Crone, J.
Jay Lynn appeals his convictions, following a jury trial, for battery and disorderly conduct, both as class B misdemeanors. …
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The State charged Lynn with class A misdemeanor battery and class B misdemeanor disorderly conduct. Following a trial, the jury found Lynn guilty of battery and disorderly conduct, both as class B misdemeanors. This appeal ensued.
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Lynn concedes that Preliminary Instruction 4 followed Indiana Pattern Criminal Jury Instruction 1.0700, which provides how the jury is to be instructed as to the charges. However, Lynn complains that the trial court here improperly instructed the jury by including the affirmation language from the original charging informations. Specifically, Preliminary Instruction 4 provided in relevant part:
In this case, the State of Indiana has charged the Defendant with:
Count I: Battery A Class A Misdemeanor
Count II: Disorderly Conduct A Class B Misdemeanor
The Charges Read as Follows:
Count 1, Battery, Class A Misdemeanor
The undersigned affiant does hereby swear or affirm under the penalties of perjury that…
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Lynn asserts that the “swear or affirm under the penalties of perjury” language invaded the province of the jury and deprived him of due process because that language constituted a “tacit expression of support for the State’s position” regarding “the ultimate question of Lynn’s guilt.” … Thus, he argues, the trial court’s failure to redact the affirmation language from the instruction amounted to fundamental error. We disagree.
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Nonetheless, we are compelled to note that, as a general matter, we think that such affirmation language has no place in jury instructions and that the best practice is for trial courts to redact such language. Inclusion of affirmation language of this type raises several potential problems, including that it gives the semblance of attribution to the trial court or to an unknown affiant, who may or may not be available for cross-examination, as to the veracity of the factual basis for the charges. This is undesirable and completely avoidable. Thus, while the pattern jury instructions do not clearly require redaction, we strongly advise it.
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Affirmed.
Kirsch, J., and May, J., concur.