State v. Shine - Jury Instructions Affirmed, Circuit Court Reversed

Jump To

Top Caption Disposition Combined Opinion

Support FLP

CourtListener is a project of Free
Law Project, a federally-recognized 501(c)(3) non-profit. Members help support our work and get special access to features.

Please become a member today.

Join Free.law Now

April 9, 2026 Get Citation Alerts Download PDF Add Note

State v. Shine

Oregon Supreme Court

• Citations: 375 Or. 112
• Docket Number: S071383
• Judges: Garrett

• Disposition: The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.

• Opinion

• Authorities (16)

• Cited By (0)

• Summaries (0)

• Similar Cases (45.3K)

• PDF

Disposition

The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.

Combined Opinion

112 April 9, 2026 No. 16

IN THE SUPREME COURT OF THE
STATE OF OREGON

STATE OF OREGON,
Petitioner on Review,
v.
DEREK MITCHELL SHINE,
Respondent on Review.
(CC 19CR42716) (CA A178033) (SC S071383)

En Banc
On review from the Court of Appeals.*
Argued and submitted May 13, 2025.
Lauren P. Robertson, Assistant Attorney General, Salem,
argued the cause and filed the briefs for petitioner on review.
Also on the briefs were Dan Rayfield, Attorney General, and
Benjamin Gutman, Solicitor General.
Zachary Lovett Mazer, Deputy Public Defender, Oregon
Public Defense Commission, Salem, argued the cause and
filed the brief for respondent on review. Also on the brief
was Ernest G. Lannet, Chief Defender, Criminal Appellate
Section.
GARRETT, J.
The decision of the Court of Appeals is affirmed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.

---

• Appeal from Washington County Circuit Court, Andrew R. Erwin, Judge, 334 Or App 360, 557 P3d 181 (2024). Cite as 375 Or 112 (2026) 113 114 State v. Shine

GARRETT, J.
In this case, we consider whether the trial court
erred in its instructions to the jury at the conclusion of
defendant’s criminal trial. At the close of evidence, the
court provided the jury with a set of final written instruc-
tions. The court read some of those instructions aloud, but
it declined to reread certain instructions that it had read
at the beginning of the trial. Defendant objected that the
court’s final oral instructions were incomplete under Oregon
Rule of Civil Procedure (ORCP) 59 B—a rule that applies
to criminal trials—which provides that, “[i]n charging the
jury, the court shall state to the jury all matters of law nec-
essary for its information in giving its verdict[.]”
The Court of Appeals agreed with defendant and
reversed, holding that ORCP 59 B required the trial court to
read the instructions that it had omitted and that the error
was not harmless. We allowed review to consider the state’s
argument that the Court of Appeals misconstrued the appli-
cable rules. We now affirm.
BACKGROUND
The state charged defendant with multiple crimes.
After the jury was selected, but before opening state-
ments, the trial court provided the jury with a set of writ-
ten instructions and invited the jurors to read along while
the court read them aloud. The trial court explained to the
jury that those initial instructions were “precautionary”
and said that it would give the jury further instructions
after the close of evidence. The trial court proceeded to give
instructions based on Uniform Criminal Jury Instruction
(UCrJI) 1004 (precautionary instructions). These covered
the role and conduct of the jury, basic legal principles such
as the presumption of innocence and the state’s burden of
proof beyond a reasonable doubt, and some procedural mat-
ters (e.g., turning off cell phones and taking notes). Next, the
court read instructions corresponding to UCrJI 1005 (func-
tions of the court and the jury); UCrJI 1009 (innocence of
defendant - proof beyond a reasonable doubt); UCrJI 1024
(defendant’s statements); UCrJI 1021 (defendant not testi-
fying); UCrJI 1006 (evaluating witness testimony); UCrJI
Cite as 375 Or 112 (2026) 115

1008 (inferences); UCrJI 1025 (direct and circumstantial
evidence); and UCrJI 1036 (definitions of knowingly and
with knowledge).
After the close of evidence and outside the presence
of the jury, the parties and the trial court discussed the final
jury instructions, which were set out in writing. The trial
court indicated that it did not intend to read aloud pages one
through five of those instructions, because it had already
read them to the jury at the beginning of trial, approxi-
mately one week earlier. Defendant objected and specifi-
cally requested that the trial court read pages four and five,
which addressed topics including the presumption of inno-
cence, the state’s burden of proof beyond a reasonable doubt,
a defendant’s right to not testify, factors to consider in eval-
uating witness testimony, reasonable inferences, direct and
circumstantial evidence, and the definitions of “knowingly”
and “with knowledge.”1 The trial court reiterated that those
instructions had previously been read to the jury and would
not be repeated, although they would be included among the
jury’s written instructions.
Following that colloquy with counsel, the trial court
orally instructed the jury and provided them with the writ-
ten instructions. The court called the jurors’ attention to the
content on pages one through five, reminded the jury that
the court had read those instructions the week before, and
said that they were there for the jurors’ reference:
“THE COURT: So you all have that second set of
instructions that I promised you. The first pages 1 through
5, when we began this trial last week, I read those instruc-
tions to you. I have simply included those so you have a
complete set of instructions that I’ve given in this case.

