PEOPLE v TRAVER

Docket No. 154494. Argued on application for leave to appeal December 6, 2017. 

Decided June 15, 2018. 

 Gary M. Traver was convicted following a jury trial in the Mackinac Circuit Court of 

assault with a dangerous weapon (felonious assault), MCL 750.82, and possession of a firearm 

during the commission of a felony (felony-firearm), MCL 750.227b, but was acquitted of 

interfering with electronic communications, MCL 750.540(a), and carrying a concealed weapon 

(CCW), MCL 750.227. Defendant had an ongoing dispute with his neighbor over the use of 

their shared driveway, culminating in an altercation between the two men that resulted in 

defendant being charged with the four offenses. After the jury was sworn in, the court, William 

W. Carmody, J., gave preliminary oral instructions to the jury, which included the elements of 

CCW but not the elements of the remaining charges. In addition to the oral instructions, the trial 

court gave the jury written instructions on the elements of CCW, felonious assault, and 

interfering with electronic communications, but the written instructions were incomplete with 

regard to the offense of felony-firearm in that only the definition of possession was included for 

that offense. Defense counsel approved the instructions on the record. After closing arguments, 

the trial court orally instructed the jury regarding routine points of law, but the court did not 

orally instruct regarding the elements of the offenses, stating that the jury had already received 

written instructions regarding those offenses and the elements for each offense. After objecting 

to the felony-firearm instruction and requesting and receiving a clarifying instruction regarding 

that offense, defense counsel indicated that he was satisfied with the instructions. Defendant 

appealed. In a split decision, the Court of Appeals, GLEICHER, P.J., and M. J. KELLY, J. 

(SAWYER, J., dissenting), reversed defendant’s convictions, reasoning that the trial court’s failure 

to orally instruct the jury regarding the elements of the charged offenses constituted plain error 

that affected defendant’s substantial right to have a properly instructed jury consider the 

evidence. 316 Mich App 588 (2016). Judge SAWYER dissented, stating that defendant had 

waived any claim of instructional error by expressing satisfaction with the instructions. The 

prosecution sought leave to appeal in the Supreme Court, and the Supreme Court ordered and 

heard oral argument on whether to grant the prosecution’s application for leave to appeal or take 

other action. 501 Mich 938 (2017). 

 In an opinion by Chief Justice MARKMAN, joined by Justices MCCORMACK, BERNSTEIN, 

WILDER, and CLEMENT, the Supreme Court held: 

Michigan Supreme Court 

Lansing, Michigan

Syllabus Chief Justice: 

Stephen J. Markman 

Justices: 

Brian K. Zahra 

Bridget M. McCormack 

David F. Viviano 

Richard H. Bernstein 

Kurtis T. Wilder 

Elizabeth T. Clement 

This syllabus constitutes no part of the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader. 

Reporter of Decisions: 

Kathryn L. Loomis 
 MCR 2.512 and MCR 2.513 require that trial courts provide instructions orally to the 

jury. In this case, however, defendant waived his claims of instructional error. 

 1. A court must properly instruct a jury so that the jury may correctly and intelligently 

decide the case. In that regard, the instructions to a jury must include all the elements of the 

charged offenses. A complete failure to instruct a jury regarding any of the elements necessary 

to determine if the prosecution has proven a charge beyond a reasonable doubt constitutes 

structural error that requires automatic reversal. In contrast, imperfect instructions that omit an 

element of an offense, or otherwise misinform the jury of an offense’s elements, do not 

necessarily render a criminal trial unfair such that the conviction must be set aside. An imperfect 

instruction is not grounds for setting aside a conviction if the instruction fairly presented the 

issues to be tried and adequately protected the defendant’s rights. Defense counsel waives any 

error resulting from an imperfect instruction when counsel explicitly and repeatedly approves the 

instruction. 

 2. MCR 2.512(B)(2) provides that before or after arguments or at both times, as the court 

elects, the court shall instruct the jury on the applicable law, the issues presented by the case, 

and, if a party requests as provided in MCR 2.512(A)(2), that party’s theory of the case. MCR 

2.513(A) provides, in part, that after the jury is sworn in, the court must provide the jury with 

pretrial instructions reasonably likely to assist in its consideration of the case, including 

instructions regarding the elements of all charged offenses. Similarly, MCR 2.513(N)(1) 

requires a trial court to instruct the jury as required and appropriate after closing arguments are 

made. Under MCR 2.513(N)(2), upon concluding the final instructions, the court must invite the 

jurors to ask any questions in order to clarify the instructions before the jurors retire to 

deliberate. MCR 2.513(N)(3) requires the trial court to provide a written copy of the final jury 

instructions for the jury to take into the jury room for deliberation; the court may also provide 

additional copies of the instructions if requested by any juror and may provide the jury with a 

copy of electronically recorded instructions. 

 3. Neither MCR 2.512 nor MCR 2.513 expressly states whether instructions must be 

provided orally to the jury. When interpreting court rules, the rules must be read in context and 

as a whole, taking into consideration the grammatical usage of the words in the rule. Reading 

the word “instruct” in MCR 2.512 and MCR 2.513 in context—that is, the requirement that a 

trial court must “instruct” the jury—the court rules affirmatively require oral instructions to the 

jury, even though neither rule expressly states that requirement. In grammatical terms, the MCR 

2.513(N)(2) gerund phrase “[u]pon concluding the final instructions” refers to the subject of the 

sentence—the trial court—and it would not be correct to read the phrase as referring to a jury’s 

reading of written instructions. In addition, the MCR 2.513(N)(2) command that invites jurors to 

ask clarifying questions, coupled with the subrule’s timing element—“[u]pon concluding the 

final instructions”—suggests that the trial court must read the instructions aloud; a jury would 

not be able to ask clarifying questions at the conclusion of the final instructions if there were no 

oral instructions because the jury would not yet be cognizant of what the instructions entailed 

had the jury just been handed written instructions. The MCR 2.513(N)(3) requirement that the 

court provide a written copy of the final jury instructions to the jury and the MCR 2.513(N)(3) 

provision that the trial court may provide electronically recorded instructions also indicate that 

the final jury instructions must be given orally. MCR 2.513(A) similarly suggests that the initial 
act of instructing the jury must be oral because the subrule requires the trial court to instruct the 

jury before trial on all claims and then requires the court to provide each juror with a copy of the 

instructions. The manner in which MCR 7.312(D)(2)(d) refers to “jury instructions” also 

supports the conclusion that the court rules require oral instructions. 

 4. In this case, the trial court erred when it failed to orally instruct the jury regarding the 

elements of several offenses. The issue did not constitute structural error because the jury was 

instructed in some form or another on the elements of all the offenses. Instead, because the 

manner in which the instructions were given constituted nonstructural error, the issue was subject 

to waiver analysis. Here, defendant waived the claim because defense counsel repeatedly 

approved the instructions as given. Defendant similarly waived his claim that the trial court 

failed to instruct the jury regarding felony-firearm, in light of the fact that the trial court further 

instructed the jury after defense counsel objected to the initial felony-firearm instruction and 

defense counsel orally approved that additional instruction. Accordingly, although the Court of 

Appeals correctly concluded that instructions must be given orally to the jury, the Court of 

Appeals erred by concluding that defendant was entitled to a new trial because of the 

instructional error. 

 Affirmed in part, reversed in part, and remanded to the Court of Appeals for 

consideration of defendant’s previously unaddressed ineffective-assistance-of-counsel claims. 

