People v. Johnson

Saxe, J. (concurring).

Appellate courts reviewing jury instructions frequently take issue with portions of the charge without doing more than indicating disapproval. After all, we are required to consider errors in the context of the charge as a whole (see Cupp v Naughten, 414 US 141, 146-147 [1973]). Yet, there comes a time when repeated appellate admonitions have proven futile in preventing charge errors which have the effect of causing jury confusion. Since I believe such charge errors happened in this case, I conclude that a new trial is necessary here.

Trial judges must always be mindful…