“I’m not going to go back and read those, but they are
there for you to re-read and for the attorneys to argue as to
how those apply to their case at this point.”

1
Pages four and five of the final instructions correspond to UCrJI 1009
(presumption of innocence and proof beyond a reasonable doubt); UCrJI 1024
(defendant’s statements); UCrJI 1021 (defendant not testifying); UCrJI 1006
(evaluating witness testimony); UCrJI 1008 (inferences); UCrJI 1025 (direct and
circumstantial evidence); and UCrJI 1036 (knowingly and with knowledge).
116 State v. Shine

The trial court proceeded to read other instructions,
including instructions regarding the elements of the offenses.
After closing arguments, the trial court read instructions
analogous to UCrJI 1015 (addressing the manner of deliber-
ation and other proceedings inside the jury room).
The jury found defendant guilty on all counts.
On appeal, defendant raised several assignments of error,
including (as pertinent to our review) the trial court’s fail-
ure, after the close of evidence, to read aloud the instructions
covering the presumption of innocence, the state’s burden of
proof beyond a reasonable doubt, and a defendant’s right not
to testify. Defendant argued that those omissions were con-
trary to ORCP 59 B, which provides that, “[i]n charging the
jury, the court shall state to the jury all matters of law nec-
essary for its information in giving its verdict[.]” The state
argued that the trial court had acted permissibly, contend-
ing that a different rule, ORCP 58 B, provides courts with
discretion over the timing of jury instructions. The state
further argued that ORCP 58 A allows the trial court to
depart from the usual order of proceedings for “good cause.”
Finally, the state argued that, because all the necessary
instructions had been given to the jury in writing as well as
orally (either at the beginning or the end of the trial), any
error as to timing was harmless.
The Court of Appeals concluded that the trial court
had erred. State v. Shine, 334 Or App 360, 362, 557 P3d 181
(2024). That court held that ORCP 59 B requires a trial court
to orally recite all “matters of law necessary for [the jury’s]
information in giving its verdict” at the close of the case and
that, contrary to the state’s argument, ORCP 58 does not
grant trial courts discretion to do otherwise. Id. at 370. The
Court of Appeals reasoned that, because ORCP 59 B is man-
datory by its own terms, whatever authority the trial court
possesses under ORCP 58 A to alter the order of proceedings
for good cause does not extend so far as to allow the court to
omit the instructions that ORCP 59 B requires at the close
of evidence. Id. at 367-70. Concluding that the error was not
harmless, the Court of Appeals reversed and remanded for
a new trial. Id. at 373-74. We allowed the state’s petition for
review.
Cite as 375 Or 112 (2026) 117

ANALYSIS
ORCP 58 B2 and ORCP 59 B are rules of civil pro-
cedure that the legislature has made applicable to crimi-
nal cases. ORS 136.330. In interpreting the ORCPs, we
examine the text, context, and any pertinent rule history to
determine the intent of the drafter, which is ordinarily the
Council on Court Procedures (council). A.G. v. Guitron, 351
Or 465, 471, 268 P3d 589 (2011) (“we apply the usual method
of statutory interpretation” to ORCPs (internal quotation
marks omitted)); State v. Vanornum, 354 Or 614, 619-20, 317
P3d 889 (2013) (when a rule of civil procedure is promul-
gated by the Council on Court Procedures and accepted by
the legislature without amendment, the intent of the council
governs the interpretation of the rule).
ORCP 58 B sets forth the basic sequence of events
in which a jury trial “shall” occur, “unless the court, for
good cause stated in the record, otherwise directs.” The rule
addresses jury selection, initial jury instructions, opening
statements, presentation of evidence, closing arguments,
and final jury instructions. As to jury instructions, the rule
provides:
“B(2) After the jury is sworn, the court shall instruct
the jury concerning its duties, its conduct, the order of pro-
ceedings, the procedure for submitting written questions
to witnesses if permitted, and the legal principles that will
govern the proceedings.

