Printable Format60-251. Jury instructions; objections; erroneous instructions. (a) Requests. (1) Before or at the close of the evidence. At the close of the evidence or at any earlier reasonable time that the court orders, a party may file and furnish to every other party written requests for the jury instructions it wants the court to give.
(2) After the close of the evidence. After the close of the evidence, a party may:
(A) File requests for instructions on issues that could not reasonably have been anticipated by an earlier time that the court set for requests; and
(B) with the court's permission, file untimely requests for instructions on any issue.
(b) Instructions. The court:
(1) Must inform the parties of its proposed instructions and proposed action on the requests before instructing the jury and before final jury arguments;
(2) must give the parties an opportunity to object on the record and out of the jury's hearing before the instructions and arguments are delivered;
(3) must instruct the jury at the close of evidence, before argument; and
(4) may instruct the jury at any time before the jury is discharged.
(c) Objections. (1) How to make. A party who objects to an instruction or the failure to give an instruction must do so on the record, stating distinctly the matter objected to and the grounds for the objection.
(2) When to make. An objection is timely if:
(A) A party objects at the opportunity provided under subsection (b)(2); or
(B) a party was not informed of an instruction or action on a request before that opportunity to object, and the party objects promptly after learning that the instruction or request will be, or has been, given or refused.
(d) Assigning error; clearly erroneous. (1) Assigning error. A party may assign as error:
(A) An error in an instruction actually given, if that party properly objected; or
(B) a failure to give an instruction, if that party properly requested it and, unless the court rejected the request in a definitive ruling on the record, also properly objected.
(2) Clearly erroneous instruction. A court may consider an error in the instructions that has not been preserved as required by subsection (d)(1) if the giving or failure to give an instruction is clearly erroneous and the error affects substantial rights.
History: L. 1963, ch. 303, 60-251; L. 2010, ch. 135, § 122; July 1.
Source or prior law:
(a). G.S. 1868, ch. 80, § 275; L. 1872, ch. 162, § 1; L. 1881, ch. 126, § 3; L. 1909, ch. 182, § 285; R. S. 1923, 60-2909.
Cross References to Related Sections:
Instructions to jury in criminal prosecution, see 22-3414(3).
Law Review and Bar Journal References:
Objections to instructions under "Fifth" paragraph of G.S. 1949, 60-2909 (now repealed), thoroughly discussed, John F. Eberhardt, 8 J.B.A.K. 335, 337 (1940).
Background of former law (G.S. 1949, 60-2909 §§ 5 to 7) outlined, Wesley E. Brown, 16 J.B.A.K. 160 (1947).
"Prosecutorial Misconduct in Closing Argument," Alan V. Johnson and Jeffrey S. Southard, 49 J.B.A.K. 205, 244, 246 (1980).
"Procedural Pitfalls in Defamation Litigation," Leon B. Graves, 3 J.K.T.L.A. No. 1, 6, 10 (1979).
"The Timing of Jury Instructions," Laurence Rose, 2 J.K.T.L.A. No. 5, 12 (1979).
"Don't Forget the Appellate Courts," Steven M. Dickson, J.K.T.L.A. Vol. XV, No. 5, 6, 8 (1992).
CASE ANNOTATIONS
Prior law cases, see G.S. 1949, 60-2909 and the 1961 Supp. thereto.
1. Subsection (b) considered and applied. Sanford v. Smith, 196 K. 538, 540, 413 P.2d 95.
2. Court required to give general instructions to jury with or without request. Forney v. Gerling, 198 K. 613, 620, 426 P.2d 106.
3. Normally, instructions not entitled to review unless objection made thereto at trial. State v. Patterson, 200 K. 176, 181, 182, 434 P.2d 808.
4. Failure to give requested instruction not assignable error unless matter and grounds of objections stated before jury retired. Bott v. Wendler, 203 K. 212, 222, 223, 453 P.2d 100.
5. Subsection (b) cited in case involving false arrest and malicious prosecution. Thompson v. General Finance Co., Inc., 205 K. 76, 77, 93, 468 P.2d 269.
6. Additional instructions to the jury during its deliberation, outside the presence and with no notice to the parties, held reversible error. Howard v. Miller, 207 K. 246, 249, 485 P.2d 199.
7. Subsection (b) cited and applied. Schmidt v. Farmers Elevator Mutual Ins. Co., 208 K. 308, 314, 491 P.2d 947.
8. Subsection (b) controlling as to challenge of instructions. Brown v. Continental Casualty Co., 209 K. 632, 638, 498 P.2d 26.
9. Subsection (b) applied; waiver of request implied by appellant's actions. State v. Knowles, 209 K. 676, 679, 498 P.2d 40.
10. Subsection (b) applied where no objection was made to instruction on amount of verdict. Ketner v. Atchison, T. & S.F. Rly. Co., 212 K. 453, 455, 510 P.2d 1220.
11. General objection to instruction prevents reversal unless instruction "clearly erroneous"; new trial granted on cumulative effect of errors. Mesecher v. Cropp, 213 K. 695, 702, 518 P.2d 504.
