wishes and did not give the additional instructions to the jury.
The jury convicted the defendant and he appealed. The intermediate appellate division unanimously affirmed. However, the state high court overturned the conviction finding that "[b]y deferring to defendant, the judge denied him the expert judgment of counsel to which the Sixth Amendment entitles him."
The Judicial Conference Committee for the federal courts has recently updated its instructions regarding jurors and social media. These new instructions are available here. My brief observations and comments about the instructions are as follows.
1. First, I find it interesting that the courts found it even necessary to update their instructions. Not too long ago, (6 months) the courts released a "study" (based on the views of federal judges) that jurors were adhering to the court's rules on improper communications and research. Go here for my post on that study.
2. As for the instructions themselves, they are an upgrade from the previous instructions; however, they don't, among other things, address the "why" question. If you want today's jurors to follow court instructions, you have to tell jurors why they are important. In the Digital Age, it is too easy for jurors to communicate and conduct research about a case. If courts want jurors to trust them and not Google, they need to tell jurors why they should follow the court's instructions.
3. In addition, these rules don't tell jurors that they can't friend the attorneys. Recently, a juror not only sent a friend request to an attorney, but also asked if the attorney was single. For more on that issue go here.
4. These rules also fail to adequately inform jurors about the consequences and penalties for violating the court's instructions.
5. Finally, I have previously discussed and analyzed an earlier version of these jury instructions in which I go more in depth in pointing out their shortcomings. Go here for my law review article on that topic. That law review article also contains my proposed jury instructions.
This article by the Arizona Daily Star gives the pros and cons of allowing jurors to ask questions in criminal trials. Arizona is one of the few states (Indiana and Colorado are the others) to give jurors the right to ask questions during criminal cases. However, other states, like Michigan, are testing the idea. Finally, in civil cases, the practice is much more common.