“* * * * *
“B(8) After the evidence is concluded, the court shall
instruct the jury. The court may instruct the jury before or
after the closing arguments.”
Also at issue in this case is ORCP 59, titled
“Instructions to Jury and Deliberation.” That rule con-
tains provisions addressing, among other things, proposed
instructions at the commencement of trial (ORCP 59 A),
the manner of deliberation (ORCP 59 C), the return of a
verdict (ORCP 59 G), and the necessity of excepting to an
2
ORCP 58 was amended in 2022, after defendant’s trial, but those changes
are not pertinent to our review.
118 State v. Shine

instruction as a condition for appellate review (ORCP 59 H).
As pertinent here, ORCP 59 B provides as follows:
“Charging the jury. In charging the jury, the court
shall state to the jury all matters of law necessary for its
information in giving its verdict. Whenever the knowledge
of the court is by statute made evidence of a fact, the court
shall declare such knowledge to the jury, which is bound to
accept it as conclusive. The court shall reduce, or require a
party to reduce, the instructions to writing. The jury shall
take the court’s written instructions with it while deliberat-
ing upon the verdict. The clerk shall file a copy of the written
instructions given to the jury in the court file of the case.”
From the text of ORCP 58 B and ORCP 59 B, we make sev-
eral initial observations. To begin with, ORCP 58 B calls for
the trial court to instruct the jury at two different times.
First, after the jury is sworn, the court shall instruct it
regarding specified matters that include “its duties, its con-
duct, the order of proceedings, the procedure for submitting
written questions to witnesses if permitted, and the legal
principles that will govern the proceedings.” ORCP 58 B(2).
Second, after the close of evidence and either before or after
closing arguments, “the court shall instruct the jury.” ORCP
58 B(8). Unlike subsection B(2), subsection B(8) is silent as
to the content of the required instructions.
ORCP 59 B does speak to the content of jury instruc-
tions, albeit in general terms. It requires the court to “state
to the jury all matters of law necessary for its information in
giving its verdict.” Several aspects of that requirement are,
appropriately, not in dispute. First, the rule is mandatory.
See Friends of the Columbia Gorge v. Columbia River, 346
Or 415, 426, 212 P3d 1243 (2009) (in ordinary usage, “shall”
connotes a mandatory duty). Second, in this case, there is
no dispute as to the content of the instructions that the trial
court declined to reread at the close of evidence. That is,
there is no question that those instructions are appropri-
ately considered “matters of law necessary for [the jury’s]
information in giving its verdict.” Third, the rule requires
the trial court to “state” the required instructions orally.
The parties’ dispute solely concerns the point in the
trial at which the court must give the instructions required
Cite as 375 Or 112 (2026) 119

by ORCP 59 B. The state takes the view that ORCP 59 B’s
directive to “charge” the jury with “matters of law necessary
for its information in giving its verdict” is a requirement of
content, not of timing. Questions of timing, the state con-
tends, are addressed by ORCP 58 B, which specifies when the
court should instruct the jury but also grants what the state
describes as “broad discretion” to structure the sequence of
trial as the court sees fit. Thus, the state argues, because
all the required instructions were read to the jury at some
point (either at the beginning of the trial or at the end), it
does not matter when that occurred.
Defendant contends, and the Court of Appeals
agreed, that ORCP 59 B imposes a timing requirement
through the phrase “in charging the jury.” Defendant
argues that the “charge” to the jury occurs at the end of
trial before the jury is sent to deliberate; on that view, ORCP
59 B requires that the trial court properly “charge” the jury
by orally stating, at the conclusion of the trial, “all matters
of law necessary for its information in giving its verdict.”
Nothing in ORCP 58 B, defendant reasons, is inconsistent
with that requirement.
In support of his interpretation, defendant relies on
relevant dictionary definitions of “charge.” Webster’s defines
charge as,
“a formal address containing instructions or exhortation:
[such] as * * * an instruction given by the court to the jury
in order to govern their action in coming to or making their
decision; specif : 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 to the facts as determined by
them in deciding upon their verdict.”
Webster’s Third New Int’l Dictionary 377 (unabridged ed
2002) (emphasis added).3 Black’s Law Dictionary defines
“[c]harge” for purposes of “[c]ommon-law [p]ractice” as “[t]he
3
Webster’s Third was originally published in 1961, and its definition of
“charge” has remained unchanged since then. Webster’s at 70a; see State v. Eastep,
361 Or 746, 751 n 2, 399 P3d 979 (2017) (explaining that “[a]ny new definitional
material since 1961 appears in an addendum section at the beginning of each
republication” and that as a result “any version of Webster’s Third—regardless of
its copyright date—provides a relevant source of ordinary meaning for statutes
enacted any time after 1961, if not earlier”).
120 State v. Shine