12. Applied; objection to instruction overruled; case determined on issue of lack of negligence. Smith v. Union Pacific Railroad Co., 214 K. 128, 133, 519 P.2d 1101.
13. Subsection (b) applied; trial courts' instructions not clearly erroneous; action on insurance policy. Baugher v. Hartford Fire Ins. Co., 214 K. 891, 900, 522 P.2d 401.
14. Applied; instructions on implied warranty; absence of express provisions; implied warranty of fitness. Franklin v. Northwest Drilling Co., Inc., 215 K. 304, 310, 524 P.2d 1194.
15. Claimed errors with respect to submission of instructions not preserved for review; 60-250(b) applied. Apperson v. Security State Bank, 215 K. 724, 731, 528 P.2d 1211.
16. Subsection (b) mentioned in applying contemporaneous objection rule to juror misconduct claim. State v. Buggs, 219 K. 203, 208, 547 P.2d 720.
17. Request for instructions not reproduced in record; instructions not reviewable. Patte v. Kottwitz, 219 K. 308, 309, 548 P.2d 480.
18. Applied; instruction clearly erroneous in negligence action; not cured by instructions as a whole. Arterburn v. St. Joseph Hospital & Rehabilitation Center, 220 K. 57, 60, 551 P.2d 886.
19. Applied; damage action under Federal Employer's Liability Act; no error in giving or refusing to give instructions. Rediker v. Chicago, Rock Island & Pacific Rld. Co., 1 K.A.2d 581, 589, 571 P.2d 70.
20. Failure to give cautionary instruction not clearly erroneous; conviction affirmed. State v. Marshall & Brown-Sidorowicz, 2 K.A.2d 182, 198, 577 P.2d 803.
21. Section applied; record discloses no objection to the instruction given on damages; becomes law of case. Iseman v. Kansas Gas & Electric Co., 222 K. 644, 649, 567 P.2d 856.
22. Applied; failure to give issues instruction in medical malpractice action not reversible error; award affirmed. Lucas v. Pearce, 223 K. 749, 753, 576 P.2d 670.
23. Objection to instructions considered; general rules stated and applied. Hollinger v. Stormont Hosp. and Training School for Nurses, 2 K.A.2d 302, 306, 578 P.2d 1121.
24. Failure to comply with section; waiver of appellate review. Kiser v. Gilmore, 2 K.A.2d 683, 691, 587 P.2d 911.
25. Defendant could not object to failure to instruct hereunder where failure to request in writing. Chance v. Scroggins, 3 K.A.2d 11, 12, 588 P.2d 479.
26. When general objection to instruction is made, review is limited to whether "clearly erroneous." Coleman v. Brotherhood State Bank, 3 K.A.2d 162, 166, 592 P.2d 103.
27. Cited; instructions given jury erroneous in action based on theory of strict liability. Prentice v. Acme Machine & Supply Co., 226 K. 406, 407, 601 P.2d 1093.
28. Review of previously unchallenged instructions limited to whether they are clearly erroneous. Traylor v. Wachter, 3 K.A.2d 536, 547, 549, 598 P.2d 1061.
29. "Presumption of intent" instruction challenged as erroneous; future use disapproved although not reversible error in this case. State v. Acheson, 3 K.A.2d 705, 712, 601 P.2d 375.
30. Substantial compliance with this section when parties had adequate opportunity to object to instructions outside the presence of the jury. State v. Cutshall, 4 K.A.2d 240, 242, 604 P.2d 288.
31. Instructions given sufficient to cure failure to give accomplice instruction. State v. Ferguson, Washington & Tucker, 228 K. 522, 525, 526, 618 P.2d 1186.
32. Trial court is required to instruct the jury on the law applicable to the facts of each case; court did not err in giving instruction on aiding and abetting. State v. Payton, 229 K. 106, 111, 622 P.2d 651.
33. Giving of outdated instruction clearly erroneous and caused jury to apportion larger share of fault to plaintiff. Eckdall v. Negley, 5 K.A.2d 724, 727, 624 P.2d 473.
34. If instruction not clearly erroneous, objection and grounds for objection must be clearly stated. Cornejo v. Probst, 6 K.A.2d 529, 541, 630 P.2d 1202 (1981).
35. Mentioned; failure to procure insurance; exercise care duty rule discussed and applied. Marshel Investments, Inc. v. Cohen, 6 K.A.2d 672, 684, 687, 634 P.2d 133 (1981).
36. Cited; defendant waived right to a more specific instruction by failing to object to such instruction. State v. Moore, 230 K. 495, 498, 639 P.2d 458 (1981).
37. Minor errors in instructions evident from record; instructions construed together properly stated the law; none clearly erroneous; reversal unwarranted. English Village Properties, Inc. v. Boettcher & Lieurance Constr. Co., 7 K.A.2d 307, 312, 314, 316, 640 P.2d 1280 (1982).
38. Failure to request proper instruction or object to erroneous instruction before jury retires prevents reversal upon grounds of the erroneous instruction. Sieben v. Sieben, 231 K. 372, 375, 646 P.2d 1036 (1982).