 Justice ZAHRA, concurring in part and dissenting in part, agreed with the majority that 

defendant was not entitled to relief on the basis of his claims of instructional error but disagreed 

with the majority’s conclusion that MCR 2.512 and MCR 2.513 require a trial court to orally 

deliver instructions to the jury. MCR 2.512(B)(2) and MCR 2.513(N)(1) require the trial court to 

“instruct” the jury. Applying the dictionary definition to those subrules, the plain and ordinary 

meaning of the transitive verb “instruct” requires the trial court to provide the jury with 

authoritative information or advice as required and appropriate, including the applicable law, the 

issues presented, and the party’s theory of the case if requested by the party. These subrules do 

not require the trial court to deliver the instructions orally, and the instructions may therefore be 

delivered orally or in written form. The court rules plainly allow trial courts the flexibility to 

accommodate all qualified jurors—especially those with impairments or disabilities for whom 

written instructions may be more appropriate. Justice ZAHRA disagreed with the majority’s 

conclusion that the MCR 2.513(N)(2) language “[u]pon concluding the final instructions, the 

court shall invite the jurors to ask any questions in order to clarify the instructions before they 

retire to deliberate” suggests that the trial court must read those instructions aloud because the 

jury would not be able to ask clarifying instructions without them. The prepositional gerund 

phrase “[u]pon concluding the final instructions” functions adverbially because it addresses 

when the court must invite questions from jurors. While the majority correctly suggests that one 

logical reading of the sentence includes a trial court orally instructing the jury and then inviting 

questions from the jurors, that is not the only logical reading because gerunds and participles are 

often misplaced. The grammatical structure of the sentence could be improved on to better 

clarify the subject of the prepositional gerund phrase, and its weight as a contextual cue requiring 

oral instruction is therefore minimal. The MCR 2.513(N)(3) requirement that the jury must be 

provided a written copy of the final jury instructions and that the trial court may provide 

electronically recorded instructions does not suggest that the instructions were originally 
delivered orally; the subrule does not require that a trial court read the instructions aloud, and 

providing a copy of the instructions merely allows jurors to not remember every single 

instruction. The plain language of MCR 2.513(A) similarly does not suggest that preliminary 

instructions must be delivered orally. The majority’s reliance on MCR 7.312(D)(2)(d) is 

misplaced because if written instructions were provided to the jurors, they would be a relevant 

portion of the record required to be included in the appendix under that subrule. Although oral 

instructions are not currently required, the court rules should be amended to require a trial court 

to provide both oral instructions and written copies of the final instructions. 

 Justice VIVIANO, concurring in part and dissenting in part, agreed with the majority that 

defendant was not entitled to relief on the basis of his claims of instructional error but disagreed 

that a requirement for oral instruction arises contextually within the court rules. While MCR 

2.513(N)(2) suggests a sequence of events culminating in jurors being allowed to ask clarifying 

questions, MCR 2.513(A) and MCR 2.513(N)(3) do not require that the first step in the sequence 

be oral instructions. The court rules should be amended to require trial courts to provide oral 

instruction, in conformity with the practice in the federal circuit courts and some states. The 

purpose of the 2011 amendments of the Michigan Court Rules was to require the trial court to 

supplement the traditional verbal instructions with a written copy to improve juror 

comprehension, but the amendment did not make the intention explicit. Because he concluded 

that the court rules do not presently require oral jury instructions, Justice VIVIANO would not 

have addressed whether the trial court’s failure to provide them was subject to a waiver analysis. 

©2018 State of Michigan 
FILED June 15, 2018 

S T A T E O F M I C H I G A N 

SUPREME COURT 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellant, 

v No. 154494 

GARY MICHAEL TRAVER, 

 Defendant-Appellee. 

BEFORE THE ENTIRE BENCH 

MARKMAN, C.J. 

At issue is whether the trial court erred by providing written instructions to the 

jury concerning elements of the charged offenses but failing to read those instructions 

aloud. Although we conclude that our court rules require oral instructions, defendant 

here waived any claims of instructional error. Therefore, we affirm the judgment of the 

Court of Appeals to the extent that it held that the court rules require oral instructions, but 

we reverse to the extent that it held that this claim and additional claims of instructional 

Michigan Supreme Court 

Lansing, Michigan

OPINION Chief Justice: 

Stephen J. Markman 

Justices: 

Brian K. Zahra 

Bridget M. McCormack 

David F. Viviano 

Richard H. Bernstein 

Kurtis T. Wilder 

Elizabeth T. Clement
2

error required reversal of defendant’s convictions. In addition, we remand to the Court of 

Appeals for consideration of defendant’s previously unaddressed arguments relating to 

ineffective assistance of counsel.1

I. FACTS AND HISTORY 

Defendant shared a driveway with his neighbor, Patrick St. Andre, and the two 

were involved in an ongoing dispute regarding use of the driveway. As a result of 

allegations arising from the dispute, defendant was charged with carrying a concealed 

weapon (CCW), MCL 750.227; assault with a dangerous weapon (felonious assault), 

MCL 750.82; interference with electronic communications, MCL 750.540(5)(a); and 

possessing a firearm during the commission of a felony (felony-firearm), MCL 750.227b. 

After swearing in the jury, the trial court gave preliminary oral instructions to the jury 

and stated the following, in relevant part: 

To prove the charges, the prosecutor must prove beyond a 

reasonable doubt the following information that you have in your hand. I’d 

ask you to take a look now at what has been passed out to you. 

In count one, the defendant is charged with the crime of carrying a 

concealed weapon. To prove this charge, the prosecutor must prove, 

beyond a reasonable doubt, those elements so listed. First, that the 

defendant knowingly carried a weapon, a pistol. It does not matter why the 

defendant was carrying the weapon, but to be guilty of the crime, the 

defendant must have known that it was a weapon. Second, that this pistol 

was concealed, complete invisibility is not required. A weapon is 

concealed if it cannot easily be seen by those who come into ordinary 

contact with the defendant. 

 

1

 In all other respects, we deny leave to appeal because we are not persuaded that the 

remaining issues in the prosecutor’s application for leave to appeal should be reviewed 

by this Court. 
3

Now, as you can see in count two and count three, and count four, 

those are the elements, ladies and gentlemen, that you will need to pay 

attention to during the course of this trial. Those are the four counts that 

Mr. Traver is charged with, and the attorneys will be discussing all of those 

as we proceed through here by questions of the witnesses. Okay? 

The trial court then provided the jury with a two-page typed document that 

contained the definition of the term “possession” for felony-firearm and the elements of 

CCW, felonious assault, and interference with electronic communications; defense 

counsel expressed satisfaction with these instructions. Following closing arguments, the 

trial court again orally instructed the jury, but only as to routine points of law, such as the 

meaning of reasonable doubt and the fact that attorneys’ arguments do not constitute 

evidence. It did not orally instruct regarding the elements of the charges, stating: 

When you go into the jury room, ladies and gentlemen, you will be 

provided with a written copy of these instructions should you so choose. If 

there are instructions that I have given and others that I will give that you 

wish copies of, they will be provided to you. You’ve already received the 

charges and the elements of the same. 

At the conclusion of these instructions, the trial court inquired whether defense counsel 

was satisfied, and counsel sought clarification regarding the felony-firearm instruction; 

the trial court responded with further instructions in that regard. Defense counsel then 

again expressed satisfaction with the instructions. The jury found defendant guilty of 

felonious assault and felony-firearm and not guilty of the remaining charges. 

Following sentencing, defendant appealed as of right, raising numerous issues-- in 

particular, that the trial court erred by failing to orally instruct the jury on the elements of 

the charges. In a split decision, the Court of Appeals reversed defendant’s convictions, 

reasoning that the trial court had failed to orally instruct the jury regarding the elements 
4

of the charged offenses. People v Traver, 316 Mich App 588; 894 NW2d 89 (2016). 

Judge SAWYER dissented, asserting that defendant had waived any claim of instructional 

error by expressing satisfaction with the instructions. Id. at 603. 