final address by judge to jury before verdict, in which [the
judge] sums up the case, and instructs jury as to the rules of
law which apply to its various issues, and which they must
observe.” Black’s Law Dictionary 295 (4th ed 1968) (second
emphasis added).
The state points to other dictionary definitions of
the term that are more open-ended as to timing. Black’s
Law Dictionary elsewhere defines the verb “charge” to
include “to instruct the jury on matters of law[ ]”). Black’s at
294. The state further observes that, as of 1999, Black’s Law
Dictionary no longer indicates that a “charge” is limited to
the final address to the jury. See Black’s Law Dictionary
227 (7th ed 1999) (defining “charge” to mean, among other
things, “[a]n instruction or command * * *[;] jury charge
* * * [a]n assigned duty or task; a responsibility”); see also
Black’s Law Dictionary 248 (8th ed 2004) (defining “charge”
in part as “2. To instruct or command * * * 3. To instruct a
jury on matters of law defense>”).
The dictionary definitions indicate that the “charge”
to the jury historically has been understood as defendant
proposes, but also that the state’s more open-ended interpre-
tation is not implausible. Thus, as is often the case, dictio-
nary definitions alone do not answer the question. See State
v. Cloutier, 351 Or 68, 96, 261 P3d 1234 (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.”)
A view of ORCP 58 and 59 in their totality, how-
ever, provides more support for defendant’s position that the
Council on Court Procedures understood “charge” to have
a specific temporal meaning. Several features of ORCP 59
show that that rule is mostly directed at events occurring
near or at the end of trial. Sections C, D, F, and G of the
rule address, respectively, jury deliberation, additional
instructions after deliberations begin, discharge of the jury,
and delivery of the verdict. All of those events occur after
the close of evidence. That does not preclude the possibil-
ity that section B, in referring to the “charge” to the jury,
could refer to instructions that occur much earlier in the
Cite as 375 Or 112 (2026) 121

trial, but it does tend to make that interpretation less likely.
Understanding “charge” to mean the final instructions to
the jury, close in time to when deliberations begin, is more
consistent with the other provisions of ORCP 59.
Certain provisions reinforce that understanding
more specifically. For example, ORCP 59 C(5) provides that,
“[a]fter hearing the charge and submission of the cause to
them, the jury shall retire for deliberation.” (Emphasis
added.) That sentence contemplates that the “charge” is a
distinct event that occurs shortly before deliberations begin,
as opposed to the totality of instructions that jurors receive
throughout the trial.
In addition, ORCP 59 A addresses instructions
proposed by the parties. The first sentence of that section
states, “[u]nless otherwise requested by the trial judge on
timely notice to counsel, proposed instructions shall be sub-
mitted at the commencement of the trial.” That is one of
the few portions of ORCP 59 addressing matters that occur
early in the trial process. However, the next sentence pro-
vides that “[p]roposed instructions upon questions of law
developed by the evidence, which could not be reasonably
anticipated, may be submitted at any time before the court
has instructed the jury.” The logic of that sentence assumes
that the court “instruct[s] the jury” after the evidence has
been presented.
Construing the word “charge” in ORCP 59 B to
mean the final oral instructions to the jury, after the close
of evidence, is also consistent with the historical practice of
which the council was aware when the rule was adopted in
1979, and with the council discussion and amendments to
the rule following that initial adoption. See Or Laws 1979,
ch 284 §§ 3, 38 (rules promulgated by council in 1978 and
adopted during 1979 legislative session). As noted above,
relevant dictionary definitions provide some support for the
view that, traditionally, the “charge” to the jury occurred at
the end of the trial. The state also acknowledges that, his-
torically, the statutes that governed Oregon civil and crim-
inal procedure provided for instructions to the jury only at
the end of the trial. See, e.g., former ORS 17.210(5), (6) (1977)
(providing for court to “charge the jury” after evidence and
122 State v. Shine

closing arguments); former ORS 136.330(1) (providing that
ORS 17.210 applies to criminal trials).
The relevant legislative history for an ORCP
includes activity by the council leading to its promulga-
tion and any amendments to the rule by the legislature.
See ORS 1.735(1) (rules promulgated by the council become
effective on January 1 of the following year unless amended,
repealed, or supplemented by the legislature); Guitron, 351
Or at 478-79 (considering whether legislature made amend-
ments to the rule at issue). If an ORCP becomes effective
without legislative amendment, the relevant history is that
of the rule’s promulgation by the council. Vanornum, 354 Or
at 623; see also Waddill v. Anchor Hocking, Inc., 330 Or 376,
382 n 2, 8 P3d 200 (2000), adh’d to on recons, 331 Or 595, 18
P3d 1096 (2001) (“unless the legislature amended the rule at
issue in a particular case in a manner that affects the issues
in that case, the Council’s intent governs the interpretation
of the rule”).
In its original form, ORCP 59 B provided that writ-
ten instructions could be given, in addition to the oral charge,
if the parties requested them or at the court’s option. Council
on Court Procedures, Staff Comment to Rule 59, reprinted
in Frederic R. Merrill, Oregon Rules of Civil Procedure: A
Handbook 124, 127 (1981) (stating that ORCP 59 B, as pro-
mulgated, provided that written instructions will be given
to the jury “entirely at the discretion of the court”); Or Laws
1979, ch 284, § 38 (HB 3131) (added the text permitting the
parties to require written instructions be provided); see also
ORCP 59 B (1980) (“In charging the jury, the court shall
state to them all matters of law necessary for their informa-
tion in giving their verdict. * * * If either party requires it
and at commencement of the trial gave notice of that party’s
intention so to do, or if in the opinion of the court it is desir-
able, the charge shall be reduced to writing, and then read
to the jury by the court. The jury shall take such written
instructions with it while deliberating * * *.”).
In 1982, the council promulgated a rule, subse-
quently adopted by the legislature without amendment, that
authorized trial courts to provide the jury with an electronic
recording of the oral “charging of the jury” as an alternative
Cite as 375 Or 112 (2026) 123

