Michigan Criminal Defense Attorney Recent Amendment to the Criminal Jury Instructions

October 2011


Jury Reform Instructions Adopted by
the Michigan State Bar Standing Committee on Standard Criminal Jury Instructions


Note to users:


The Michigan State Bar Standing Committee on Standard Criminal Jury Instructions submitted interim proposed jury Instructions for the bench and bar to use after September 1, 2011, the effective date of the “Jury Reform” amendments to the Michigan Court Rules. On September 17, 2011, the committee issued the following new and amended jury instructions to more completely reflect the “Jury Reform” court rules. Please see the PDF file of the amendments, showing all changes and providing important Use Notes.


CJI2d 2.3 Trial Procedure – amended

CJI2d 2.5a Interim Commentary by Attorneys – new

CJI2d 2.9 Questions by Jurors Allowed – amended

CJI2d 2.17 Notetaking Allowed – amended

CJI2d 3.5 Evidence – amended

CJI2d 3.5a Summary of Evidence- new

CJI2d 3.11 Deliberations and Verdict – amended

CJI2d 3.12 Deadlocked Jury – amended

CJI2d 3.15 Exhibits – amended

CJI2d 3.16 Written or Electronically Recorded Instructions in the Jury Room – amended



CJI2d 2.3

Trial Procedure


            (1) A trial follows this procedure:

            (2) First, the prosecutor makes an opening statement, where [he / she] gives [his / her] theories about the case. The defendant’s lawyer does not have to make an opening statement, but [he / she] may make an opening statement after the prosecutor makes [his / hers], or [he / she] may wait until later. These statements are not evidence. They are only meant to help you understand how each side views the case.

            (3) To prove the charge(s) the prosecutor must prove the following beyond a reasonable doubt:

            [Read elements of the offense(s). Since the elements of the offense(s) may contain legal terms, definitions of those terms should also be given.]

            (4) Next, the prosecutor presents [his / her] evidence. The prosecutor may call witnesses to testify and may show you exhibits like documents or objects. The defendant’s lawyer has the right to cross-examine the prosecutor’s witnesses.

            (5) After the prosecutor has presented all [his / her] evidence, the defendant’s attorney may also offer evidence, but does not have to. By law, the defendant does not have to prove [his / her] innocence or produce any evidence. If the defense does call any witnesses, the prosecutor has the right to cross-examine them. The prosecutor may also call witnesses to contradict the testimony of the defense witnesses.

            (6) After all the evidence has been presented, the prosecutor and the defendant’s lawyer will make their closing arguments. Like the opening statements, these are not evidence. They are only meant to help you understand the evidence and the way each side sees the case. You must base your verdict only on the evidence.

            (7) You have been given a written copy of the instructions I have just read to you. You may refer to them during the trial. Since no one can predict the course of a trial, these instructions may change at the end of the trial. At the close of the trial, I will provide you with a copy of my final instructions for your use during deliberations.


CJI2d 2.5a

Interim Commentary by Attorneys


            The court will now allow each party to provide interim commentary. The lawyers’ commentaries are not evidence. They are only meant to help you understand the evidence and each side’s legal theories. You should only accept things that the lawyers say that are supported by the evidence or by your own common sense and general knowledge. All of my earlier instructions about basing your decision on the evidence and law continue to apply.


CJI2d 2.9

Questions by Jurors Allowed


            (1) During the trial you may think of an important question that would help you understand the facts in this case. You are allowed to ask such questions.

            (2) You should wait to ask questions until after a witness has finished testifying and both sides have finished their questioning. If you still have an important question after this, do not ask it yourself. Raise your hand, write the question down, and pass it to the bailiff, who will give it to me. Do not show your question to other jurors.

            (3) If your question is not asked, it is because I determined under the law that the question should not be asked. Do not speculate about why the question was not asked. In other words, you should draw no conclusions or inferences about the facts of the case, nor should you speculate about what the answer might have been. Also, in considering the evidence you should not give greater weight to testimony merely because it was given in answer to questions submitted by members of the jury.