The prosecutor then sought leave to appeal in this Court, and on December 6, 

2017, we heard oral argument regarding whether to grant the application. Because there 

was uncertainty regarding the specific written instructions the jury had received, we 

remanded to the trial court “for appropriate proceedings to settle the record as to the 

content of the written jury instructions on the elements of the charged crimes.” People v 

Traver, 501 Mich 938 (2017). On remand, the trial court determined that the two-page 

typed document cited by the Court of Appeals was identical to the content provided to the 

jury by the trial court. We now address the claims of instructional error that the Court of 

Appeals majority held warranted reversal of defendant’s convictions. 

II. STANDARD OF REVIEW 

“We review de novo claims of instructional error” and “must consider the 

instructions as a whole, rather than piecemeal, to determine whether any error occurred.” 

People v Kowalski, 489 Mich 488, 501; 803 NW2d 200 (2011). Similarly, we review de 

novo the proper interpretation and application of court rules. People v Comer, 500 Mich 

278, 289; 901 NW2d 553 (2017). The same broad legal principles governing the 

interpretation of statutes apply to the interpretation of court rules; therefore, when 

interpreting a court rule, this Court begins with the text of the court rule and reads the 

individual words and phrases in their context within the Michigan Court Rules. Id. 
5

III. LEGAL BACKGROUND 

“A court must properly instruct the jury so that [the jury] may correctly and 

intelligently decide the case.” People v Clark, 453 Mich 572, 583; 556 NW2d 820 

(1996) (opinion by MALLETT, J.). “The instruction to the jury must include all elements 

of the crime charged, and must not exclude from jury consideration material issues, 

defenses or theories if there is evidence to support them.” People v Reed, 393 Mich 342, 

349-350; 224 NW2d 867 (1975) (citations omitted). The pertinent rules governing jury 

instructions are set forth in MCR 2.512 and MCR 2.513. MCR 2.512 provides, in 

relevant part: 

(A) Request for Instructions. 

(1) At a time the court reasonably directs, the parties must file 

written requests that the court instruct the jury on the law as stated in the 

requests. In the absence of a direction from the court, a party may file a 

written request for jury instructions at or before the close of the evidence. 

* * * 

(B) Instructing the Jury. 

(1) At any time during the trial, the court may, with or without 

request, instruct the jury on a point of law if the instruction will materially 

aid the jury in understanding the proceedings and arriving at a just verdict. 

(2) Before or after arguments or at both times, as the court elects, the 

court shall instruct the jury on the applicable law, the issues presented by 

the case, and, if a party requests as provided in subrule (A)(2), that party’s 

theory of the case. 

MCR 2.513 provides, in relevant part: 

(A) Preliminary Instructions. After the jury is sworn and before 

evidence is taken, the court shall provide the jury with pretrial instructions 

reasonably likely to assist in its consideration of the case. Such 

instructions, at a minimum, shall communicate the duties of the jury, trial 

procedure, and the law applicable to the case as are reasonably necessary to 
6

enable the jury to understand the proceedings and the evidence. The jury 

also shall be instructed about the elements of all civil claims or all charged 

offenses, as well as the legal presumptions and burdens of proof. The court 

shall provide each juror with a copy of such instructions. . . . 

* * * 

(N) Final Instructions to the Jury. 

(1) Before closing arguments, the court must give the parties a

reasonable opportunity to submit written requests for jury instructions. 

Each party must serve a copy of the written requests on all other parties. 

The court must inform the parties of its proposed action on the requests 

before their closing arguments. After closing arguments are made or 

waived, the court must instruct the jury as required and appropriate, but at 

the discretion of the court, and on notice to the parties, the court may 

instruct the jury before the parties make closing arguments. After jury 

deliberations begin, the court may give additional instructions that are 

appropriate. 

(2) Solicit Questions about Final Instructions. As part of the final 

jury instructions, the court shall advise the jury that it may submit in a 

sealed envelope given to the bailiff any written questions about the jury 

instructions that arise during deliberations. Upon concluding the final 

instructions, the court shall invite the jurors to ask any questions in order to 

clarify the instructions before they retire to deliberate. 

* * * 

(3) Copies of Final Instructions. The court shall provide a written 

copy of the final jury instructions to take into the jury room for 

deliberation. Upon request by any juror, the court may provide additional 

copies as necessary. The court, in its discretion, also may provide the jury 

with a copy of electronically recorded instructions. 

In People v Duncan, 462 Mich 47, 52; 610 NW2d 551 (2000), we addressed a case 

in which the trial court failed to instruct the jury regarding any of the elements of felonyfirearm. Duncan held that “[i]t is structural error requiring automatic reversal to allow a 

jury to deliberate a criminal charge where there is a complete failure to instruct the jury 

regarding any of the elements necessary to determine if the prosecution has proven the 
7

charge beyond a reasonable doubt.” Id. at 48 (emphasis added). We grounded this 

conclusion in two general concerns with the complete failure to instruct. First, “[s]uch a 

defect improperly left the jury to speculate, i.e., the absence of any instructions regarding 

the elements of felony-firearm left the jury to guess what the prosecuting attorney might 

be required to prove.” Id. at 52-53 (emphasis added). Second, “the failure to provide any 

of the elements of the charge may have suggested to the jury that the two charges were 

[somehow] tie-barred, i.e., if the jury found defendant guilty of murder, they were then to 

find defendant guilty of felony-firearm.” Id. at 53. “Such tie-barring would run counter 

to our fundamental constitutional law as it directs the jury to return a verdict.” Id. See 

also id. at 54 (“Indeed, this Court has even recognized that a jury is not required to reach 

consistent verdicts with regard to a felony-firearm charge and the accompanying 

felony.”). 

Unlike the situation in Duncan in which there was a complete failure to provide 

the jury with instructions regarding any of the elements of an offense, in People v

Kowalski, 489 Mich at 501-503, we addressed the matter of imperfect instructions in a 

context in which the trial court had misinformed the jury by omitting individual elements 

of the offense. Kowalski explained that “[i]nstructional errors that omit an element of an 

offense, or otherwise misinform the jury of an offense’s elements, do not necessarily

render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt 

or innocence.” Id. at 501 (quotation marks and citation omitted). Rather, Kowalski

proceeded to assert, “an imperfect instruction is not grounds for setting aside a conviction 

if the instruction fairly presented the issues to be tried and adequately protected the 

defendant’s rights.” Id. at 501-502. Furthermore, although “a jury instruction that 
8

improperly omits an element of a crime amounts to a constitutional error,” such an error 

is waived when defense counsel “explicitly and repeatedly approved the instruction.” Id. 

at 503. 

IV. ANALYSIS 

Neither MCR 2.512 nor MCR 2.513 expressly states whether instructions must be 

provided orally, and the prosecutor contends that the court rules do not require oral 

instructions. Although the requirement to “instruct” the jury could conceivably be read in 

isolation as referring to providing either oral or written instructions,2

 the context in which 

the word “instruct” is used in our rules leads us to conclude that the court rules 

affirmatively require oral instructions. See Haliw v Sterling Hts, 471 Mich 700, 706; 691 

NW2d 753 (2005) (“The intent of the rule must be determined from an examination of 

the court rule itself and its place within the structure of the Michigan Court Rules as a 

whole. When interpreting a court rule or statute, we must be mindful of the surrounding 

body of law into which the provision must be integrated . . . .”) (quotation marks and 

citation omitted); G C Timmis & Co v Guardian Alarm Co, 468 Mich 416, 421; 662 

NW2d 710 (2003) (“Although a phrase or a statement may mean one thing when read in 

isolation, it may mean something substantially different when read in context.”). 

