After the closing arguments, the judge will instruct the jury on the law that they are to apply to the facts in order to reach a verdict. O.C.G.A. § 5-5- 24. The instructions that the judge gives to the jury are “the lamp to guide the juror's feet in journeying through the testimony in search of a legal verdict.” Langston v. State, 208 Ga. App. 175 (1993). Trial courts have a duty to ascertain the law applicable to each case and to instruct the jury accordingly. See Gilchrist v. State, 270 Ga. 287 (1998). To authorize a jury instruction, there must be at least “slight evidence” supporting the instruction. Munn v. State, 313 Ga. 716 (2022); Beard v. State, S23a0906 (December 19, 2023).
The jury instructions are also called the jury charge. Judges do not like there to be any distractions or interruptions when the jury charge is given so spectators who want to see the closing arguments, but not the jury instructions, should leave the courtroom before the judge starts to instruct the jury.
The instructions that the judge will give to the jury will be discussed by the judge and attorneys during a conference, called a charge conference, that usually occurs prior to closing arguments. A defendant's right to be present is not violated by his absence from the charge conference. Coleman v. State, A12A0868. During the charge conference each attorney is given an opportunity to object to the proposed instructions submitted by the other side at the beginning of the trial pursuant to Uniform Superior Court Rule 10.3. The judge will then determine which instructions will be given and which instructions will not be given. To authorize a jury instruction, there need only be slight evidence supporting the theory of the charge. Hamm v. State, S13A1696. The judge does not have to instruct the jury in the exact language that is requested by the attorneys as long as the principle of law is covered. Willis v. State, 316 Ga. App. 258 (2012); Dixson v. State, 313 Ga. App. 379 (2011). Where a written request to charge is either inaccurate, inapt, incorrect, argumentative or covered in the charge given by the judge, the judge does not err in not giving the requested instruction. Cordy v. State, 315 Ga. App. 849 (2012).
An objection voiced at the charge conference does not preserve for ordinary appellate review a party's objection to the charge as subsequently given. Behl v. State, 315 Ga. 814 (2023). Rather, to preserve an objection to a jury charge for ordinary appellate review, the defendant must restate his objection after the court gives its instructions and before the jury retires to deliberate. Blake v. State, 292 Ga. 516 (2013). A party's failure to object to the instruction as given, or to the omission of an instruction, precludes appellate review of the instruction “‘unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties.'” Jivens v. State, S23A1078 (December 19, 2023)
All error in the jury charge are presumed to be prejudicial unless it is shown to be harmless. Errors in the jury charge are harmless if there is no reasonable probability that the error misled the jury or permitted a defendants conviction on an erroneous theory. McGhee v. State, 316 Ga. App. 661 (2012).
Whether the evidence was sufficient to authorize a jury charge is a question of law. Robinson v. State, 277 Ga. App. 133 (2006). Even slight evidence will justify a jury instruction. Williams v. State, 312 Ga. App. 22 (2011); Heard v. State, 149 Ga. App. 92 (1979). The judge can give a jury instruction even though the instruction was not requested in writing at the beginning of the trial as long as the instruction is authorized by the evidence. Gagnon v. State, 240 Ga. App. 754 (1999). Jury instructions that may be abstractly correct should not be given unless they are authorized by the evidence. Dean v. State, 313 Ga. App. 726 (2012).
A criminal defendant is required to inform the judge of the specific objection and the grounds for such objection before the jury retires to deliberate. Any issue is waived on appeal by a failure to object O.C.G.A. § 17-8-58 (a); Fairwell v. State, 311 Ga. App. 834 (2011); Cawthon v. State, 289 Ga. 507 (2011); Laster v. State, 307 Ga. App. 142 (2010). Objections that are made at the charge conference, but not renewed after the actual jury charge, are not preserved for appeal. White v. State, 291 Ga. 7 (2012); Carruth v. State, 290 Ga. 342 (2012); Sapp v. State, 290 Ga. 247 (2011); Palmer v. State, 270 Ga. 278 (1998). The existence of a mere verbal inaccuracy in a jury instruction, resulting from a clear “slip of the tongue” and which could not have misled or confused the jury will not provide a basis for reversal of a defendant's conviction. Green v. State, 291 Ga. 287 (2012); Arthur v. Walker, 285 Ga. 578 (2009); Render v. State, 288 Ga. 420 (2011). The appeals courts will review errors in the jury charge that are not objected to at trial but are raised in a motion for new trial, only if plain error is shown. Kogler v. State, A12A0967. The inquiry of plain error is whether the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the case. Kelly v. State, 290 Ga. 29 (2011); Guajardo v. State, 290 Ga. 172 (2011).