39. Absent proper and timely objection to instruction required hereunder, appellate review limited to determination whether instruction clearly erroneous. Hiestand v. Amalgamated Meatcutters & Butcher Workmen, 8 K.A.2d 317, 318, 656 P.2d 783 (1983).
40. Jury instructions are to be considered together and read as a whole; small error in one held not reversible error. State v. Jones, 233 K. 112, 115, 660 P.2d 948 (1983).
41. Error when instruction on tort liability during strike failed to require clear proof standard of Norris-LaGuardia Act, 29 U.S.C. § 106. Hiestand v. Amalgamated Meatcutters & Butcher Workmen, 233 K. 759, 760, 764, 666 P.2d 671 (1983).
42. Subsection (b) cited in dissent where majority found error to show benefits received by plaintiff from source independent of wrongdoer. Allman v. Holleman, 233 K. 781, 793, 667 P.2d 296 (1983).
43. Error noted where instruction on rebuttable statutory presumption fails to clarify burden of proof not shifted to defendant. State v. Johnson, 233 K. 981, 983, 986, 666 P.2d 706 (1983).
44. Where instructions as a whole properly and fairly state the law as applied to facts and jury could not reasonably be misled, no error. Powers v. Kansas Power & Light Co., 234 K. 89, 92, 671 P.2d 491 (1983).
45. Where no showing fatal shooting occurred while defending another, instruction on self-defense as to defendant only was proper. State v. Martin, 234 K. 115, 118, 670 P.2d 1331 (1983).
46. Contention that murder of ex-wife cannot be used as underlying felony to support first-degree murder of another without merit. State v. Knapp, 234 K. 170, 184, 671 P.2d 520 (1983).
47. Instructions to advisory jury could not be clearly erroneous since any error would be harmless. Lostutter v. Estate of Larkin, 235 K. 154, 164, 679 P.2d 181 (1984).
48. Unless clearly erroneous, objection to instruction before jury retires necessary to preserve issue. Douglas v. Lombardino, 236 K. 471, 483, 693 P.2d 1138 (1985).
49. Ordinarily, objections made before jury retires may not be molded into substantially different challenge on appeal. Wentling v. Medical Anesthesia Services, 237 K. 503, 505, 701 P.2d 939 (1985).
50. Instruction in PIK Civ.2d 20.01, or substance thereof, including last two paragraphs, should be included in comparative negligence cases. Nail v. Doctor's Bldg., Inc., 238 K. 65, 68, 708 P.2d 186 (1985).
51. Where only general objection made, new attack against specific provision not permitted later unless instruction clearly erroneous. Tetuan v. A. H. Robins Co., 241 K. 441, 467, 738 P.2d 1210 (1987).
52. Cited; failure to request instruction on intervening acts in medical malpractice action as waiving issue on appeal examined. Wozniak v. Lipoff, 242 K. 583, 599, 750 P.2d 971 (1988).
53. Arguments regarding motion for directed verdict as raising objections regarding instructions on pain and suffering examined. Leiker v. Gafford, 245 K. 325, 342, 778 P.2d 823 (1989).
54. Taxpayer's claim of indemnification against tax preparer for negligence penalty assessed by I.R.S. examined. Bick v. Peat Marwick & Main, 14 K.A.2d 699, 707, 799 P.2d 94 (1990).
55. Party cannot assign as error the giving of jury instruction unless objection raised before jury retires, unless instruction clearly erroneous. Noon v. Smith, 16 K.A.2d 818, 820, 829 P.2d 922 (1992).
56. Accomplice instruction failure only reversible error when clearly erroneous. State v. Thomas, 252 K. 564, 579, 847 P.2d 1219 (1993).
57. Trial court's failure to instruct jury on weighing eyewitness testimony is not clearly erroneous. State v. Richmond, 258 K. 449, 454, 904 P.2d 974 (1995).
58. Subsection (b) does not preclude appeal of decision assessing individual liability where no instruction given or requested thereon. Boyle v. Harries, 22 K.A.2d 686, 692, 923 P.2d 504 (1996).
59. Trial court instruction concerning police duty to protect inmate from violence not clearly erroneous. Jackson v. City of Kansas City, 263 K. 143, 147, 947 P.2d 31 (1997).
60. Failure to object to jury instructions with sufficient specificity to preserve objection on appeal; instructions not clearly erroneous. Hawkinson v. Bennett, 265 K. 564, 581, 962 P.2d 445 (1998).
61. Trial court failure to give cautionary jury instruction concerning eyewitness identification testimony affirmed. State v. Harris, 266 K. 270, 277, 970 P.2d 519 (1998).
62. A party preserves an instruction error claim on appeal by timely objecting at trial and by stating the grounds for the objection. Burnette v. Eubanks, 52 K.A.2d 751, 765, 379 P.3d 372 (2016).
63. Objections to jury instructions must be made on the record, distinctly stating the matter objected to and the grounds for objection, because the statute's purpose is to afford the district court an opportunity upon second thought to correct an inadvertent or erroneous failure to instruct the jury on the law applicable to the issues. Biglow v. Eidenberg, 308 K. 873, 886, 424 P.3d 515 (2018).