As set forth earlier, MCR 2.513(N)(2) states that “[u]pon concluding the final 

instructions, the court shall invite the jurors to ask any questions in order to clarify the 

 

2

 The dictionary defines the word “instruct” as “to provide with authoritative information 

or advice.” Merriam-Webster’s Collegiate Dictionary (11th ed). 
9

instructions before they retire to deliberate.” This command to invite clarifying questions 

regarding the final instructions, coupled with the specific timing element-- “[u]pon 

concluding the final instructions”-- suggests that the trial court reads the final instructions 

aloud. Id. (emphasis added). Absent oral instructions, the jury obviously would be 

incapable of asking “clarifying” questions at that time simply because it would yet be 

unaware of what the instructions entailed. That is, it would only have been as a result of 

a prior delivery of oral instructions by the court that a “conclusion” would be reached at 

which the jury would have been afforded sufficient information upon which to base a 

question seeking to “clarify” the final instructions. Logically, the jury must be cognizant

of the final instructions at the point at which the invitation to clarify occurs, and the jury 

can only be cognizant of the instructions at that point-- that is, when the court has 

“conclud[ed] the final instructions,” id.-- when the instructions have been orally 

communicated; jurors who still have to read a typed two-page statement after it is 

delivered to them will not be cognizant of the content of those instructions upon 

delivery.3

 

3

 In his partial dissent, Justice ZAHRA suggests that the clause “[u]pon concluding the 

final instructions” could be read as referring to the jurors’ completion of reading the final 

instructions because the clause lacks an express subject; however, that reading is not only 

strained but also grammatically incorrect. See Sun Valley Foods Co v Ward, 460 Mich 

230, 237; 596 NW2d 119 (1999) (“The statutory language must be read and understood 

in its grammatical context, unless it is clear that something different was intended.”); 

Comer, 500 Mich at 289 (stating that the same broad legal principles governing the 

interpretation of statutes apply to the interpretation of court rules). The relevant portion 

of MCR 2.513(N)(2) specifies, “Upon concluding the final instructions, the court shall 

invite the jurors to ask any questions in order to clarify the instructions before they retire 

to deliberate.” As it is employed in MCR 2.513(N)(2), the word “concluding” functions 

as a gerund. See Garner, Garner’s Modern English Usage (Oxford: Oxford University 
10 

Moreover, the MCR 2.513(N)(2) language “[u]pon concluding the final 

instructions” also communicates that there is some beginning, middle, and ending to the 

final instructions, a temporal sequence that makes sense only in the context of final 

instructions being provided to the jury in an oral manner. Id. (emphasis added). If the 

final instructions could be satisfied by merely handing the jury a “two-page typed” 

document, then the phrase “[u]pon concluding the final instructions” would have little 

coherent meaning because nothing of apparent consequence would have preceded the 

“concluding” moment-- indeed the “concluding” instant-- at which the court actually 

provided the written instructions to the jury. Id. (emphasis added). It is a questionable 

use of language to refer to the “conclu[sion]” of a moment, or an instant, at which some 

 

Press, 2016), p 1006 (defining “gerund” as “[a] present-participial form that functions as 

a noun; a verbal noun”). That is, as employed here, “concluding” refers to an event. 

That event is either the trial court’s “concluding the final instructions” or-- as Justice 

ZAHRA suggests-- the jurors’ “concluding [their consideration of] the final instructions.” 

When a sentence begins with a gerund phrase as the sentence at issue here does, the 

subject of the phrase must logically agree with the subject of the sentence. See Sabin, 

The Gregg Reference Manual (New York: McGraw-Hill, 2011), ¶ 1082, p 349 (“When a 

sentence begins with a participial phrase, an infinitive phrase, a gerund phrase, or an 

elliptical clause (one in which essential words are missing), make sure that the phrase or 

clause logically agrees with the subject of the sentence; otherwise, the construction will 

‘dangle.’ ”); Garner’s Modern English Usage, pp 241-242 (explaining that “danglers” are 

problematic with participle phrases and gerund phrases alike; that “danglers” render a 

sentence incoherent or illogical; and that “[i]n the normal word order, a participial phrase 

beginning a sentence (‘Walking down the street,’) should be directly followed by the 

noun acting as subject in the main clause (‘I saw the house’)”). In order to have a proper 

grammatical reading of MCR 2.513(N)(2), the phrase “[u]pon concluding the final 

instructions” must be read as referring to the subject of the sentence here, which is the 

trial court. See MCR 2.513(N)(2) (“Upon concluding the final instructions, the court 

shall invite the jurors to ask . . . .”) (emphasis added). Given that the trial court is the 

subject, it would be improper to read “[u]pon concluding the final instructions” as 

referring to an act of the jury. 
11 

action is taken unless that action in some way represents the culmination of some 

apparent process that has led to, or brought into being, that concluding moment or 

instant.4

 

Furthermore, the notion that the word “instruct” refers to providing oral jury 

instructions is compellingly underscored by the fact that MCR 2.513(N)(3) provides that 

“[t]he court shall provide a written copy of the final jury instructions to take into the jury 

room for deliberation.” (Emphasis added.) By communicating that the court must 

provide a “written copy of the final jury instructions,” MCR 2.513(N)(3) logically 

suggests that the final jury instructions were not originally provided in “writing” under 

 

4

 Interpreting the rules to solely permit the practice of having the jury read the written 

instructions to themselves before the court solicits clarifying questions would not only 

overlook the critical textual clues to the contrary in MCR 2.513(N)(2) but would also be 

inconsistent with the purposes of our court rules. See MCR 1.105 (“These rules are to be 

construed to secure the just, speedy, and economical determination of every action and to 

avoid the consequences of error that does not affect the substantial rights of the parties.”). 

Absent oral guidance by the court, written jury instructions can hardly be said to advance 

“the just, speedy, and economical determination of” a case. Id. Take the instant case, for 

example, in which a time-consuming remand was required to settle the record concerning 

the content of the written jury instructions because the trial court had failed to read the 

relevant portions of the instructions to the jury, which resulted in the instructions not 

becoming part of the final transcript. Moreover, allowing written instructions as the sole 

means of instruction would deprive the jury of the active advice of the trial court and 

would require jurors to read the instructions in the jury box in open court before they 

retired; requiring this to be undertaken in the “fishbowl” of open court-- with parties, the 

gallery, and court officers watching and waiting-- makes little sense and could easily lead 

to a less-than-thorough and unreflective reading by the jury. By contrast, requiring oral 

instructions advances “the just, speedy, and economical determination of” a case given 

that the full panoply of instructions is explained aloud to the jury with the contents of 

those instructions included within any subsequent transcript. Id. Therefore, oral 

instructions not only best comport with the text of MCR 2.513(N)(2) but are also most 

consistent with the purpose of our court rules. 
12 

the requirement in MCR 2.513(N)(1) that “the court must instruct the jury as required and 

appropriate . . . .” MCR 2.513(N)(3) further provides that “[t]he court, in its discretion, 

also may provide the jury with a copy of electronically recorded instructions.” That the 

rule contemplates the existence of “electronically recorded instructions” further suggests 

that the instructions must be provided orally. Thus, the references in MCR 2.513(N)(3) 

to providing “a written copy of the final jury instructions” and to “electronically recorded 

instructions” both indicate that the jury instructions must initially be given orally. 

The court rules provide similar support for oral instructions in MCR 2.513(A), 

which governs preliminary instructions. MCR 2.513(A) indicates that the jury “shall be 

instructed about the elements of all civil claims or all charged offenses” and then states 

that “[t]he court shall provide each juror with a copy of such instructions.” (Emphasis 

added.) Implicit, again, in the additional requirement of MCR 2.513(A) to provide a 

“copy” of the instructions to the jury is the understanding that the trial court orally 

instructed the jury in the first instance. Thus, as with MCR 2.513(N)(3), MCR 2.513(A) 

suggests strongly that the initial act of instructing the jury is undertaken orally. 

