by David Kim

The Supreme Court of Oregon, sitting en banc, held that Oregon Rule of Civil Procedure (“ORCP”) 59 B, which applies in criminal cases through ORS 136.330, requires a trial court, at the conclusion of trial and before the jury retires to deliberate, to orally state all matters of law necessary for the jury’s information in giving its verdict, even if some of those same instructions were read earlier as preliminary instructions. Construing the phrase “in charging the jury” to refer to the final oral charge, the Court concluded that ORCP 58 B is not inconsistent with that requirement. Preliminary instructions are required, and some overlap is permissible. But preliminary instructions cannot substitute for the complete oral statement ORCP 59 B requires at the end of the case.

Background

The State charged defendant Derek Mitchell Shine with multiple crimes. After jury selection but before opening statements, the trial court provided written instructions and read them aloud, explaining these were “precautionary” and that further instructions would follow after evidence concluded. These preliminary instructions addressed the jury’s role and conduct, the presumption of innocence, the State’s burden of proof beyond a reasonable doubt, and other matters including evaluating witness testimony and definitions of key terms.

Approximately one week later, after the close of evidence, the trial court and parties discussed final jury instructions outside the jury’s presence. The court indicated it would not reread pages one through five of the written instructions because they had already been read at the trial’s outset. Defendant objected, specifically requesting that the court read pages four and five, which covered the presumption of innocence, the burden of proof beyond a reasonable doubt, a defendant’s right not to testify, factors for evaluating witness testimony, reasonable inferences, and definitions of “knowingly” and “with knowledge.” The trial court refused, though it included these instructions in the written materials provided to the jury and directed jurors to those pages for reference.

The jury found defendant guilty on all counts. The Court of Appeals reversed, holding that ORCP 59 B required the omitted instructions to be read aloud and that the error was not harmless. The Oregon Supreme Court allowed the State’s petition for review.

Analysis

The Court applied its standard method for interpreting Oregon Rules of Civil Procedure, i.e., examining text, context, and pertinent rule history to determine the intent of the Council on Court Procedures. A.G. v. Guitron, 268 P.3d 589 (Or. 2011). When the legislature accepts a rule without amendment, the Council’s intent governs interpretation. State v. Vanornum, 317 P.3d 889 (Or. 2013).

The Court observed that ORCP 58 B prescribes when jury instructions occur. Subsection B(2) directs the court to instruct the jury after it is sworn regarding “its duties, its conduct, the order of proceedings” and “the legal principles that will govern the proceedings.” Subsection B(8) provides that after evidence concludes, “the court shall instruct the jury,” though it is silent regarding content. ORCP 59 B addresses what the instructions must contain, requiring the court to “state to the jury all matters of law necessary for its information in giving its verdict.”

The State argued that ORCP 59 B addresses only content while ORCP 58 B grants broad discretion over timing. Defendant countered that the word “charge” in ORCP 59 B carries temporal significance, referring specifically to final instructions delivered before deliberations begin.

The Court found dictionary definitions instructive. Webster’s Third New International Dictionary defines “charge” as “the statement made by the judge to the jury at the close of a trial of the principles of law that the latter are bound to apply.” Black’s Law Dictionary (4th ed. 1968) similarly defines it as “[t]he final address by judge to jury before verdict.” While the State pointed to more recent, open-ended definitions, the Court explained that context provided greater clarity than dictionaries alone. See State v. Cloutier, 261 P.3d 1234 (Or. 2011) (“Dictionaries, after all, do not tell us what words mean, only what words can mean, depending on their context and the particular manner in which they are used.”).

The structure of ORCP 59 reinforced defendant’s interpretation, according to the Court. Most provisions address events occurring near or at trial’s end: deliberation, additional instructions after deliberations begin, discharge of the jury, and verdict delivery. Importantly, ORCP 59 C(5) provides that “[a]fter hearing the charge and submission of the cause to them, the jury shall retire for deliberation,” contemplating the “charge” as a distinct event occurring immediately before deliberations, according to the Court.

It traced the evolution of both rules. Before the 2000 amendments, ORCP 58 B contained only one instruction provision, directing the court to “charge the jury” at trial’s end, language tracking ORCP 59 B. Historical statutes likewise provided for instructions only at trial’s conclusion.

The Court stated that the 2000 amendments to ORCP 58 were intended to require preliminary instructions on “basic duties and procedures” as part of jury reform proposals, but “not intended to ‘change what many trial court judges have done, and are doing as a matter of discretion.’” These amendments borrowed from Arizona Rule of Civil Procedure 39(b). Significantly, the Arizona Supreme Court had long held that trial courts “must instruct juries on basic legal principles, including burden of proof and reasonable doubt, following the evidence and before the commencement of deliberations,” even when preliminary instructions covered those topics. State v. Johnson, 842 P.2d 1287 (Ariz. 1992). The Court determined that it was unlikely that the Council intended to borrow from Arizona law while simultaneously granting discretion that Arizona practice rejected.

The Court rejected the State’s contention that ORCP 58 confers “broad discretion” over instruction timing. Both subsections B(2) and B(8) use mandatory language (“shall”), not discretionary terms. While ORCP 58 A permits departure from prescribed order “for good cause stated in the record,” that provision applies only to subsections B(3) through B(6) by its text, and the trial court made no such finding here, the Court explained.

Thus, the Court held that preliminary instructions “must be in addition to, and not a substitute for, the complete oral statement that ORCP 59 B requires at the end.” Trial courts may provide overlapping instructions at both trial stages, but the final oral charge must be complete, the Court instructed.

Applying the standard from State v. Ramoz, 483 P.3d 615 (Or. 2021), the Court ruled that the error was not harmless. The omitted instructions protected constitutional rights, including the right not to testify and the presumption of innocence. Defendant did not testify, and his entire defense argued the State failed to prove its case beyond a reasonable doubt, making these instructions “particularly salient.”

The Court discussed research on “recency bias,” observing that people “tend to remember best, and be influenced most, by the latest event in a sequence.” State v. Chitwood, 518 P.3d 903 (Or. 2022). Additionally, party arguments cannot substitute for judicial instructions. As the Ninth Circuit has observed, the oral charge performs a “signaling function” that “cannot be replaced by a printout or a pamphlet,” helping ensure jurors recognize “the enormity of their task.” United States v. Becerra, 939 F.3d 995 (9th Cir. 2019).

Conclusion

The Court affirmed the Court of Appeals, reversed the trial court’s judgment, and remanded for further proceedings. See: State v. Shine, 375 Ore. 112 (2026) (en banc).  

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