(concurring in part and dissenting in part). I agree with the lead opinion that a new trial is warranted. I write separately because I disagree that the error here is based solely on any failure to comply with MCR 6.414(F).1 Rather, I conclude that a new *596trial is necessary on the basis of the trial court’s mistake in giving the original instruction despite the fact that defense counsel relied on the modified version in his closing argument, which in turn compromised defense counsel’s ability to effectively represent defendant.2 As a consequence of the trial court’s mistake, the court effectively denied defense counsel the ability to correctly argue the applicable law to the jury.3 I also believe the ramifications of such an error are constitutional in nature.

i

I agree with the lead opinion in finding persuasive People v Patskan, 387 Mich 701; 199 NW2d 458 (1972). My persuasion, however, is based on the fact *597that the Patskan Court stated that the error before it was “fundamentally unfair” and an infringement on the “defendant’s right to due process of law.” Id. at 710.4 Additionally, the United States Supreme Court in United States v Cronic, 466 US 648, 659, n 25; 104 S Ct 2039; 80 L Ed 2d 657 (1984), citing, inter alia, Herring v New York, 422 US 853; 95 S Ct 2550; 45 L Ed 2d 593 (1975), noted that it

has uniformly found constitutional error without any showing of prejudice when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding.

In Herring, supra at 860, 862-863, the Supreme Court concluded:

“The Constitutional right of a defendant to be heard through counsel necessarily includes his right to have his counsel make a proper argument on the evidence and the applicable law in his favor . . .

[N]o aspect of such advocacy could be more important than the opportunity finally to marshal the evidence for each side before submission of the case to judgment.

*598* * *

[T]he difference in any case between total denial of final argument and a concise but persuasive summation could spell the difference, for the defendant, between liberty and unjust imprisonment.

Accordingly, because the United States Supreme Court has held that the closing argument “ ‘necessarily includes [the defendant’s] right to have his counsel make a proper argument on [all the admissible] evidence’ ”5 that had been presented before the jury, I conclude that the error here is constitutional in dimension.6

*599II

In order to find constitutional error under circumstances like those in the instant case, a showing of prejudice is required before reversal is warranted.7 I believe the proper analytical framework for prejudice analysis is found in People v Anderson (After Remand), 446 Mich 392, 405; 521 NW2d 538 (1994). *600There, we outlined the inquiry the United States Supreme Court held must be made by a reviewing court regarding “[a]n error that violates the federal constitution . . . Id. at 404, citing Chapman v California, 386 US 18, 24; 87 S Ct 824; 17 L Ed 2d 705 (1967), and Arizona v Fulminante, 499 US 279; 111 S Ct 1246; 113 L Ed 2d 302 (1991).8 In Anderson, supra at 405, we noted that the Court in Fulminante, supra at 309, stated that the renewing court:

First . . . must ask if the error is a “structural defect[ ] in the constitution of the trial mechanism, which def[ies] analysis by ‘harmless-error’ standards.”[9]

When a structural defect is found, “a court must automatically reverse.” Anderson, supra at 405. However, not all errors demand reversal per se. Instead, other errors

“occur[ ] during the presentation of the case to the jury, [ ] which may [ ] be quantitatively assessed in the context of other evidence presented in order to determine whether its *601admission was harmless beyond a reasonable doubt.” [Id. at 405-406, quoting Fulminante, supra at 307-308.] [10]

These errors require the reviewing court

to determine, beyond a reasonable doubt that there is no “reasonable possibility that the evidence complained of might have contributed to the conviction.” [Id. at 406, quoting Chapman, supra at 23.]

The lead opinion refers to the first inquiry set forth by the Court in Fulminante, supra at 309.11 However, the lead opinion inadvertently mentions only the first part of the “two-part inquiry,” i.e., the reviewing court must ask if the error defies a harmless error standard because it constitutes a total deprivation “of due process.”12 I agree that the error in this case does not warrant automatic reversal because it does not equate to a “total deprivation of due process.”13 I conclude that the issue here is whether defendant was denied her right to representation under the Sixth Amendment of the United States Constitution as a consequence of the trial court’s decision not to provide the modified instruction to the jury, i.e., whether we may *602conclude beyond a reasonable doubt that there is no possibility that the trial court’s failure to provide the modified instruction contributed to defendant’s conviction.

Accordingly, part two of the “two-part inquiry” from Fulminante, supra at 309, should be applied to the error in this case. In determining whether a new trial is demanded, the people are required to prove beyond a reasonable doubt that there is no “ ‘reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” Anderson, supra at 406, n 36, quoting Chapman, supra at 24.14

III

The people argue that defendant was not prejudiced because, even if the trial court had instructed the jury on the modified instruction, the jury’s focus still would have been on whether a reasonable person in defendant’s position could have avoided the injury to Rodney by using ordinary care.15

Regardless of the people’s contention, I conclude that the Court of Appeals reversal of defendant’s conviction should be affirmed if defense counsel’s closing argument was prejudicially affected as a result of the trial court’s acknowledgment of defense counsel’s *603proposed modification. See Kotteakos v United States, 328 US 750; 66 S Ct 1239; 90 L Ed 1557 (1946), Chapman and Anderson, supra. Hence, the trial court’s failure to provide the modified instruction must be comparatively assessed in light of the record as a whole and a determination must be made with regard to whether it can be said beyond a reasonable doubt that the error was harmless. Anderson, supra at 406, citing Fulminante, supra at 307-308.16