to written instructions. Council on Court Procedures, Staff
Comment to Rule 59, 1982, reprinted in Frederic R. Merrill,
Oregon Rules of Civil Procedure: 1984 Handbook 137 (1984)
(“The amendment would allow the submission of jury
instructions by electronic recording as well as in written
form.”); Or Laws 1983, ch 751 (changing effective date of
promulgated rules and amending other rules not relevant
here).
In 2002, ORCP 59 B was amended again to require,
not just permit, trial courts to provide the jury with writ-
ten jury instructions or an electronic recording of the oral
“charge.” See Council on Court Procedures, 1 Legislative
History Materials 2001-2003 Biennium Promulgated
Amendments to ORCP, January 15, 2003, Promulgated 2002
Rules with Commentary 4, 13; ORCP 59 B (2004) (juries to
be provided with written instructions unless it is not feasi-
ble, in which case court to provide an electronic recording
of the jury charge); Minutes, Council on Court Procedures,
May 11, 2002, 4 (discussing advisability of removing dis-
cretion to allow electronic recording given the lack of staff
resources in in some courts but overall expressing desir-
ability of written instructions being provided to permit a
“dual learning process” with instruction being provided
both orally and in writing); Minutes, Council on Court
Procedures, Sept 14, 2002, 5 (Judge Johnson stating that
written instructions should be provided to the jury “at the
beginning of trial rather than as late as immediately before
the jury is charged”).
Finally, in 2008 the council proposed removing the
provision that gave trial courts discretion to allow an elec-
tronic recording of the oral jury charge in lieu of written
instructions. See Council on Court Procedures, 1 Legislative
History Materials 2007-2009 Biennium, Dec 13, 2008,
Promulgated Amendments 10; see also Minutes, Council on
Court Procedures, March 8, 2008, 4-6 (discussing proposal
to remove provision allowing for electronic recordings of
the jury charge and discussing concerns that trial courts
would oppose amendment); Minutes, Council on Court
Procedures, June 7, 2008, 6 (Judge Miller stating that, “if
jury instructions are in writing, there will be a better level
124 State v. Shine

of comprehension by jurors, and the jurors will have the
ability to quickly refer to different sections rather than to
have to wind through a tape recording”); Minutes, Council
on Court Procedures, Dec 13, 2008, 6-7 (discussing training
for judges and attorneys, vote to promulgate amendment
as drafted). That change was adopted by the legislature
without amendment. See ORCP 59 B (2010) (requiring jury
instructions be reduced to writing in all cases).
In short, the original version of ORCP 59 B, as
well as the various proposals, changes, and accompanying
council discussions through 2008, consistently reflect an
understanding that the jury “charge” happens at the close
of evidence. Moreover, it appears that the charge was con-
sistently understood to require a complete oral statement of
the required instructions, with written instructions being
recognized over time as a useful and increasingly feasible
accompaniment.
For the foregoing reasons, the text, context, and
history of ORCP 59 B all point to the conclusion that the
“charge” to the jury refers to the final instructions that the
judge reads aloud before the jury retires to begin delibera-
tions. In resisting that conclusion, the state relies largely on
ORCP 58, and particularly the amendments to that rule in
2000.
As noted above, ORCP 58 concerns the order in
which the stages of jury trial should occur. ORCP 58 A pro-
vides that trial court must follow the prescribed order of
proceedings “unless the court, for good cause stated in the
record, otherwise directs[.]” ORCP 58 B expressly provides
that the court will instruct the jury at two stages: after
the jury is sworn (ORCP 58 B(2)) and after the evidence is
concluded (ORCP 58 B(8)). The state argues that ORCP 58
B thus permits “split” jury instructions, allowing the trial
court to give some instructions at the beginning of the case
and some at the end, at the court’s discretion. The function
of ORCP 59 B, in the state’s view, is merely to specify that
the court’s instructions to the jury, in their totality and
whenever given, must include “all matters of law necessary
for [the jury’s] information in giving its verdict.” We are not
persuaded.
Cite as 375 Or 112 (2026) 125