This interpretation is not only supported by the various provisions of MCR 2.513 

but also by the manner in which other court rules refer to “jury instructions.” For 

example, MCR 7.312(D)(2)(e) requires that an appellant’s appendix contain “any 

relevant portions of the transcript, including the complete jury instructions if an issue is 

raised regarding a jury instruction.” In order for the “complete jury instructions” to have 

been transcribed and to compose part of the transcript, the jury instructions must have 
13 

been read aloud.5

 Therefore, references to jury instructions throughout the court rules 

seemingly contemplate that the instructions be provided orally. 

In summary, when the court rules are read in context and as a whole, it becomes 

reasonably clear that the commands in MCR 2.512 and MCR 2.513 that direct the trial 

court to “instruct” the jury refer to providing oral instructions.6

 

Nonetheless, in the instant case, although the trial court failed to orally instruct the 

jury regarding the elements of several offenses, defendant, in our judgment, clearly 

waived his claim of instructional error.7

 As Kowalski explained: 

 

5

 Similar court rules that govern appeals in circuit courts and the Court of Appeals lend 

support for the proposition that the court rules require oral instructions. See, e.g., MCR 

7.105(B)(5)(b) (stating that to apply for leave to appeal in circuit court, the appellant 

must file, “unless waived by stipulation of the parties or trial court order, a copy of 

certain transcripts,” including, in an appeal challenging jury instructions, “the transcript 

of the entire charge to the jury”); MCR 7.205(B)(4)(c) (stating that to apply for leave to 

appeal in the Court of Appeals, the appellant shall file with the clerk, “in an appeal 

challenging jury instructions, the transcript of the entire charge to the jury”). 

6

 In his partial dissent, Justice ZAHRA concludes that by allowing for either oral or written 

instruction, the court rules provide trial courts with flexibility to accommodate jurors who 

may have impairments, such as a hearing impairment. However, nothing in our 

interpretation of the relevant court rules prevents a trial court from providing the 

necessary accommodations for jurors who may have impairments or disabilities, and it is 

difficult to envision that a trial court would not affirmatively accommodate a juror who 

had such an impairment. The trial court simply must provide oral instructions in addition

to providing such accommodations. 

7

 We note that Duncan, 462 Mich at 57, which held that a trial court’s complete failure to 

instruct the jury on the elements of the charged offenses constituted structural error 

requiring reversal, did not address the concept of waiver. However, because the instant 

case is distinguishable from Duncan, we need not address whether the complete failure to 

instruct would evade a waiver analysis. Unlike Duncan, the jury here received 

instructions in some form or another on the elements of all of the offenses-- it is only the 

manner in which the instructions were presented that renders them imperfect. As with 
14 

This Court has defined “waiver” as the intentional relinquishment or 

abandonment of a known right. One who waives his rights under a rule 

may not then seek appellate review of a claimed deprivation of those rights, 

for his waiver has extinguished any error. When defense counsel clearly 

expresses satisfaction with a trial court’s decision, counsel’s action will be 

deemed to constitute a waiver. [Kowalski, 489 Mich at 503 (quotation 

marks and citations omitted).] 

Here, the jury received the document containing the definition of possession for felonyfirearm and the elements of CCW, felonious assault, and interference with electronic 

communications. During the trial court’s oral instructions, the trial court told the jury 

that it had already been provided the charges and the elements of the charges, and at the 

conclusion, defense counsel was asked whether there were any issues with the final 

instructions. Defense counsel raised an objection regarding the felony-firearm 

instruction, and additional instructions were provided. The trial court then asked whether 

defense counsel and the prosecutor were satisfied, and defense counsel replied, “Yes, 

your Honor.” After the jury was excused, the trial court again asked, “All parties are 

satisfied with the instructions as given?” Both the prosecutor and defense counsel again 

responded, “Yes, your Honor.” As this Court concluded in Kowalski, “by expressly and 

repeatedly approving the jury instructions on the record, defendant waived any objection 

to the erroneous instructions, and there is no error to review.” Id. at 504. Therefore, the 

Court of Appeals majority erred by concluding that this claim of instructional error 

warranted a new trial.8

 

Kowalski, the claim of instructional error here did not amount to structural error-- it is a 

nonstructural error and is clearly subject to a waiver analysis. 

8

 In his partial dissent, Justice ZAHRA asserts that “it makes eminent sense to amend the 

court rules to require a trial court to provide both an oral recitation and written copies of 

the final jury instructions.” No justice in the majority necessarily disagrees with this 
15 

V. OTHER ISSUE 

In addition to the above issue, the Court of Appeals majority held that there was a 

separate claim of instructional error that independently warranted a new trial. 

Specifically, it held that there had been a complete failure to instruct the jury regarding 

felony-firearm, which amounted to a structural error requiring reversal under Duncan. 

Here, the document containing written jury instructions that was provided to the jury did 

not list the full instructions for felony-firearm; rather, the instructions listed under felonyfirearm merely pertained to what constitutes possession. However, defense counsel 

objected to the instructions regarding felony-firearm, and the trial court instructed the 

jury that “[i]f, for example, you find the defendant not guilty of the other three counts, 

you cannot find him guilty of the felony firearm. Okay? Because no felony has been 

committed.” In addition, the court explained, “If you do find the defendant guilty in 

count one, two, or three and understand, in your belief, that a weapon was used to 

commission [sic] those crimes, then count four [felony-firearm] would be applicable.” 

Following these additional instructions, both the prosecutor and defense counsel 

indicated that they were satisfied with the instructions for felony-firearm. 

As with the earlier claim of instructional error, “by expressly and repeatedly 

approving the jury instructions on the record, defendant waived any objection to the 

erroneous instructions, and there is no error to review.” Kowalski, 489 Mich at 504.9

 

 

proposition. However, the court rules do not yet expressly incorporate such language 

and, if and when such language is eventually incorporated, it will have been undertaken 

in conformity and continuity with the existing rules rather than establishing an entirely 

new requirement. 

9

 As Judge SAWYER’s dissent recognized, there were problems with the trial court’s 
16 

Given the clear waiver in this case, the Court of Appeals majority erred by holding that 

this claim of instructional error warranted a new trial.10 

VI. CONCLUSION 

We conclude that Michigan court rules require that jury instructions be provided 

orally. However, defendant waived this claim and any additional claims of instructional 

error. For that reason, we affirm the judgment of the Court of Appeals but only to the 

extent that it held that oral jury instructions are required; we reverse to the extent that it 

held that defendant’s claims of instructional error required reversal of his convictions; 

and we remand to the Court of Appeals for review of defendant’s previously unaddressed 

arguments relating to ineffective assistance of counsel. In all other respects, we deny 

 

felony-firearm instructions but the claims of instructional error were waived. Similar to 

the previously discussed claim of instructional error, we need not address whether the 

instant claim potentially evades a waiver analysis. Despite defendant’s claimed errors 

with this instruction, the instant case did not involve a situation in which the trial court 

entirely omitted any instruction regarding the elements of felony-firearm; accordingly, 

this case is unlike Duncan. Rather, this case-- as with Kowalski-- involves a situation in 

which the trial court provided imperfect instructions regarding the elements of an offense, 

and the claimed error is subject to waiver analysis. 

10 The majority further erred by holding that it need not “resort to ineffective assistance 

of counsel principles to circumvent potential waiver issues . . . .” Traver, 316 Mich App 

at 601. In this case, defendant must establish a valid claim of ineffective assistance of 

counsel in order for him to be entitled to relief on his waived claims of instructional error. 