In this instance, after the people consented to17 and the trial court accepted the modified portion of the instructions, defense counsel argued throughout his closing argument that defendant, to be found guilty, would had to have known that Rodney’s death would result as a consequence of her conduct.18 Defense *604counsel’s reliance on the modified instruction is clearly evidenced throughout his closing argument by the following sampling from the trial transcript, i.e., that defendant did not realize her failure to hydrate Rodney would cause his death:

It is what [defendant] did to Rodney and whether under the circumstances it was apparent to her what she did caused his death.

* * *

[Defendant] got no support or no clue that what she was doing■ — that is, denying him when he wanted more water' — ■ that that was wrong or that would lead to death.

* * *

[T]here was no suggestion that if [defendant] reduce [d] the intake [of water], you are going to cause any — you are going to cause death, and that’s what you have got to look to.

* * *

[Y]ou will not find from the evidence that there was anything apparent to [defendant], which would lead a reasonable person to conclude that by denying his excessive demand, [Rodney] would die.

* * *

You have got to conclude that it was apparent to [defendant] as she was caring for her child that her conduct would lead — 'if she continued, would lead to his death. [Emphasis added.]

*605The effectiveness of defense counsel’s argument and the totality of the defense was impaired by counsel’s reliance on inaccurate information regarding the jury instructions. As such, it cannot be concluded beyond a reasonable doubt that the trial court’s failure to provide the instruction had no effect on the jury’s verdict.

The people argue that the jury’s verdict would not have been affected had defense counsel based his closing argument on the accurate instruction.19 Nevertheless, I am persuaded that it cannot be concluded beyond a reasonable doubt that if defense counsel's argument had been retailored to focus more vigorously on defendant’s conduct and not on Rodney’s resulting death, there would not have been a different verdict.20 Having reviewed the record as a whole, it is apparent that defense counsel relied on “causing death” as essential to the fourth element of gross negligence.21 Therefore, it seems reasonable to conclude that most of defense counsel’s closing argument was repudiated by the trial court’s instructions. Had the trial court instructed the jury pursuant to the modified instruction, I believe “it is completely impossible ... to say that . . . the [people] ha[ve] demonstrated, beyond a reasonable doubt,” that the trial court’s failure to provide the modified instruction to *606the jury “did not contribute to [defendant’s] conviction[ ].” Chapman, supra at 26.

Therefore, I conclude that the jury, in asking for a clarification of the definition of gross negligence, evidenced its confusion regarding the difference between the two arguments and the final instruction. Consequently, I am unable to declare a firm belief that the trial court’s error in providing the jury with the original instruction, despite the fact that defense counsel relied on the modified version in his closing argument, was harmless beyond a reasonable doubt.

The defendant was convicted by a jury of involuntary manslaughter in the death of her four-year-old son and was sentenced to a prison term of seven to fifteen years. The Court of Appeals reversed, *576holding that the defendant was prejudiced by a change in the jury instructions. We would affirm the decision of the Court of Appeals that the defendant was prejudiced by the change in the instructions and is entitled to a new trial.

i

The decedent was adopted when he was nine months old in March, 1986. He died unexpectedly at the age of four. The medical examiner ultimately concluded that he died from dehydration. This dehydration could not be explained, however, by any underlying, ongoing, or apparent disease process. Child abuse was suspected in the death because of ligature marks and bruises observed on his body.1

The decedent suffered from excessive and overwhelming thirst that seemed to have no discovered medical basis. He was described as a compulsive drinker and would go as far as drinking from toilets. He also suffered from frequent urination and began wetting the bed around two years of age. On the advice of her doctor, the defendant restricted the child’s liquid intake several hours before bedtime, starting at 7:00 P.M. She asked the teachers not to let him drink more water than the other children at school. She also restricted his intake during the hours that he was in her care.

In March 1989, defendant found the child having a seizure in his room. She told the physician that he drank over a gallon of water earlier that day. Testing *577revealed unusually high salt levels that were inconsistent with drinking so much water. The cause of this high salt level remains unknown.2 Defendant took the child to the family physician, who sent him to the hospital for follow-up tests. The results of these tests were not reported to the defendant.

The prosecutor presented the defendant as a mother who became obsessed with her son’s bed-wetting to the point that she withheld liquids, causing him to be fatally dehydrated. Testimony revealed that defendant disciplined her children with a belt and that she would keep the child tied in bed with a cloth belt or nylon stockings to keep him from getting up at night. When he was brought into the hospital, nylon stockings were found under his body on the stretcher. The defense, on the other hand, argued that this was a frustrating and difficult child who had many medical problems that were inadequately addressed by the medical community. The Kent County medical examiner who performed the autopsy concluded that the child died because water was withheld from him.