            (4) On the other hand, if you cannot hear what a witness or lawyer says, please raise your hand immediately and ask to have the question or answer repeated.


CJI2d 2.17

Notetaking Allowed


            You may take notes during the trial if you wish, but of course you don’t have to. If you do take notes, you should be careful that it does not distract you from paying attention to all the evidence. When you go to the jury room to decide your verdict, you may use your notes to help you remember what happened in the courtroom. If you take notes, do not let anyone except the other jurors see them during deliberations. [You must turn them over to the bailiff during recesses.]

            Your notes will not be examined by anyone, and when your jury service concludes, your notes will be collected and destroyed.


CJI2d 3.5



            (1) When you discuss the case and decide on your verdict, you may only consider the evidence that has been properly admitted in this case. Therefore, it is important for you to understand what is evidence and what is not evidence.

            (2) Evidence includes only the sworn testimony of witnesses [, the exhibits admitted into evidence, and anything else I told you to consider as evidence].

            (3) Many things are not evidence, and you must be careful not to consider them as such. I will now describe some of the things that are not evidence.

            (4) The fact that the defendant is charged with a crime and is on trial is not evidence. [Likewise, the fact that (he / she) is charged with more than one crime is not evidence.]

            (5) The lawyers’ statements and arguments [and any commentary] are not evidence. They are only meant to help you understand the evidence and each side’s legal theories. You should only accept things the lawyers say that are supported by the evidence or by your own common sense and general knowledge. The lawyers’ questions to the witnesses[, your questions to the witnesses,] and my questions to the witnesses are also not evidence. You should consider these questions only as they give meaning to the witnesses’ answers.

            (6) My comments, rulings, questions, [summary of the evidence, ]and instructions are also not evidence. It is my duty to see that the trial is conducted according to the law, and to tell you the law that applies to this case. However, when I make a comment or give an instruction, I am not trying to influence your vote or express a personal opinion about the case. If you believe that I have an opinion about how you should decide this case, you must pay no attention to that opinion. You are the only judges of the facts, and you should decide this case from the evidence.

            (7) At times during the trial, I have excluded evidence that was offered or stricken testimony that was heard. Do not consider those things in deciding the case. Make your decision only on the evidence that I let in, and nothing else.

            [(8) Your decision should be based on all the evidence, regardless of which party produced it.]

            (9) You should use your own common sense and general knowledge in weighing and judging the evidence, but you should not use any personal knowledge you may have about a place, person, or event. To repeat once more, you must decide this case based only on the evidence admitted during this trial.


CJI2d 3.5a

Summary of Evidence


            I will now summarize the evidence for you. It is intended only as a summary and you should consider all of the evidence when deciding this case, even if I do not mention all of the evidence in this summary. Remember that it is your job to decide what the facts of this case are. This is your job and nobody else’s. It is for you to determine the weight of the evidence and the credit to be given to the witnesses, and you are free to decide that something I have not mentioned, but which has been admitted into evidence, is significant to your decision. You are not bound by my summary of the evidence.


[Summarize the evidence.]


            Again, it is for you to determine for yourself the weight of the evidence and the credit to be given to the witnesses. You are not bound by my summation.


CJI2d 3.11

Deliberations and Verdict


            (1) When you go to the jury room, you will be provided with a written copy [copies] of the final jury instructions. [A copy of electronically recorded instructions will also be provided to you.] You should first choose a foreperson. The foreperson should see to it that your discussions are carried on in a businesslike way and that everyone has a fair chance to be heard.

            (2) During your deliberations please turn off your cellphones or other communications equipment until we recess.

            (3) A verdict in a criminal case must be unanimous. In order to return a verdict, it is necessary that each of you agrees on that verdict. In the jury room you will discuss the case among yourselves, but ultimately each of you will have to make up your own mind. Any verdict must represent the individual, considered judgment of each juror.

            (4) It is your duty as jurors to talk to each other and make every reasonable effort to reach agreement. Express your opinions and the reasons for them, but keep an open mind as you listen to your fellow jurors. Rethink your opinions and do not hesitate to change your mind if you decide you were wrong. Try your best to work out your differences.