As we have already discussed, the text, context,
and history of ORCP 59 B indicate that the council consis-
tently understood “charge” to mean the instructions read to
the jury at the end of the trial. The state’s argument that
“charge” has no temporal meaning is based largely on its
premise that ORCP 58 B affords the trial court “broad dis-
cretion” over the sequence of trial and the timing of jury
instructions in particular. From that premise, the state
reasons that ORCP 59 B, to be consistent with ORCP 58
B, must not be concerned with timing at all, but only with
content.
We disagree. The state is correct that ORCP 58 B
contemplates “split” instructions, some at the beginning of
trial and some at the end. But the rule does not, as the state
contends, give the trial court “broad discretion” over the
timing of the instructions. Subsection B(2) states that, after
the jury is sworn, the trial court “shall instruct the jury con-
cerning its duties, its conduct, the order of proceedings, the
procedure for submitting written questions to witnesses if
permitted, and the legal principles that will govern the pro-
ceedings.” That provision does not give the trial court dis-
cretion to decide that it will not give the jury those required
instructions at the specified time. Subsection B(8) then pro-
vides that, after the “evidence is concluded, the court shall
instruct the jury.” Neither provision vests the trial court
with discretion to do other than what the provision requires.
ORCP 58 A does state that a jury trial “shall proceed” in the
following manner “unless the court, for good cause stated in
the record, otherwise directs.” (Emphasis added.) Although
the state argues that ORCP 58 thereby confers “broad dis-
cretion” on the trial court, a more accurate description of
the rule is that it prescribes an order of proceedings that
the trial court ordinarily must follow, absent a finding of
good cause to do otherwise under certain circumstances.4
The trial court stated no such finding here.
In addition, the fact that ORCP 58 B(2) specifies
what instructions must be given early in the trial, “[a]fter
the jury is sworn,” undermines the state’s position that

4
ORCP 58 A, by its text, only applies to subsections B(3) through B(6) gov-
erning the parties’ arguments and the order of evidence.
126 State v. Shine

ORCP 58 B is concerned strictly with the timing of instruc-
tions and ORCP 59 B strictly with their substance. ORCP 58
B(2) directs the court to instruct the jury, after being sworn,
“concerning its duties, its conduct, the order of proceedings,
the procedure for submitting written questions to witnesses
if permitted, and the legal principles that will govern the
proceedings.” Most of the listed matters are plainly aimed
at assisting jurors in understanding the nature of a trial
and what is expected of them, as opposed to matters of sub-
stantive law. The phrase “the legal principles that will gov-
ern the proceedings” could be understood to reach matters
of substantive law, such as the definitions of terms or the
elements of a crime with which a defendant is charged. The
phrase could also be understood in a more limited way to
refer to matters of trial procedure. We have no need in this
case to resolve the meaning of that phrase, because there
has been no challenge to the instructions that the trial court
gave at the beginning of trial. It suffices for present purposes
to observe that ORCP 58 B(2) directs the trial court to pro-
vide the jury with initial instructions and also prescribes, at
least in general terms, the content of those instructions.
ORCP 58 B(8), by contrast, provides that, after the
close of evidence, the court “shall instruct” the jury and says
nothing at all about the content of the required instructions.
But its silence in that regard is understandable given the
history of the rule, considered together with ORCP 59 B.
Before the 2000 amendments, ORCP 58 B con-
tained only one provision regarding jury instructions, not
two, and that provision directed the court to “charge” the
jury at the end of the trial. See ORCP 58 B(4), (6) (1978)
(providing that, after evidence and closing argument, “[t]
he court then shall charge the jury”). Thus, the wording of
ORCP 58 B tracked the word “charge” in ORCP 59 B. As
such, that version of ORCP 58 B had no need to describe the
content of the “charge,” because that was done in ORCP 59
B, which provided that the charge shall consist of “all mat-
ters of law necessary for [the jury’s] information in giving
their verdict.”
The 2000 amendments to ORCP 58 regarding
jury instructions were intended to require “that jurors be
Cite as 375 Or 112 (2026) 127