The defendant was charged with involuntary manslaughter. The statute for that offense only defines the penalty;3 the elements of involuntary manslaughter are defined by common law:

*578“Involuntary manslaughter is the killing of another without malice and unintentionally, but in doing some unlawful act not amounting to a felony nor naturally tending to cause death or great bodily harm, or in negligently doing some act lawful in itself, or by the negligent omission to perform a legal duty.” [People v Ryczek, 224 Mich 106, 110; 194 NW 609 (1923) (citation omitted).]

The kind of negligence required for manslaughter is something more than ordinary or simple negligence, however, and is often described as “criminal negligence” or “gross negligence,” People v Townes, 391 Mich 578, 590, n 4; 218 NW2d 136 (1974), “wilfulness, or of wantonness and recklessness.” People v Orr, 243 Mich 300, 307; 220 NW 777 (1928).

For a defendant’s behavior to be considered grossly negligent, three elements must be satisfied.4 These elements are émbodied in CJI2d 16.18 that expressed the people’s theory of the defendant’s guilt. The instruction states:

(1) Gross negligence means more than carelessness. It means willfully disregarding the results to others that might follow from an act or failure to act. In order to find that the defendant was grossly negligent, you must find each of the following three things beyond a reasonable doubt:

*579(2) First, that the defendant knew of the danger to another, that is, he knew there was a situation that required him to take ordinary care to avoid injuring another.

(3) Second, that the defendant could have avoided injuring another by using ordinary care.

(4) Third, that the defendant failed to use ordinary care to prevent injuring another when, to a reasonable person, it must have been apparent that the result was likely to be serious injury.

Before closing arguments, the parties and the court agreed to this instruction.

At the end of closing argument, and in reliance on CJI2d 16.18, the prosecutor noted that the people did not have to prove that the defendant "intended that the child should die, but instead that her grossly negligent behavior of withholding fluids resulted in his death. The prosecutor stated:

You are going to get an instruction on what gross negligence is. You are going to hear that it is you knew of the danger, there was a danger to another — that is, she knew that there was a situation that required him to take — that required her to take ordinary care to avoid injuring another, that she could have avoided the injury by using ordinary care — giving the child water- — and that she failed to use ■ ordinary care to prevent injuring another when to a reasonable person it must have been apparent that the result was likely to cause serious injury.

The prosecutor summed up the evidence that pointed to defendant’s knowledge that restricting fluids was imprudent and harmful to the point that it could cause death and did so in this instance.

After the prosecutor’s closing argument, defense counsel requested a change in the jury instruction on *580gross negligence.5 Defense counsel wanted the phrase “cause death” to replace cause “serious injury,” in CJI2d 16.18(4). This request occurred in a sidebar conference, out of the hearing of the jury, and was not recorded. However, without considering the effect this would have on the proceedings, the prosecutor and the judge agreed to the modification. Defense counsel then proceeded with his closing argument. The defense argued that the decedent was a difficult child, that the defendant was not inattentive to his needs, but was a concerned parent doing her best in a difficult situation, and that it could not possibly have been apparent to her that her actions would result in his death.

Before instructing the jury, defense counsel raised the issue of the changed instruction to confirm the modification. The prosecutor entered an objection to the previously modified instruction, noting that the people did not have to prove that the defendant knew that her actions would cause death under the definition of gross negligence embodied in the manslaughter instructions. Indicating that the modification might be a misstatement of the law and that it also set a higher standard than the law required, the judge changed his mind and decided that the instruction should not be given. Consequently, the judge properly instructed the jury with the standard instruction that was the correct statement of the law.

*581Defense counsel objected because he had relied on the modified instruction in formulating his closing argument. The judge, acknowledging the predicament that had been created, offered the defense the opportunity to reopen the closing argument. Defense counsel declined this invitation, stating that in his opinion the modified instruction was not a misstatement of the law and that to reargue would only accentuate issues that should not be accentuated and create credibility problems with the jury. Further, he noted that he could not prepare a new argument on such short notice.

During deliberations, the jury requested a “[definition of the guidelines to find negligence.” The parties and the court determined that this was a request for clarification of the definition of gross negligence and agreed to a rereading of CJI2d 16.18, the legal instruction on gross negligence. Eventually, the jury returned a verdict of guilty.

Defense counsel moved for a new trial, arguing that his client’s right to a fair trial was irreversibly prejudiced when the judge changed the content of the instruction after defense counsel relied on the previous modification. This motion was denied. At no time did the parties or the court raise the possibility of declaring a mistrial.6

*582The defendant appealed her conviction in the Court of Appeals,7 arguing that the modification of the jury instruction and defense counsel’s reliance on the modification, and the judge’s decision to give the unmodified instruction, was sufficiently prejudicial to require reversal. The Court of Appeals agreed. It found that the difference between the two instructions was critical. The Court could not find that this was a case in which the error was so minor as to be harmless or that this was error that could be cured easily by reargument. Reargument would only be appropriate if it would not prejudice the defendant. The Court noted, “Clearly, there is a substantial difference between having to prove that a reasonable person would know that the conduct would likely cause death and proving that a reasonable person would know that his conduct would likely cause serious injury.” Unpublished opinion per curiam, issued June 23, 1995 (Docket No. 144551), slip op at 2. The Court agreed with the defendant that reargument was not a reasonable resolution in this case for the same reasons argued to the judge at the trial.

