COA advice: Leave affirmation out of jury instructions

August 23, 2016

A man’s convictions of battery and disorderly conduct will stand, but the Indiana Court of Appeals cautioned trial courts that including law enforcement affirmations in jury instructions should not, calling the practice “undesirable and completely avoidable.”

Jay Lynn was convicted of the two Class B misdemeanor counts, one of which had been charged as a Class A, after he became unruly and was involved in an altercation with a security guard at an Indianapolis Social Security office. He appealed his conviction on the basis of insufficient evidence and that jury instructions given were fundamental error.

The magistrate in the case when delivering jury instructions read beyond the charges to include the information in the charge stating, “The undersigned affiant does hereby swear or affirm under the penalties of perjury that: On or about 12/12/13, in Marion County, State of Indiana, the following named defendant, Jay Lynn, did knowingly, in a rude, insolent or angry manner, touch Andrew Johnson, another person, and further that said touching resulted in bodily injury to the other person, specifically: pain.”

Judge Terry Crone wrote for the panel that this didn’t rise to the level of fundamental error requiring reversal, and the instruction didn’t invade the province of the jury. Jurors also were advised Lynn was innocent until proven guilty, that each element of the crime must be proven within a reasonable doubt, and that jury instructions were to be considered as a whole.

“Nonetheless, we are compelled to note that, as a general matter, we think that such affirmation language has no place in jury instructions and that the best practice is for trial courts to redact such language,” Crone wrote in Jay Lynn v. State of Indiana, 49A05-1601-CR-4.

“Inclusion of affirmation language of this type raises several potential problems, including that it gives the semblance of attribution to the trial court or to an unknown affiant, who may or may not be available for cross-examination, as to the veracity of the factual basis for the charges.  This is undesirable and completely avoidable. Thus, while the pattern jury instructions do not clearly require redaction, we strongly advise it.”

The panel also found the evidence against Lynn was sufficient to support his conviction.


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