instructed at the outset [of trial] on basic duties and pro-
cedures” as part of a package of proposals to reform jury
practices. Council on Court Procedures, 1 Legislative
History Materials 1999-2001 Biennium, Council on Court
Procedures, Minutes, June 10, 2000, 7. But none of those
proposals was intended to “change what many trial court
judges have done, and are doing as a matter of discretion.”
Minutes, Council on Court Procedures, Sept 9, 2000, 7-8. As
we have noted, the rule required only a single set of instruc-
tions, given at the end of trial. As observed by this court as
early as 1968, however, a practice had emerged of giving
jurors some “basic instructions” before trial. See McCaffrey
v. Glendale Acres, 250 Or 140, 143 n 2, 440 P2d 219 (1968)
(noting that, because a “charge to the jury shall come at the
end of the case * * * any instructions given at the beginning
should then be repeated”). The understanding that some
basic instructions were to be given at the beginning of trial
in addition to, rather than as a substitute for, the final jury
charge at the close of the case is reflected in the older uni-
form jury instructions. See, e.g., UCrJI 1002 (1988), renum-
bered as UCrJI 1004 (comment to precautionary instruc-
tion: “This is a preliminary instruction and is not intended
to replace any instructions that would ordinarily be given
after argument.”).
The 2000 amendments were initially proposed by a
special jury reform subcommittee. See Minutes, Council on
Court Procedures, June 10, 2000, 7-8 (adopting subcommit-
tee’s proposed amendments). The work product file of that
subcommittee contains several academic articles regard-
ing jury reform that, among other things, urged courts to
adopt “case-specific” preliminary instructions to help jurors
appreciate the significance of evidence as it is presented.
Committee Work Product, ORCP 55-57, Council on Court
Procedures, 1999-2001 Biennium History Materials, 19,
35.5 The materials in the record emphasized that prelim-
inary instructions should be given in addition to the final
5
Available at https://counciloncourtprocedures.org/Content/1999-2001_
Biennium/rule57-59committee/rule55-57committee_work.pdf (accessed Apr
2, 2026). The article with the most in-depth discussion of preliminary instruc-
tions was a law review article. Id. at 9-34 (citing The Honorable B. Michael Dann,
“Learning Lessons” and “Speaking Rights”: Creating Educated and Democratic
Juries, 68 Ind LJ 1229 (1993)).
128 State v. Shine

instructions at the close of the case, and further described
the benefits of providing the final full instructions before
closing argument to assist the jury in assessing the relative
strength of each party’s argument. Id. at 20, 23.6
The jury reform subcommittee’s proposals were bor-
rowed from Arizona Rule of Civil Procedure 39(b) (1999), id.
at 39, which provided that trial by jury shall follow the order
prescribed for trial “unless the court for good cause stated
in the record” directs otherwise. This mirrors the text pro-
posed and later adopted in ORCP 58 A. Subsection (1) of that
Arizona rule, governing the content of preliminary instruc-
tions, was copied verbatim into the subcommittee’s proposed
rules and adopted by the council with minimal changes as
ORCP 58 B(2). Compare Committee Work Product, ORCP
55-57, at 39 (“Immediately after the jury is sworn, the court
shall instruct the jury concerning its duties, its conduct, the
order of proceedings, the procedure for submitting written
questions of witnesses or of the court as set forth in Rule
39(b)(10), and the elementary legal principles that will
govern the proceeding”),7 with Agenda, Council on Court
Procedures, Proposed Amendments, June 10, 2000, 55-56
(same).8 Judge Harris, who was on the subcommittee, con-
firmed that the text of ORCP 58 B(2) came from an Arizona
rule. Minutes, Council on Court Procedures, June 10, 2000,
7-8 (adopting subcommittee’s proposed amendments).
By the time the council was considering the Arizona
rule, the Arizona Supreme Court had long held that trial
courts must reinstruct at the close of the case on core legal
principles even if those topics were covered in the prelim-
inary instructions. State v. Johnson, 173 Ariz 274, 276,
842 P2d 1287 (1992) (Trial courts “must instruct juries on
basic legal principles, including burden of proof and rea-
sonable doubt, following the evidence and before the com-
mencement of deliberations. This is so even though a jury
6
The committee’s work product also discussed the flawed model of assuming
perfect “recall readiness” with regarding to final instructions. Id. at 15-16.
7
Available at https://counciloncourtprocedures.org/Content/1999-2001_
Biennium/rule57-59committee/rule55-57committeework.pdf (accessed Apr
2, 2026)
8
Available at https://counciloncourtprocedures.org/Content/1999-2001
Biennium/agendas/2000-06-10_agenda.pdf (accessed Apr 2, 2026)
Cite as 375 Or 112 (2026) 129