[W]e do not believe that it would be a reasonable resolution of the matter to allow closing arguments to be reopened. As defendant pointed out, that would only have accentuated the issue, and it would be difficult, if not *583impossible, to credibly put together a new closing argument designed around a definition involving serious injury after having already argued to the jury on the basis of a definition involving death. Finally, it should not be overlooked that the first instruction had been agreed to by the prosecutor. [Id.]

The Court of Appeals held that the defendant was prejudiced by the change in instruction and therefore entitled to a new trial. Id., citing United States v White, 27 F3d 1531, 1538 (CA 11, 1994).

II

A court must properly instruct the jury so that it may correctly and intelligently decide the case. People v Townes, supra at 586, citing People v Murray, 72 Mich 10; 40 NW 29 (1888). See also Ross v United States, 180 F2d 160 (CA 6, 1950). The pertinent rule in criminal trials is MCR 6.414(F), which provides:

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 with the parties’ consent, 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)[8]

*584The reason for this is obvious. Clarity in instructions and understanding by counsel of the exact nature of the charge is critical, because counsel shape their arguments to conform to the law as defined by the instructions. As the United States Supreme Court stated in Herring v New York, 422 US 853, 862; 95 S Ct 2550; 45 L Ed 2d 593 (1975):

It can hardly be questioned that closing argument serves to sharpen and clarify the issues for resolution by the trier of fact in a criminal case. For it is only after all the evidence is in that counsel for the parties are in a position to present their respective versions of the case as a whole. Only then can they argue the inferences to be drawn from all the testimony, and point out the weaknesses of their adversaries’ positions. And for the defense, closing argument is the last clear chance to persuade the trier of fact that there may be reasonable doubt of the defendant’s guilt.

In People v Patskan, 387 Mich 701; 199 NW2d 458 (1972), this Court addressed a similar issue. The parties requested instructions on both the crimes of attempted armed robbery and attempted assault with intent to commit armed robbery. The judge decided he would only give an instruction on attempted assault with intent to commit armed robbery.9 The *585defense, therefore, made its closing argument in reliance on the giving of this instruction. The judge, however, did not give either instruction, and both parties properly objected. Id. at 706-707. This Court held that the judge violated GCR 1963, 516.110 when he failed to give the instruction. The lead opinion stated:

As the people point out, defendant’s basic defense was that he was not a participant in the crime. However, this does not lessen the prejudice to him where the court has agreed to give a specific charge and then fails to do so. His counsel forcefully argued that if any crime was committed it was attempted assault with intent to rob being armed. The failure of the trial judge to give the instruction after indicating he would do so, was fundamentally unfair, violated GCR 1963, 516.1 and, also, defendant’s right to due process of law. Therefore, the conviction must be reversed and a new trial held. [Patskan at 710 (emphasis added).]

Although the reasoning in Patskan did not command a majority, we find it persuasive and instructive here.11

*586The Court of Appeals relied on Patskan in People v Swejkowski, 90 Mich App 366; 282 NW2d 5 (1979). The trial judge failed to give an instruction regarding circumstantial evidence. This instruction had been submitted to the court with other requests, and the judge said that all of the instructions would be given to the jury. The judge failed to give the instruction on circumstantial evidence despite defense counsel’s objection. The prosecutor argued that the instructions given were sufficient. The judge reasoned that the omitted instruction was unnecessary because there was enough direct evidence to establish the defendant’s guilt. The Court of Appeals disagreed. It noted:

“The court is required to inform counsel of its proposed action on the requests prior to their arguments to the jury. The obvious purpose of this provision is to enable counsel to know which requests will be granted or denied, in order to argue the facts in light of the law as the court will charge the jury.” [Id. at 370, quoting 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), comments, p 565 (citation omitted).]

Citing Patskan, the Court held that if the judge previously agreed to give a certain instruction and counsel relied on this in closing argument, then failure to give the instruction was error requiring reversal. Id. at 371.

In People v Paxton, 47 Mich App 144; 209 NW2d 251 (1973), the Court of Appeals reversed a conviction and ordered a new trial in a case in which the jury was incorrectly charged regarding the elements of self-defense. The trial court failed to inform the jury that one need not retreat from one’s own home in order to establish self-defense. The Court stated that the “trial court was in error in allowing the *587defendant to proceed on the wrong theory,” and that this error required reversal. Id. at 149. Although not directly on point, Paxton is helpful. In the instant case, the problem was not an incorrect instruction to the jury, but an instruction that did not support the theory argued by the defense. In Paxton, the jury operated under the assumption that the defendant had to retreat from a threat in her own home. In the instant case, defense counsel argued that the defendant should be acquitted because she did not know her actions would result in death. In each case, there was reliance on a mischaracterization of a critical issue that directly affected the theories argued by defense counsel that resulted in prejudice to the defense. We think the reasoning in Paxton is persuasive and supports granting a new trial.