Defendant raised the claims of ineffective assistance in the Court of Appeals, but they 

were not addressed by the majority. We decline to address them in the first instance and 

instead remand to the Court of Appeals for consideration of defendant’s arguments that 

defense counsel was constitutionally ineffective to the extent that defendant’s claims of 

instructional error were waived. 
17 

leave to appeal because we are not persuaded that the remaining question raised by the 

prosecutor should be reviewed by this Court. 

 Stephen J. Markman 

 Bridget M. McCormack 

 Richard H. Bernstein 

 Kurtis T. Wilder 

 Elizabeth T. Clement 
S T A T E O F M I C H I G A N 

SUPREME COURT 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellant, 

v No. 154494 

GARY MICHAEL TRAVER, 

 Defendant-Appellee. 

ZAHRA, J. (concurring in part and dissenting in part). 

The majority holds that MCR 2.512 and MCR 2.513 require a trial court to orally 

deliver final instructions to the jury after the parties’ closing arguments have been made 

or waived. As a matter of sound policy and practice, I believe Michigan courts should 

instruct jurors orally and provide jurors written copies of all applicable instructions 

before they commence deliberations. But the majority’s holding is not based on any 

explicit directive in the court rules. Rather, the majority infers this purported mandate 

from the syntax of the surrounding text of the pertinent rules. Because the plain language 

of these rules does not support the proposition that a trial court is required to read aloud 

the final jury instructions, as opposed to provide the jurors with written instructions, I 

respectfully dissent. 
2

This Court applies the same legal principles of interpretation and construction 

applicable to statutes when it construes court rules.1

 Accordingly, we begin by 

examining the plain language of the rule.2

 In doing so, we must give effect to every 

word, phrase, and clause in a court rule, and, in particular, consider the plain meaning of 

the critical word or phrase to avoid rendering any part of the rule nugatory or surplusage 

if at all possible.3

 If a word or phrase is undefined and lacks a unique legal meaning, it 

must be accorded its plain and ordinary meaning, for which a lay dictionary may be 

consulted.4

 There is no need for judicial construction or interpretation if the court rule is 

unambiguous; the plain meaning of the rule must be enforced as written.5

 

MCR 2.512 (entitled “Instructions to Jury”) and MCR 2.513 (entitled “Conduct of 

Jury Trial”) set forth the procedures as they pertain to the trial court delivering jury 

instructions. In particular, MCR 2.512(B) provides as follows:

(1) At any time during the trial, the court may, with or without 

request, instruct the jury on a point of law if the instruction will materially 

aid the jury in understanding the proceedings and arriving at a just verdict. 

 

1 Ligons v Crittenton Hosp, 490 Mich 61, 70; 803 NW2d 271 (2011); see also People v 

Duncan, 494 Mich 713, 723; 835 NW2d 399 (2013). 

2 Duncan, 494 Mich at 723. 

3

 Accord SBC Health Midwest, Inc v Kentwood, 500 Mich 65, 70-71; 894 NW2d 535 

(2017); In re McCarrick/Lamoreaux, 307 Mich App 436, 447; 861 NW2d 303 (2014); 

State Bd of Ed v Houghton Lake Community Sch, 430 Mich 658, 671; 425 NW2d 80 

(1988). 

4

 See Duncan, 494 Mich at 723 (“The Court may refer to dictionaries to aid in discerning 

the plain meaning of a rule.”). 

5 Id. 
3

(2) Before or after arguments or at both times, as the court elects, the 

court shall instruct the jury on the applicable law, the issues presented by 

the case, and, if a party requests as provided in subrule (A)(2), that party’s 

theory of the case.[6] 

Further, MCR 2.513(N) provides, in pertinent part: 

(1) Before closing arguments, the court must give the parties a

reasonable opportunity to submit written requests for jury instructions. 

Each party must serve a copy of the written requests on all other parties. 

The court must inform the parties of its proposed action on the requests 

before their closing arguments. After closing arguments are made or 

waived, the court must instruct the jury as required and appropriate, but at 

the discretion of the court, and on notice to the parties, the court may 

instruct the jury before the parties make closing arguments. After jury 

deliberations begin, the court may give additional instructions that are 

appropriate. 

(2) Solicit Questions about Final Instructions. As part of the final 

jury instructions, the court shall advise the jury that it may submit in a 

sealed envelope given to the bailiff any written questions about the jury 

instructions that arise during deliberations. Upon concluding the final 

instructions, the court shall invite the jurors to ask any questions in order to 

clarify the instructions before they retire to deliberate. 

* * * 

(3) Copies of Final Instructions. The court shall provide a written 

copy of the final jury instructions to take into the jury room for 

deliberation. Upon request by any juror, the court may provide additional 

copies as necessary. The court, in its discretion, also may provide the jury 

with a copy of electronically recorded instructions. 

 

6

 MCR 2.512(A)(2) provides: “In addition to requests for instructions submitted under 

subrule (A)(1), after the close of the evidence, each party shall submit in writing to the 

court a statement of the issues and may submit the party’s theory of the case regarding 

each issue. The statement must be concise, be narrative in form, and set forth as issues 

only those disputed propositions of fact that are supported by the evidence. The theory 

may include those claims supported by the evidence or admitted.” 
4

MCR 2.512(B)(2) requires that the trial court “instruct the jury on the applicable 

law, the issues presented by the case, and, if a party requests as provided in subrule 

(A)(2), that party’s theory of the case.”7

 MCR 2.513(N)(1) similarly requires that the 

trial court “instruct the jury as required and appropriate” after closing arguments have 

been made or waived.8

 The principal term of interest in both of these rules is “instruct,” 

which Merriam-Webster’s Collegiate Dictionary defines as “to provide with authoritative 

information or advice.”9

 In according the transitive verb “instruct” its plain and ordinary 

meaning, the court rules only require that the trial court provide the jury with 

authoritative information or advice as required and appropriate, which would include the 

applicable law, the issues presented by the case, and, perhaps, a party’s theory of the 

case. These rules do not, however, require any particular method for delivering this 

 

7

 Emphasis added. 

8

 Emphasis added. 

9 Merriam-Webster’s Collegiate Dictionary (11th ed), def 2. The transitive verb 

“instruct” is also defined as “to give knowledge to,” id., def 1, and “to give an order or 

command to,” id., def 3. A court’s selection of the proper definition must be guided by 

the context of the rule in which the term appears. See People v Shami, 501 Mich ___, 

___ n 30; ___ NW2d ___ (2018) (Docket No. 155273); slip op at 10 n 30. Therefore, it is 

important to recognize that the term “instruct” in this context is used to describe the trial 

court’s responsibility with regard to the jury after closing arguments. Because the 

dictionary uses “the judge instructed the jury” as an example for the definition of “to 

provide with authoritative information or advice,” id., def 2, I believe it is the most 

appropriate definition for determining the plain and ordinary meaning of “instruct” in 

MCR 2.513(N)(1). Relatedly, Black’s Law Dictionary defines the phrase “jury 

instruction” as a “direction or guideline that a judge gives a jury concerning the law of 

the case.” Black’s Law Dictionary (10th ed). This definition similarly does not dictate 

oral over written transmission of jury instructions. 
5

information; a trial court can provide authoritative information in either oral or written 

form. 

As plainly written, the court rules provide trial courts with the flexibility needed to 

accommodate all qualified jurors, especially those who may have impairments or 

disabilities. On the one hand, if the jury includes one or more members who are visually 

impaired, an oral recitation of the final jury instructions would be appropriate and 

necessary for the trial court to properly discharge its duty to instruct the jury. On the 

other hand, if the jury includes one or more members who are hearing impaired, oral 

instructions would most likely be inadequate, and written instructions would be 

appropriate to accommodate the needs of those jurors.10 It is precisely this sort of 

flexibility that complements and accommodates the ever-increasing diversity of juries. 

