By: April Campbell
A good jury instruction is for self-defense what ham is to a ham sandwich: indispensable. But as of late, many trial courts have been getting it wrong. When one considers the Ohio legislatures 2019 changes to self-defense, that comes as no surprise. See R.C. 2901.05. But for whatever reason confusion abounds, improper instructions on self-defense have spawned a series of reversals in Ohio’s appellate courts. See e.g., State v. Parrish, 1st Dist. No. C-190379, 2020-Ohio-4807; See e.g., State v. Claren, 2020-Ohio-615, 152 N.E.3d 449 (9th Dist.).
Illustrating this point is one case from the Third District. State v. Flory, 3d Dist. Van Wert No. 15-20-02, 2020-Ohio-5136, (Nov. 2. 2020). This is a case in which all parties understood that the burden to disprove self defense rested on the State’s shoulders. The issue was how to articulate that to the jury. The trial court began by instructing the jury correctly. The only problem was that it did not stay on track: In the end, the trial court instructed the jury both that the State had the burden to disprove and that Flory had the burden to prove self-defense. Confusing!
Because the trial court gave the jury conflicting instructions on self-defense, the Third District reversed. Why? Because when a trial court delivers conflicting instructions, an appellate court cannot assume that the jury follows the right instruction when convicting someone.
Several takeaways arise from this opinion. For one, always object to an instruction you are not sure is right. That way, your client’s fate is not pinned to the plain error standard. But more importantly, if you find a jury instruction confusing, the jury might too. Fight for the self-defense instruction that you believe is correct, and watch for emerging case law on this important issue.