Judges Instruct Juries in Criminal Cases

​After a jury is selected, the judge will swear the jurors in, and the jurors will take an oath to abide by the judge’s instructions throughout the case. The judge will instruct the jury at several points in the case.

Q: When will the judge first instruct the jury?
A: A judge often provides the jury with preliminary or opening instructions before counsel’s opening statements are made and any witnesses are called. These preliminary instructions will tell the jury how they are to approach the evidence and explain their responsibilities as jurors. Commonly, the judge will instruct the jurors about how to conduct themselves during the course of the trial and about how the trial will progress. The judge also will instruct the jurors that they are to decide the case only on the evidence lawfully presented in the courtroom and must not conduct their own investigation, experiments, or research into the facts or law, that they must follow the law contained in the judge’s instructions, and that they must wait until all the evidence has been presented and the case is submitted to them for their group deliberation before they determine guilt or innocence.

Q: What instructions might the judge provide to the jury during the course of the trial?
A: As the trial progresses, the judge may further instruct the jury regarding its consideration of certain testimony. For instance, if the judge concludes certain testimony should not be admitted into evidence, the judge will instruct the jurors to disregard that evidence they may have heard. (Attorneys do try to anticipate before trial what matters should or should not be admitted at trial by filing pretrial motions and asking the judge to rule on points of evidence before the trial begins. There are times, however, when a judge may decline to rule on the matter before trial. Also, a matter may be addressed in testimony that was not anticipated by the parties or the court, and the judge must rule on the matter during the trial.)

Courts generally will assume that jurors will follow a judge’s instructions to disregard evidence. However, there are times when a matter may be so prejudicial to a party that a court cannot reasonably expect or trust that a jury will follow instructions to disregard the evidence. In those situations, a party may ask the judge to declare a mistrial, to dismiss the case and let it start again before a new jury. The judge and the parties will approach with great care the question of whether the jury can be expected to follow a judge’s instructions about disregarding matters they have heard. If the judge finds there is a “manifest necessity” to declare a mistrial, then a new trial will be ordered. But if the judge grants a mistrial when it was not manifestly necessary to do that, the new trial may be barred on the basis of the defendant’s constitutional right to be free from being tried twice for the same crime (double jeopardy).
Q: What kind of instruction does the jury receive when all the evidence is in?
A: When all the evidence has been presented, the case will be submitted to the jury for its determination of guilt or innocence. Before the jury deliberates, the judge will give final instructions to the jury. These instructions include reminding jurors that the prosecutor must prove, beyond a reasonable doubt, each and every element of the crimes the defendant is charged with committing. The judge will define these elements and the meaning of the “proof beyond a reasonable doubt” standard. The judge will also identify and define any defenses that arise from the evidence submitted, any lesser offenses that may also be charged against the defendant, and the order and method of deliberations.  

Jurors will be told that they should listen to one another’s views and try to reach agreement on the case, and that, in order to convict the defendant of any offense, their verdict must be unanimous. They will also be told how to complete the verdict forms. The judge will again emphasize that the jurors must: decide the case solely on the evidence lawfully admitted in the courtroom; deliberate on the facts and the law without sympathy, bias, or prejudice to either side; and respect one another’s views so that a thorough discussion of the facts and the law will occur and a reliable judgment will be reached. 


This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA). It was prepared by Professor Margery Koosed, University of Akron School of Law.  ​​

Articles appearing in this column are intended to provide broad, general information about the law. This article is not intended to be legal advice. Before applying this information to a specific legal problem, readers are urged to seek advice from a licensed attorney.



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