Nevertheless, the majority surmises that the contextual cues in the surrounding 

text of MCR 2.513 justify its conclusion that the court rules require a trial court to orally 

deliver final jury instructions. For instance, the majority examines the language in MCR 

2.513(N)(2), which states that “[u]pon concluding the final instructions, the court shall 

invite the jurors to ask any questions in order to clarify the instructions before they retire 

to deliberate.” According to the majority, this language suggests that the trial court must 

read aloud from the final instructions because the jury would be incapable of asking 

clarifying questions without those oral instructions. I disagree. 

 

10 Another reasonable accommodation might involve providing the juror with a sign 

language interpreter. See Frank & Aleinikoff, Juries and the Disabled, The Federal 

Lawyer (Dec 2012), pp 35-36. 
6

The phrase “[u]pon concluding the final instructions” is a prepositional gerund 

phrase, insofar as the gerund phrase “concluding the final instructions” is serving as the 

object of the preposition “[u]pon.”11 Although a gerund functions as a noun, a 

prepositional gerund phrase may function as a noun, adjective, or adverb.12 In this 

context, the phrase serves an adverbial function; it is addressing when the court must 

invite questions from jurors to clarify any of the final instructions. To avoid confusion, a 

prepositional gerund phrase should be written in a way that it logically agrees with the 

subject of the sentence. Thus, the majority is correct in suggesting that one logical 

reading of this sentence would have the court orally concluding the final instructions, 

after which the court is then required to invite questions from the jurors. But because 

participles and gerunds are often misplaced, I am not confident that this is the only 

logical reading of this sentence. For instance, when the jurors and the trial judge each 

 

11 Although a present participial phrase and a gerund phrase both include a verb that ends 

in -ing, there is a distinction between the two. On the one hand, a gerund is a verb that 

functions as a noun, thereby occupying some positions in a sentence that a noun 

ordinarily would (e.g., subject, direct object, subject complement, and object of a 

preposition). See Strunk & White, The Elements of Style (4th ed), pp 12-13, 55-56; see 

also The Chicago Manual of Style (16th ed), Rule 5.109 to Rule 5.111. A present 

participle, on the other hand, is a verb that functions as an adjective. See Strunk & 

White, The Elements of Style, pp 13-14, 93. Accordingly, the difference between 

participles and gerunds turns on their function. A present participial phrasing of MCR 

2.513(N)(2) looks very similar to the current language of the subrule and would appear as 

follows: “Concluding the final instructions, the court shall invite the jurors to ask any 

questions in order to clarify the instructions before they retire to deliberate.” For this 

iteration, “concluding” is the present participle and serves the function of an adjective, 

which then raises the question whether “concluding” is modifying the noun “court,” the 

noun “jurors,” or both. 

12 The Chicago Manual of Style, Rule 5.173. 
7

have their own individual copy of the written jury instructions, this sentence could be 

read as both the court and the jurors functioning as the subjects of “concluding.” In other 

words, once the court and the jurors have finished reading the instructions, MCR 

2.513(N)(2) simply requires that the court then invite the jurors to ask any clarifying 

questions that they may have regarding those instructions.13 Because this sentence itself 

could be improved upon to clarify the subject of the prepositional gerund phrase, I 

believe the weight given to the majority’s implication drawn from this particular 

contextual cue is minimal and does not necessarily suggest that a trial court is required, in 

all instances, to orally deliver final jury instructions.14

The majority also looks to MCR 2.513(N)(3), which requires that the trial court 

“provide a written copy of the final jury instructions to take into the jury room for 

deliberation.” According to the majority, providing a written copy of the instructions for 

the jurors to take with them into the jury room suggests that the instructions were 

originally delivered orally. The majority also believes that the sentence in this subrule 

 

13 The majority also posits that the phrase “[u]pon concluding” communicates a 

“temporal sequence” that would only make sense in the context of oral instructions. Ante

at 10. But jurors reading to themselves from written instructions would also have a 

temporal sequence because reading has “some beginning, middle, and ending,” ante at 

10, such that the trial court would still be able to invite clarifying questions after the 

jurors had completed reading the written instructions. 

14 The majority claims that permitting jurors to read instructions to themselves would be 

inconsistent with the purposes of our court rules because, without “oral guidance” from 

the court, written instructions would not “advance ‘the just, speedy, and economical 

determination of’ a case.” Ante at 11 n 4, quoting MCR 1.105. I question, however, how 

much “guidance” or “advice” a court is actually providing when it simply reads aloud 

from the same instructions the jurors could read for themselves. 
8

that a trial court “also may provide the jury with a copy of electronically recorded 

instructions” suggests that the initial instructions were provided orally. I disagree for two 

reasons. 

First, this subrule does not require that a trial court read the instructions aloud. 

Rather, it speaks only to what is required of the trial court in regard to what jurors may 

take with them into the jury room when deliberating. In other words, it addresses what is 

required after the trial court provides the final jury instructions following closing 

arguments and would apply regardless of whether those instructions were provided in 

oral or written form.15 Thus, this subrule would be consistent with providing each juror 

their own copy of the written instructions, having jurors read those instructions to 

themselves, having the jurors ask any questions for clarification, and then having the 

jurors take a single copy of those instructions with them into the jury room when they 

retire to deliberate. 

Second, providing the jurors with a copy of the instructions for reference during 

deliberations means that jurors are not required to remember every single instruction. 

Returning to my earlier discussion of a visually impaired juror, however, a copy of the 

written instructions would not serve this purpose. Accordingly, allowing the option for 

an “electronically recorded” version of the instructions would serve the same purpose of 

a written copy of the instructions, thereby enabling a visually impaired juror to refer to 

those instructions during deliberation. 

 

15 For this reason, written instructions would not render this subrule surplusage, as the 

Court of Appeals majority suggested. See People v Traver, 316 Mich App 588, 597; 894 

NW2d 89 (2016). 
9

Next, the majority claims that the language of MCR 2.513(A)—which governs 

preliminary instructions and states that the trial court “shall provide the jury with pretrial 

instructions reasonably likely to assist in its consideration of the case” and “shall provide 

each juror with a copy of such instructions”—indicates that the trial court orally 

instructed the jury in the first instance. Not surprisingly, I disagree with this assertion. 

The plain language of this subrule simply requires the trial court to provide pretrial 

instructions to the jury and makes clear that each juror is entitled to his or her own 

individual copy of those instructions. There is nothing in this rule to suggest that 

preliminary instructions must be delivered orally, let alone that oral delivery of the final 

jury instructions is required. 

Finally, going beyond MCR 2.512 and MCR 2.513, the majority relies on a court 

rule that governs the preparation of briefs and appendixes for calendar cases to be argued 

in this Court for further support for its conclusion that a trial court is required to read 

final jury instructions out loud. Specifically, MCR 7.312(D)(2)(e) addresses the contents 

of an appellant’s appendix, which must contain “any relevant portions of the transcript, 

including the complete jury instructions if an issue is raised regarding a jury instruction.” 

In order for the jury instructions to become part of a transcript, says the majority, those 

instructions must have been first read aloud and then transcribed. But this does not mean 

that the jury instructions must be given orally. Rather, if written instructions were 

provided to the jurors, they would be a “relevant portion[] of the . . . record” required to 

be included in the appendix under MCR 7.312(D)(2)(d). 

For these reasons, I am not willing to make the same interpretative leap the 

majority does to read into the plain language of MCR 2.512 and MCR 2.513 a 
10 

requirement that the trial court must orally deliver final jury instructions. That being 

said, I believe it makes eminent sense to amend the court rules to require a trial court to 

provide both an oral recitation and written copies of the final jury instructions. But until 

such an amendment comes to fruition, I must respectfully dissent. 