Our cases, as well as federal authority, indicate that where the trial court errs in misleading or misinforming counsel regarding the ultimate instructions that will be given to the jury and prejudice results, a new trial is required.12 We note, however, that not every instance of this type of instructional error will require reversal.13 “Simply stated, and employed in both federal rule and case law and state statute and court rule, reversal is required only if the error was prejudi*588cial. That inquiry focuses on the nature of the error and assesses its effect in light of the weight and strength of the untainted evidence.” People v Mateo, 453 Mich 203, 215; 551 NW2d 891 (1996), citing People v Peterson, 450 Mich 349, 377-378; 537 NW2d 857 (1995). Prejudice is determined by the affect of the error on substantial rights or its effect on the verdict. Mateo at 219.14

*589III

A change in jnry instructions at the eleventh hour, as occurred here, should be made only with extreme caution. In this case, defense counsel was inadvertently misled by the court and argued the wrong theory to the jury. Consequently, his ábility to represent his client was impaired, with the result that the client’s right to a fair hearing was prejudiced. The rule that counsel be informed of the instructions to be given to the jury before closing arguments enables counsel to tailor arguments to the proper legal standards. If the instruction is changed after an attorney relies on it, it impairs not only the content and quality of the final argument, but the effectiveness of the representation as well.

In this case, the prosecutor does not disagree, but claims that the defendant did not suffer any prejudice because the difference between the two theories is not significant and that consequently the outcome *590would have been the same. The prosecutor further argues that the defense attorney should not gain an advantage after deliberately injecting error into the proceedings and then refusing to correct the error by rearguing when he was given the opportunity to do so.

We disagree. The error here is not a minor one. The instruction relied on by defense counsel required that the defendant know her actions would cause death. The defense’s closing argument was tailored to refute that the state had proven this requisite knowledge beyond a reasonable doubt. Conversely, the instruction actually given required that the defendant know that her actions would result in serious injury. The gap between these two standards is far from insignificant. The difference between the levels of proof required to meet the reasonable doubt standard under either theory is also far from insignificant. Further, the jury asked for a reclarification of the definition of gross negligence; thus, it is apparent that the jury was confused by the difference between the two arguments and the final instructions.

In the instant case, the prejudice requiring reversal was incurred when the judge, after agreeing to a modified instruction, subsequently decided to charge the jury with the unmodified instruction after defense counsel relied on and conformed his closing arguments to the modified instruction. Defense counsel tailored his closing argument to be consistent with the theory that the defendant could not possibly have known that withholding water from the child would lead to his death.15 This is a far greater threshold of *591knowledge for the prosecutor to prove than proving merely that the defendant knew her actions would cause serious injury, which was the theory argued by the prosecutor.

We find it impossible to conclude that the last minute change in the instructions did not affect the verdict. Under the higher standard argued by defense counsel, the defendant might have been acquitted. We agree with the Court of Appeals that reargument would be inappropriate. This would have accentuated the issue and impaired defense counsel’s credibility with the jury. Because this error affected the jury’s result, it is prejudicial error requiring reversal because it affirmatively calls into question the validity of the jury’s decision. Mateo, supra-, see also People v Grant, 445 Mich 535; 520 NW2d 123 (1994).

IV

Under no circumstances do we conclude, advocate, or imply that a trial judge has a duty to instruct the jury incorrectly, nor do we say that the judge erred by refusing to give the erroneous instruction.

The prejudice to the defendant in this case was incurred by virtue of defense counsel’s argument in reliance on one instruction and the judge’s subsequent decision to instruct the jury on a different one. This misled defense counsel in formulating his closing *592argument.16 The attorneys and the court complied with the rule up to the time that defense counsel requested the modification. The violation or lack of compliance with the rule is not as much the fact that the requests were not written, as it was that the proposed modification was requested between the two closing arguments, and neither the prosecutor nor the judge had ample opportunity to consider its full import before either closing argument. We note again that the prosecutor and the judge initially agreed with the modification.

The dissent argues that the modification was inappropriate from the outset because it did not satisfy the requirements of MCR 6.414(F). The modification was not written nor was it served on the prosecutor. We agree with the dissent that the proposed modification was untimely and improvidently agreed to by the parties and should have been denied on the spot or, alternatively, the judge should have granted a recess to allow the parties some time to consider the request. However, neither the dissent’s nor the people’s briefs cite any authority to support the proposition that requests for instructions can only be submitted in writing. The rule states only that the court must give the parties reasonable opportunity to submit written requests before their closing arguments. Oral requests may not be wise, but it does not appear that they are precluded.17

*593The dissent opines that because defense counsel did not comply with the strictures of the court rule, and because the judge subsequently did instruct the jury correctly, there was no error. What the dissent fails to consider, however, is the resulting prejudice to the defendant. The fact that the judge correctly instructed the jury is not the issue. Nor is it the fact that the requested instruction was untimely, unwritten, or incorrect. The issue is the prejudice suffered by the defendant “ ‘when the change in the instructions is substantial, when the judge’s instructions repudiate counsel’s argument, or when the judge’s instructions impair the effectiveness of the attorney’s argument.’ ” United States v White, supra at 1538, quoting United States- v Clark, 732 F2d 1536, 1541-1542 (CA 11, 1984). We maintain that the difference between the incorrect instruction relied upon and the instruction given was substantial. The resulting prejudice could not effectively be cured through reargument. The instruction given eviscerated the defense’s argument and impaired its effectiveness. A mistrial was not requested, and the defense motion for a new trial was denied. Under these circumstances, a new trial is required.18

*594Defense counsel relied on the judge’s agreement to instruct the jury with a modified instruction relating to the definition of gross negligence in his closing argument. The judge’s subsequent decision to instruct the jury with the unmodified instruction, erroneous or not, effectively nullified the defense’s theory as argued to the jury and consequently prejudiced the defense. The jury was concerned about the definition of gross negligence and requested clarification on this element. Because we cannot say with confidence that this did not affect the jury’s final outcome or that, had the court charged the jury with the modified instruction, the defendant would not have been acquitted, we would affirm the decision of the Court of Appeals and would hold that the defendant is entitled to a new trial.

