When Problems Arise: Mid-trial Jury Instructions

In a jury trial the trial judge will provide instructions to the jury to assist them in performing their task. This will include general instructions at the beginning of the trial and a more thorough "charge" at the end of the case before they begin their deliberations. We will get into the charge in more detail in a later post. Today we look at the less predictable type of instruction – the mid-trial instruction.

Depending on how the evidence comes out during the trial there may be a need for the trial judge to given immediate instructions to the jury on the use they can make of what they just heard. That can include limits on what use can be made of certain evidence or that they are to disregard what a witness has just said.

Whether a mid-trial instruction is required is a matter of discretion for the trial judge

It will generally be appropriate where a real danger exists that prejudice will be caused if the jury isn’t told what to do. An easy example is when evidence of bad character for the accused is lead.

The Crown is prohibited from leading evidence that the accused has committed other offences. This is because of the danger that the jury will engage in propensity reasoning. It has been said that:

Propensity reasoning also imperils the overall fairness of the criminal trial process.  It is a fundamental tenet of our criminal justice system that persons are charged and tried based on specific allegations of misconduct.  If an accused is to be convicted, it must be because the Crown has proved that allegation beyond a reasonable doubt and not because of the way the accused has lived the rest of his or her life.  An accused must be tried for what he or she did and not for who he or she is. The criminal law’s reluctance to permit inferences based on propensity reasoning reflects its commitment to this fundamental tenet: R. v. Kerr, 2013 BCCA 506.

Sometimes a witness will unexpectedly say something about the accused’s background. This will likely trigger a need for the jury to be told immediately that they should not allow any propensity reasoning to seep into their minds as the rest of the case unfolds.

In effect, the mid-trial instruction is geared at nipping a problem in the bud rather than allowing it to fester.