 Brian K. Zahra 
S T A T E O F M I C H I G A N 

SUPREME COURT 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellant, 

v No. 154494 

GARY MICHAEL TRAVER, 

 Defendant-Appellee. 

VIVIANO, J. (dissenting in part and concurring in part). 

The majority holds that MCR 2.512 and MCR 2.513 require a trial court to orally 

instruct juries. Although I believe wholeheartedly that trial courts should provide oral 

instructions to juries, I disagree that such a requirement can be gleaned from our rules in 

their present form.1

 Therefore, I respectfully dissent from the majority’s conclusion to 

the contrary. 

I agree with the majority that “[n]either MCR 2.512 nor MCR 2.513 expressly 

states whether instructions must be provided orally . . . .”2

 But I disagree that such a 

requirement arises contextually from our court rules. The majority first examines MCR 

 

1

 Several years ago, at my urging, the Court opened an administrative file to consider 

amending MCR 2.513 to clarify that trial courts must provide juries with oral 

instructions. I believe we should act with dispatch to clarify our rules to clearly require 

that jury instructions must be provided orally. 

2 Ante at 8. 
2

2.513(N)(2), which provides that “[u]pon concluding the final instructions, the court shall 

invite the jurors to ask any questions in order to clarify the instructions before they retire 

to deliberate.” I agree with the majority that the rule suggests a sequence of events in 

which the instructions are presented to the jurors, who can then ask clarifying questions. 

But nothing indicates that the first step in the sequence must be oral jury instructions; the 

trial court could just as well provide written instructions for the jury to read before the 

jurors are invited to ask questions. 

The majority also scrutinizes MCR 2.513(A) and MCR 2.513(N)(3), which require 

the trial court to provide each juror with a copy of certain preliminary instructions at the 

beginning of the trial and the entire jury with a copy of the final jury instructions to take 

into the jury room for deliberation. According to the majority, these rules “suggest[] 

strongly that the initial act of instructing the jury is undertaken orally.”3 I do not see 

how, since nothing indicates that the first version of the instructions—from which copies 

are provided—needs to be oral. 

Even less convincingly, the majority relies on court rules providing what is 

required to file an appeal—rules that quite explicitly do not govern the conduct of a jury 

trial. Regardless, these rules do not aid our inquiry because while jury instructions read 

aloud to the jury would become part of the transcript needed for an appeal, so too could 

the trial court mark as an exhibit a copy of the written instructions provided to the jurors, 

which would then become a “relevant portion[] of the . . . record” required to be included 

 

3 Ante at 12. 
3

in the appendix under MCR 7.312(D)(2)(d).4

As I noted at the outset, and despite the foregoing analysis, I strongly believe we 

should amend our court rules to require trial courts to provide juries with oral 

instructions. This is already the dominant practice, and has been for some time.5

 Indeed, 

the federal circuit courts have held that the failure to orally instruct a jury is error.6

 The 

Third Circuit has explained why this is so: 

For not only are counsel and the defendant entitled to hear the instructions 

in order that they may, if they are incorrect, object to them and secure their 

prompt correction by the trial judge, but it is equally important to make as 

certain as may be that each member of the jury has actually received the 

instructions. It is therefore essential that all instructions to the jury be given 

by the trial judge orally in the presence of counsel and the defendant. We 

 

4

 For good measure, the majority posits that permitting jurors to read instructions to 

themselves would be inconsistent with the purposes of our court rules because, without 

“oral guidance” from the court, written instructions would not “advance ‘the just, speedy, 

and economical determination of’ a case.” Ante at 11 n 4, quoting MCR 1.105. 

However, this rule is aspirational in nature and does not provide much assistance to our 

textual analysis of the governing rules. 

5

 See Guam v Marquez, 963 F2d 1311, 1314 (CA 9, 1992) (“[T]rial judges and litigators 

have always assumed that jury instructions must be oral.”). See also United States v 

Robinson, 724 F3d 878, 887 (CA 7, 2013) (“Our criminal justice system has relied on 

oral jury instructions since its inception . . . .”), citing Marder, Bringing Jury Instructions 

Into the Twenty-First Century, 81 Notre Dame L Rev 449, 490-510 (2006). 

6

 See, e.g., United States v Noble, 155 F2d 315, 318 (CA 3, 1946) (holding that the trial 

court’s failure to orally instruct the jury on the elements was error); United States v 

Perry, 375 US App DC 238; 479 F3d 885 (2007) (same); Marquez, 963 F2d at 1314-

1315 (“[A]ll jury instructions must be read aloud to the jury in the presence of counsel 

and the defendant.”); Robinson, 724 F3d at 887-888 (“[A] trial judge commits error if she 

fails to read aloud jury instructions in their entirety.”) (quotation marks and citation 

omitted); see also 2A Wright & Miller, Federal Practice & Procedure (4th ed), § 483, 

p 421 (“All instructions to the jury . . . must be announced orally by the judge.”). 
4

conclude that the failure in the present case to instruct the jury upon the 

elements of the crime was error.[7]

Several courts in other states have also held the same.8

 

In 2011, the rules governing the conduct of jury trials in Michigan were amended 

to incorporate many of the jury reform principles tested in the Court’s two-year jury 

reform pilot project.9

 Under the former jury instruction rule, supplemental written 

instructions were permitted but not required.10 As noted above, the current rule now 

requires that additional written or electronic copies be provided to jurors at the beginning 

and end of the trial. I believe the purpose of this reform was to require the trial court to 

supplement the traditional verbal instructions with a written copy to improve juror 

comprehension.11 Unfortunately, the language of the rule does not make this intention 

 

7 Noble, 155 F2d at 318. Notably, the court concluded that the trial judge would not have 

fulfilled his duty even if written instructions provided to the jury had fully recited all 

applicable legal principles. Id. 

8

 See, e.g., State v Lamb, 541 NW2d 457, 462 (ND, 1996) (holding that the court must 

read oral instructions to the jury). Accord State v Lindsey, 245 NJ Super 466, 470-471; 

586 A2d 269 (1991); State v Iosefa, 77 Hawaii 177, 184; 880 P2d 1224 (1994); State v 

Castoreno, 255 Kan 401, 411-412; 874 P2d 1173 (1994). 

9

 See 489 Mich clxxvi, cxcvi (2011) (staff comment). 

10 See MCR 2.516(B)(5), as amended June 2, 1998, 457 Mich xcvi (1998). 

11 See, e.g., Robinson, 724 F3d at 887-888 (“Our criminal justice system has relied on 

oral jury instructions since its inception, and while there is ample evidence that the 

increasingly common use of supplementary written instructions can help jurors 

understand difficult legal concepts, a trial judge commits error if she fails to ‘read aloud 

jury instructions in their entirety[.]’ ”) (citations omitted). See also Elwork et al, Making 

Jury Instructions Understandable (Charlottesville: The Michie Company, 1982), p 20 

(“Several experimenters have shown that vocalization of written material facilitates 

memory. Thus, the ideal is to present material in both modes at the same time.”), citing 

Murray, Vocalization at Presentation and Immediate Recall With Varying Methods, 18 Q 
5

explicit. And “[i]t is the law that governs, not the intent of the lawgiver.”12 Accordingly, 

I respectfully dissent from the majority’s holding that oral jury instructions are required.13

 David F. Viviano 

 

 

J of Experimental Psychol 9 (1966), and Tell & Ferguson, Influence of Active and 

Passive Vocalization on Short Term Recall, 102 J of Experimental Psychol 347 (1974). 

12 Scalia, A Matter of Interpretation: Federal Courts and the Law (Princeton: Princeton 

University Press, 1997), p 17. 

13 Because I do not believe that our court rules presently require oral jury instructions, I 

would not address whether the court’s failure to provide them is subject to a waiver 

analysis.