(concurring). I concur with the result and reasoning of the lead opinion, with the exception of the harmless error standard. As I articulated in People v Mateo, 453 Mich 203; 551 NW2d 891 (1996), I believe the standard for preserved nonconstitutional error should be judged under the harmless-beyond-a-reasonable-doubt standard. Under this standard, or any other standard articulated by the lead opinion, I believe the error here was not harmless.

(dissenting). In this case, we look at whether the trial court’s refusal to give an instruction to the jury that misstated the law, but which defense counsel expected to be given, is error requiring reversal. The lead opinion concludes that the judge erred by not giving the erroneous instruction because the defendant was prejudiced. The position of the lead opinion is based, in part, on the possibility that the defendant might have been acquitted if the erroneous instruction had been given. See ante, p 591. I do not agree that prejudice can be based on the defendant’s missed opportunity to be acquitted under an erroneous standard. Further, the defendant was not prejudiced by the change in juiy instructions because the difference between the instructions did not undermine the defendant’s arguments. Because I conclude that the trial judge was under no duty to give the modified instruction, in that it was an incorrect statement of law and did not satisfy the requirements of MCR 6.414(F), I respectfully dissent.

*607I

In chambers, before either closing argument, the parties agreed to use CJI2d 16.18 for the element of gross negligence. After the prosecution finished its closing argument, however, defense counsel called for a sidebar conference and orally moved to amend the third element of the gross negligence instruction from “likely to be serious injury” to “likely to cause death.” The prosecution and the trial court initially agreed to the change. The defense then presented its closing arguments. Before the trial court instructed the jury, the prosecution objected to the changed instruction, noting that it misstated the standard for gross negligence. The defense objected, stating that it had relied on the changed standard in its closing argument. The court offered to reopen argument. The defense declined, stating that reargument would further accentuate the inconsistency. The court subsequently instructed the jury with the standard jury instruction on gross negligence on which the parties originally had agreed. The jury returned a guilty verdict.

n

In both civil1 and criminal2 trials, the Michigan Court Rules require that all requests for jury instructions must be (1) in writing, (2) served on the other party, and (3) brought to the court’s attention before closing arguments. MCR 6.414(F) states:

Before closing arguments, the court must give the parties a reasonable opportunity to submit written requests for jury *608instructions. Each parly 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.

The intent of MCR 6.414 is apparent: both parties, should have sufficient notice of how the court will instruct the jury so that they can frame their arguments appropriately. By requiring that requests be submitted in writing, both parties and the trial court will have time to reflect on the proposed instructions. Had defense counsel complied with MCR 6.414(F), it is doubtful that this case would be before us today.

Defense counsel’s proposed modification did not satisfy any of the requirements of MCR 6.414(F). The proposed modification was not written.3 It was brought to the court’s attention at sidebar, outside of the hearing of the jury, and was not recorded. Written copies were not served on the prosecutor. The prosecutor first learned of defense counsel’s proposed departure from the standard jury instructions after her closing argument. The request was brought after the prosecution had made her closing argument. Thus, the prosecutor was unable to frame her argument to this new standard.

Because defense counsel’s modification of the standard jury instructions was brought too late, and was not in writing, it was an ineffective request. As an ineffective attempt to modify the jury instructions, the judge was under no duty to give the instruction. MCR 6.414(F). By giving effect to the defense coun*609sel’s ill-timed request, the lead opinion disregards the clear dictates of MCR 6.414(F).

III

The court, the prosecutor, and defense counsel cannot agree to change the threshold burden of proof for gross negligence because it is the trial court’s duty to correctly instruct the jury on the law. MCL 768.29; MSA 28.1052; People v Townes, 391 Mich 578; 218 NW2d 136 (1974). The fundamental flaw in the reasoning of the lead opinion is that it fails to distinguish a judge’s refusal to give an instruction on which the parties have agreed that correctly states the law from one that misstates the law. The difference between the two is significant. If a request for a jury instruction is brought pursuant to MCR 6.414(F) and correctly states the law, it is error for a trial judge to refuse to give the instruction after closing arguments if counsel’s reliance on the instruction would be prejudicial. People v Swejkowski, 90 Mich App 366; 282 NW2d 5 (1979). But where the instruction misstates the law, as in People v Patskan, 387 Mich 701; 199 NW2d 458 (1972), the judge is under no similar duty. Although Patskan’s precedential value is limited because of its fractured opinion, it is undisputed that four justices rejected the approach that the lead opinion now recommends.