has been instructed prior to the presentation of evidence,
and regardless of the brevity of trial.”); State v. Kinkade,
140 Ariz 91, 94, 680 P2d 801 (1984) (error for trial court to
fail to read instruction regarding proof beyond a reasonable
doubt at the end of trial, even though included in prelimi-
nary instructions).
Although nothing in the subcommittee’s work file
refers specifically to those cases, we think it is more likely
than not that the committee was aware of Arizona prac-
tice, considering the extent to which the subcommittee was
expressly drawing from Arizona law. Put another way, it
seems unlikely that the council simultaneously intended to
borrow from Arizona law and to give trial courts discretion
to stop providing juries with complete instructions at the
conclusion of the trial, given that Arizona practice rejected
that very approach.
For the foregoing reasons, we conclude, as did the
Court of Appeals, that ORCP 59 B requires the trial court
to “charge” the jury at the conclusion of trial by provid-
ing an oral statement of “all matters of law necessary for
its information in giving its verdict.” Further, nothing in
ORCP 58 B is inconsistent with that requirement. Rather,
we understand the council’s changes to ORCP 58 to have
been intended to codify a recognized practice of providing
jurors with some instructions early in the trial to guide
their understanding of the proceedings, without disturbing
the traditional understanding that the trial court “charges”
the jury at the conclusion of the case by reading the instruc-
tions necessary for the jury’s information in giving its ver-
dict. In this case, it is undisputed that the instructions that
the trial court declined to reread at the end of the trial meet
that description. Accordingly, it was error not to read those
instructions aloud.
To be clear, we do not hold that the trial court erred
in providing instructions at the beginning of the trial. On
the contrary, what the state describes as “split” instructions
are required by ORCP 58 B. Nor do the rules prohibit a trial
court from engaging in some amount of duplication, read-
ing certain instructions both at the beginning and at the
end of a trial. There may be overlap, for example, between
130 State v. Shine

instructions regarding the “legal principles that will gov-
ern the proceedings,” ORCP 58 B(2), and instructions on
“all matters of law necessary for [the jury’s] information in
giving its verdict,” ORCP 59 B. We hold only that whatever
instructions the court chooses to provide at the beginning
of the trial must be in addition to, and not a substitute for,
the complete oral statement that ORCP 59 B requires at the
end.9
Having concluded that the trial court erred, we
turn to whether that error was harmless. State v. Ramoz,
367 Or 670, 704, 483 P3d 615 (2021). An instructional error
is not harmless “if it probably created an erroneous impres-
sion of the law in the minds of the jury” and “if that errone-
ous impression may have affected the outcome of the case.”
Id. at 704-05 (internal quotations omitted). In making that
determination, we consider the instructions as a whole in
the context of the evidence and the record at trial including
the parties’ theories of the case. Id.
The instructions that the trial court declined to
reread at the close of the case were important instructions
that protect defendants’ constitutional rights. See Or Const,
Art I, § 12 (right not to be compelled to testify against self);
ORS 10.095(6) (providing that in criminal cases, jurors are to
be instructed that “a person is innocent of a crime or wrong
until the prosecution proves otherwise, and guilt shall be
established beyond a reasonable doubt”); State v. Sperou,
365 Or 121, 133, 442 P3d 581 (2019) (acts that undermine
the presumption of innocence may deprive defendants of a
fair trial). Moreover, defendant did not testify in his own
defense, and his defense consisted entirely of arguing that
the state had failed to prove its case beyond a reasonable
doubt, which makes the instructions concerning those mat-
ters particularly salient.
We also have noted the importance of research
on so-called “recency bias,” meaning that people “tend to
9
We acknowledge that it is not uncommon for the parties to stipulate to the
timing of instructions and for trial courts to act consistently with those stipula-
tions, particularly in civil cases. This case does not call upon us to consider whether
the parties may stipulate to something other than what ORCP 59 B requires, nor
the effect that such a stipulation may have on a claim of error on appeal.
Cite as 375 Or 112 (2026) 131

remember best, and be influenced most, by the latest event
in a sequence[.]” State v. Chitwood, 370 Or 305, 318, 518
P3d 903 (2022). In other words, timing matters. We will not
readily assume that an instruction read orally to the jury
at the beginning of a trial will necessarily have the same
effect as when the instruction is read immediately before
deliberation.
Nor is it enough that the principles addressed by
the omitted instructions were discussed by the parties
themselves, in their closing arguments. A party’s argument
is not a substitute for instructions from the court.
“The oral charge also performs a second, signaling function
that cannot be replaced by a printout or a pamphlet. Jury
instructions are not the judicial equivalent of a car man-
ual or a cookbook. When an enrobed judge orally charges
the jury, the jurors are impressed with the fact that they
have been entrusted with the power to decide the defen-
dant’s fate. This oral, public ritual helps ensure that jurors
recognize the enormity of their task and take that task
seriously.”
United States v. Becerra, 939 F3d 995, 1001 (9th Cir 2019)
(internal quotation marks and ellipses omitted); see also
Ossanna v. Nike, Inc., 365 Or 196, 221, 445 P3d 281 (2019)
(stating that “arguments put forth by an interested party
are not adequate surrogates for controlling jury instructions
given by the court”). For all of these reasons, we cannot con-
clude that the error in this case was harmless.
The decision of the Court of Appeals is affirmed.
The judgment of the circuit court is reversed, and the case
is remanded to the circuit court for further proceedings.