Typo Time! Court of Appeals Rejects Expansive Reading of Rule 10(e)(3), Finds Itself Unable to Declare a Scrivener’s Error on Appeal from Jury Instruction.

Payne v. United States (decided February 23, 2017)

Players: Associate Judges Beckwith and Easterly, Senior Judge Nebeker. Opinion by Judge Beckwith. Concurring opinion by Judge Nebeker.  Jason M. Wilcox for Appellant.  Trial Judge: George W. Mitchell.

Facts: Following a conditional grant of habeas corpus by the D.C. Circuit, the Court of Appeals allowed Mr. Payne to raise a claim of instructional error – whether the trial court committed plain error by instructing the jury, on one of the several occasions where the Government’s burden was discussed, that “it must find the defendant guilty,” if it found that the Government “had failed to prove any element of the offense beyond a reasonable doubt.”

Holding: Considering the claim on plain error review, the Court found no reasonable likelihood that the trial court’s isolated misstatement had prevented the jury from determining Mr. Payne’s guilt in accordance with the Constitution. Slip Op. at 4-7. Judge Nebeker, concurring (perhaps only in part), proposed to decide the case on the alternate basis that the purported instructional error was really a typographical or “scrivener’s” error – i.e., that the court reporter simply failed to transcribe the “not” between “defendant” and “guilty.” Id. at 8.

D.C. Appellate Rule 10(e) provides:

(1) If any difference arises about whether the record truly discloses what occurred in the Superior Court, the difference must be submitted to and settled by that court and the record conformed accordingly. 

(2) If anything material to any party is omitted from or misstated in the record by error or accident, the omission or misstatement may be corrected and a supplemental record may be certified and forwarded:

      (A) on a stipulation of the parties; or

      (B) by the Superior Court before or after the record has been forwarded. 

(3) All other questions as to the form and content of the record must be presented to this court.

Judge Nebeker reasoned that the “true” content of the instruction would “seemingly” fall under Rule 10(e)(2), Slip Op. at 13. However, because “[t]he trial judge and the court reporter are dead and the reporter’s notes are gone,” the Court of Appeals was “in as good a position as a substitute trial court judge to decide” what really happened, which Judge Nebeker viewed as an “other question[] as to the form and content of the record.” Id. at 13-14. Finally, Judge Nebeker reasoned that the trial court’s prior correct statements of the reasonable doubt axiom disproved that it had made a mistake at the time in question on appeal. Id. at 14.

Writing for the Court, Judge Beckwith disagreed that the trial court’s prior correct instructions constituted evidence of a scrivener’s error (“as the government conceded in its brief and at oral argument, even very experienced judges make mistakes”) and further concluded that even if such evidence existed, the trial court would have to decide “whether the record truly discloses what occurred” pursuant to Rule 10(e)(1). Id. at 7 n.4.

Of Note: Attorneys practicing in the Court of Appeals should continue to observe the trial court’s authority to resolve disputes regarding the record, even those which might be classified as “misstatements,” “ommissions,” “errors,” or “accidents.” See Clark v. United States, 147 A.3d 318 331 (D.C. 2016). WC

Read full opinion here

Unpreserved Error, but No Reversal, Where Trial Court Omitted from Reasonable Doubt Instruction Red Book Language Contrasting Burdens of Proof in Civil and Criminal Cases

Daniel Griffin v. United States (decided August 4, 2016)

Players: Associate Judges Fisher & McLeese, and Senior Judge Steadman. Opinion by Judge Fisher. Enid Hinkes for Mr. Griffin. Trial Judge: John McCabe.

Facts: Mr. Griffin was charged with various weapons offenses. Near the end of trial, the court circulated proposed jury instructions. The reasonable doubt instruction was taken verbatim from Red Book Instruction 2.108, except it omitted three lines comparing the burden of proof in civil and criminal cases: In civil cases, it is only necessary to prove that a fact is more likely true than not, or, in some cases, that its truth is highly probable. In criminal cases such as this one, the government’s proof must be more powerful than that. It must be beyond a reasonable doubt. Defense counsel indicated approval of the proposed instructions. When the trial court read the instructions to the jury, it also omitted the opening line of the reasonable doubt instruction: The government has the burden of proving the defendant guilty beyond a reasonable doubt. The defense did not object, and Mr. Griffin was convicted on all counts.

Issue: Did the omissions from the reasonable doubt instruction require reversal?

Holding: On plain error review, the Court of Appeals found instructional error, but held that it did not require reversal. It was clearly error for the trial court to omit language from the Red Book instruction, which replicates the reasonable doubt instruction adopted by the en banc Court in Smith v. United States, 709 A.2d 78, 82 (D.C. 1998) (en banc), because the Smith court advised “in the strongest terms” that trial courts are not to alter or embellish the language it crafted. Id. at 82-83. Nevertheless, the instructions as a whole — which contained the bulk of Red Book Instruction 2.108 along with several other statements that the government must prove each element of the charged offenses beyond a reasonable doubt — “correctly convey[ed] the concept of reasonable doubt” and did “not inaccurately describe that concept or lessen the government’s burden.” As such, the court’s error was not structural in nature and did not affect Mr. Griffin’s substantial rights. Because Mr. Griffin did not satisfy this third prong of plain error review, the Court of Appeals affirmed his conviction.

Of Note:

• The Court emphasized that it continues “to discourage, ‘in the strongest terms,’ any deviation from the instruction prescribed in Smith.

• The Court noted that where the trial court’s jury instructions misdescribe the burden of proof, a structural error results. When preserved by timely objection, such a structural error requires automatic reversal without the traditional harmlessness analysis. When unpreserved, such an error remains subject to plain error review, though the third prong of plain error review is automatically satisfied. FT

Read full opinion here.