The erroneous standard that defense counsel used in his closing argument raised the threshold burden of proof for gross negligence. The dilemma the lead opinion faces is that it would hold that the judge erred by not committing error. This paradox was noted in People v Patskan, supra at 716, relied on by *610the lead opinion, where defense counsel’s closing argument was based on a misstatement of law.

The anomaly in my Brother’s position is that had the instruction been given, and defendant been convicted thereunder, we would have no choice but to reverse the conviction. [T. G. Kavanagh, Williams, JJ., concurring.]

In Patskan, the trial court refused to give an instruction on attempted assault with intent to commit armed robbery on which the parties agreed. Defense counsel argued on appeal that he had relied on that instruction in his closing argument.

As in the present case, defense counsel in Patskan also relied on an erroneous instruction. Before closing arguments, defense counsel requested the trial court to instruct the jury on the offense of attempted assault with intent to commit armed robbery. Michigan, however, does not recognize such a crime. Attempted assault is considered a logical impossibility because it is an “attempt to attempt.” People v Jones, 443 Mich 88, 93; 504 NW2d 158 (1993). During closing arguments, defense counsel urged the jury to find his client not guilty, or, in the alternative, guilty of attempted assault.

Although the defendant in Patskan was granted a new trial by this Court, it is not clear that the failure to instruct the jury on attempted assault was essential to the judgment. The holding was based on two errors. One was the failure to give an instruction on which the parties agreed. The other was the failure of the judge to instruct on the lesser included offense of attempted armed robbery.

*611The Patskan Court produced three opinions, but no clear majority. Only one justice supported the proposition that the lead opinion now proposes. Two other justices, however, disagreed with that conclusion. Writing separately, and joined by Justice Williams, Justice T. G. Kavanagh stated that the judge had no duty to give the instruction because the defense’s proposed instruction misstated the law.

Although defense counsel’s closing argument indicates reliance on the court’s promise to give the instruction he requested, he should not be heard to complain that the court somehow escaped the error he invited. [387 Mich 716-717.]

The lead opinion finds support from Patskan, yet only one — arguably three — justices supported its position. On the other hand, four justices rejected the very same position. Moreover, two of those four addressed the issue before us now in their concurring opinion, stating that a judge is under no duty to give an erroneous instruction, regardless of what he tells defense counsel. Consequently, Patskan does not require this Court to grant a new trial in the present case.

People v Swejkowski, supra, is distinguishable from the present case because the instruction on which the parties relied was a correct statement of the law.

The lead opinion’s reliance on People v Paxton, 47 Mich App 144; 209 NW2d 251 (1973), is also misplaced. In Paxton, a new trial was ordered in a case in which the jury was incorrectly charged regarding the elements of self-defense. The lead opinion argues that Paxton is “helpful” because it demonstrates that it is error when a jury instruction does not support *612the theory relied on by the defense. Instead, the decision in Paxton is based on the principle that it is error for the trial court to misstate the law in the instructions to the jury. Further, the opinion even undermines the position of the lead opinion.

One of the primary functions of the trial judge is to inform the jury correctly of the law applicable in a given case. [Id. at 149.]

Thus, Paxton supports a conclusion opposite that to which the lead opinion proposes: that a primary function of the judge is to correctly instruct the jury. Instead, the lead opinion concludes that the judge erred by not misinstructing the jury.

MCR 6.414 is modeled after and incorporates provisions from Federal Rule of Criminal Procedure 30.4 Federal courts have upheld a rule requiring “substantial compliance” with Rule 30 and have reversed convictions where the defendant establishes prejudice. United States v Clark, 732 F2d 1536 (CA 11, 1984). Federal courts have rejected, however, the proposition that a defendant has a right to an incorrect jury instruction merely because defense counsel argues an inappropriate standard. In upholding a change of a jury instruction that properly informed the jury of the *613charge, United States v Pena, 897 F2d 1075, 1085 (CA 11, 1990) stated:

We do not believe that the requirements of Rule 30 function as a limitation on the district court’s obligation to inform the jury of the law which properly governs a case. Nor do we believe that the limitations contained in Rule 30 operate to empower counsel, through the mechanics of the Closing argument, either to dictate the law by which a verdict is reached or to create a mistrial by erroneously stating the legal principles applicable to a given situation.

The same principle is applicable in the case before us.

IV

The lead opinion erroneously believes that the defendant was prejudiced because it focuses on the difference between the two jury instructions, instead of the effect of that difference on the jury’s verdict. An inquiry into prejudice “focuses on the nature of the error and assesses its effect in light of the weight and strength of the untainted evidence.” People v Mateo, 453 Mich 203, 215; 551 NW2d 891 (1996). Therefore, if we are going to find prejudice, there must be some evidence that the alleged error affected the outcome.

In the beginning of the defense’s closing argument, counsel argued that the defendant had acted reasonably under the circumstances. He claimed that, despite difficult circumstances, the defendant had acted responsibly, and in a manner that other reasonable people might have also. Further, because there were no physical signs of distress, the defendant was said to have had no reason to conclude that depriving her son of water would cause him to be dehydrated.