            (5) However, although you should try to reach agreement, none of you should give up your honest opinion about the case just because other jurors disagree with you or just for the sake of reaching a verdict. In the end, your vote must be your own, and you must vote honestly and in good conscience.


[Use the next paragraph when there are less serious included crimes:]


            (6) In this case, there are several different crimes that you may consider. When you discuss the case, you must consider the crime of [name principal charge] first. [If you all agree that the defendant is guilty of that crime, you may stop your discussions and return your verdict.] If you believe that the defendant is not guilty of [name principal charge] or if you cannot agree about that crime, you should consider the less serious crime of [name less serious charge]. [You decide how long to spend on (name principal charge) before discussing (name less serious charge). You can go back to (name principal charge) after discussing (name less serious charge) if you want to.]

            (7) If you have any questions about the jury instructions before you begin deliberations, or questions about the instructions that arise during deliberations, you may submit them in writing in a sealed envelope to the bailiff.


CJI2d 3.12

Deadlocked Jury


            (1) You have returned from deliberations, indicating that you believe you cannot reach a verdict. I am going to ask you to please return to the jury room and resume your deliberations in the hope that after further discussion you will be able to reach a verdict. As you deliberate, please keep in mind the guidelines I gave you earlier.

            (2) Remember, it is your duty to consult with your fellow jurors and try to reach agreement, if you can do so without violating your own judgment. To return a verdict, you must all agree, and the verdict must represent the judgment of each of you.

            (3) As you deliberate, you should carefully and seriously consider the views of your fellow jurors. Talk things over in a spirit of fairness and frankness.

            (4) Naturally, there will be differences of opinion. You should each not only express your opinion but also give the facts and the reasons on which you base it. By reasoning the matter out, jurors can often reach agreement.

            (5) If you think it would be helpful, you may submit to the bailiff a written list of the issues that are dividing or confusing you. It will then be submitted to me. I will attempt to clarify or amplify the instructions in order to assist you in your further deliberations.

            (6) When you continue your deliberations, do not hesitate to rethink your own views and change your opinion if you decide it was wrong.

            (7) However, none of you should give up your honest beliefs about the weight or effect of the evidence only because of what your fellow jurors think or only for the sake of reaching agreement.


CJI2d 3.15



            When you go to the jury room to deliberate, you may take [your notes and] full instructions.

            If you want to look at any or all of the reference documents or exhibits that have been admitted, just ask for them.


CJI2d 3.16

Written or Electronically Recorded Instructions in the Jury Room


            When you go to the jury room, you will be given a written copy of the instructions you have just heard. As you discuss the case, you should think about all my instructions together as the law you are to follow.


[Use when an electronically recorded instruction is provided:]


            [You will also be given an electronically recorded copy of the instructions you have just heard.]

 Information about

Michigan Criminal Defense Attorney Loren Dickstein


Mr. Dickstein received his Juris Doctor from Wayne State University Law School and a Bachelor of Business Administration from Western Michigan University. He has been admitted to practice law in all Michigan State courts, as well as the United States District Court for the Eastern District of Michigan. He has also been admitted to practice in various federal courts throughout the United States and in several different states, pro hac vice. Prior to becoming a criminal defense attorney, Mr. Dickstein worked as a judicial clerk and legal research clerk for multiple circuit court judges. His experience while working in the criminal courts, has given him invaluable insight into the inner workings of the criminal justice system and the ability to work with the courts to achieve the best possible outcomes for his clients.


As a trial attorney, Mr. Dickstein’s practice focuses on trial work within the criminal areas of practice. Mr. Dickstein has a passion for defending both the falsely accused and those treated unfairly by the authorities or the legal justice system. He has served as lead trial attorney on numerous complex cases and is hired by other lawyers to assist in cases throughout Michigan. He has training from and courtroom experience with nationally prominent medical, psychological and scientific experts. Mr. Dickstein has obtained dismissals and ‘not guilty’ verdicts throughout Michigan.