Written By: Eileen GilBride, Lori Vopel & Justin Ackerman

If the judge asks you to email him (or her) your proposed jury instructions, and wants to exchange drafts by email in return, be careful!!!

If you only e-mail your jury instructions to the judge, without actually filing a copy your proposed instructions in the record, your proposed instructions will not be part of the record on appeal.  And if your proposed instructions are not in the record, then you cannot argue on appeal that the trial court erred in refusing one of them.  See State v. Zuck, 134 Ariz. 509, 513 (1982) (“Where matters are not included in the record on appeal, the missing portions of the record will be presumed to support the action of the trial court.”); Bliss v. Treece, 134 Ariz. 516, 519 (1983) (same). While judges might want to do more things electronically (by email or otherwise) these days, that does not preserve the record.  Make sure you file your documents as well!

In addition to ensuring your proposed instructions are filed in the record, you should also ensure that any objections you have to the final instructions are placed on the record.  Simply proposing alternative jury instructions (which were rejected) may not be sufficient to preserve those issues for appeal.  In 2003, the Arizona Court of Appeals held that a party’s failure to object to an erroneous jury instruction waives all but fundamental error.  Data Sales Co. v. Diamond Z Mfg., 205 Ariz. 594, 601 (Ct. App. 2003) (citing ARCP 51(a)).  Fundamental error is that which “goes to the very foundation” of a case.  It “is sparingly applied in civil cases, and only when the error deprives a party of the right to a fair trial.” Czarnecki v. Volkswagen of America, 172 Ariz. 408, 417 (Ct. App. 1991) (other citations omitted).

Moreover, when making these objections, make sure they are specific to the instruction at issue and timely made during the settling of jury instructions.  See Maxwell v. Aetna Life Ins. Co., 143 Ariz. 205, 211–12 (Ct. App. 1984) (party’s general objection to refusal to give all proposed instructions did not preserve for appeal the trial court’s refusal to give a particular requested instruction); Flieger v. Reeb, 120 Ariz. 31, 34 (Ct. App. 1978) (party waived issue on appeal when it did not comment on court’s proposed instruction when asked if there were any additions or corrections needed).

Finally, objections should include: (1) instructions you believe should not be given; (2) instructions that differ from the version you proposed (unless you decide the court’s version is sufficient); and (3) the refusal to include instructions you feel should be given.

When the trial court gives an erroneous instruction, or fails to give one that should have been given, it can constitute reversible error.  See e.g., State v. Hunter, 142 Ariz. 88, 90 (1984) (holding it was fundamental error to give jury instructions improperly shifting the burden of proof to the defense); State v. Mincey, 130 Ariz. 389, 398 (1981), cert. denied, 455 U.S. 1003 (1982) (same).  Don’t risk waiving a good jury instruction issue for appeal by relying solely on your proposed instructions!