*614And I say to you if medical people, who are trained to figure these things out, cannot tell us, how can a reasonable layperson like Bertha Clark or you know what to do?

* * *

And so it’s reasonable for her to conclude, and I think any reasonable person to conclude, that you have the right, should reduce water intake, particularly at night.

Notably, defense counsel was not relying on the difference between the standard of death and serious injury. Instead, defense counsel presented the defendant as a person who had acted reasonably. If the jury had accepted this claim, it could have returned a verdict of not guilty under either jury instruction. Therefore, with regard to this argument, the difference between the two instructions was irrelevant.

The defense also advanced the theory that Rodney did not die of dehydration. Defense counsel emphasized the inconsistencies in the testimony of the doctors who either treated Rodney or performed his autopsy. In addition to alluding to the possibility that Rodney had died of a seizure, defense counsel also argued that Rodney had died, not of dehydration, but of diabetes insipidus. Because these arguments presented a different theory of the cause of Rodney’s death, the jury could have acquitted the defendant regardless of whether the defendant was negligent. Accordingly, the effect of the change in instructions was negligible, with regard to this argument because it advanced a different theory.

Finally, defense counsel attempted to shift the blame for Rodney’s death.

*615The medical personnel in this case blew it. Dr. Ponstein didn’t handle it correctly. The Department of Social Services did not act in a prudent manner. The schools slipped somewhat, and all of — and even the prosecutor’s office fumbled the ball. And now they are all coming together, and although they are culpable and we can point to it, they say: Don’t think about that. We didn’t know what was happening there. Bertha Clark should have, and it is all her fault. The facts don’t support that. She acted as best she could and it surely wasn’t in a grossly negligent manner.

Like each of the preceding arguments, this argument did not rely on the difference between the two instructions. If the jury had chosen to place the blame for Rodney’s death on his teachers, doctors, or social workers, it could have acquitted the defendant regardless of whether the court gave the original or the modified instruction.

Thus, the defendant was not prejudiced by the use of the original, correct instruction. Defense counsel’s closing argument had four themes: the defendant acted reasonably; Rodney did not die of dehydration; Rodney’s death was caused by a seizure or diabetes insipidus; and it was the fault of dss, his teachers, and the doctors who treated him. These arguments did not rely on the distinction between “death” and “serious injury.” Instead, each one attempted to deny negligence, refute the alleged cause of death, or shift the blame.

This case is analogous to United States v White, 27 F3d 1531 (CA 11, 1994). In White, a trial judge similarly refused to give an instruction on which the parties agreed. Defense counsel, as here, referred to the standard during closing argument. After closing argument, the trial court withdrew the instruction after *616discovering that the instruction misstated the law. The trial court did not give the instruction that defense counsel had referred to in closing argument and, in fact, “expressly informed the jury of the deletion when delivering its oral charge.” White, supra at 1537. On appeal, the Eleventh Circuit held that the defendant had not been prejudiced. The defendant’s argument was based on a defense of good faith, noted the court, which was not affected by the withdrawal of the instruction.

The fact that the Medicare program never authorized payment for diagnostic tests ordered or furnished by a chiropractor did not preclude the jury from finding that the Whites had a good faith belief to the contrary. By its verdict, however, the jury rejected the Whites’ claim that they had acted on the basis of such a belief. [Id. at 1539.]

In the present case, the jury likewise rejected the defendant’s claims that she had acted reasonably, that Rodney had died of a cause other than dehydration, and that others were to blame for his death. The jury was not precluded from acquitting the defendant as a result of the change in the jury instruction.

If defense counsel’s closing argument had hinged on the difference between the two instructions, the defendant might have been prejudiced by the use of the original instruction. For example, her attorney might have argued that the defendant may have known that depriving Rodney of water might seriously injure him, but never would have thought that death could result. In that case, the distinction would be important. Once the judge changed the instruction *617from “death” to “serious injury,” the defendant’s argument would have been “eviscerated,” as the lead opinion contends happened here. Nothing would have remained for the jury to acquit the defendant.

Instead, defense counsel’s closing argument was based on a theory that the defendant acted reasonably, that Rodney died of causes other than dehydration, and that others were to blame for his death. Because defense counsel’s closing argument did not rely on the difference between the two instructions, I would find no prejudice. Had the jury believed any of defendant’s arguments, it could have acquitted the defendant, despite the change in instructions. By its verdict, the jury rejected all the defendant’s claims, none of which relied on the difference between the two instructions.

The lead opinion states that the trial court erred when,

after agreeing to a modified instruction, [it] subsequently decided to charge the jury with the unmodified instruction after defense counsel relied on and conformed his closing arguments to the modified instruction. [Ante, p 590.]

I cannot agree that the trial judge’s decision to correctly instruct the jury, regardless of what he promised defense counsel, constituted error. Any “duty” that the trial court owed to defense counsel to honor its ill-timed request for a change from the standard jury instructions, previously agreed to in chambers, was superseded by the court’s responsibility to correctly instruct the jury. Further, the defendant was not prejudiced by the change in jury instructions *618because the difference between the two instructions did not undermine her arguments.

This Court should vacate the decision of the Court of Appeals and reinstate the verdict of the trial court.