SERIES 100 PRETRIAL INSTRUCTIONS
F 100.1 MISCELLANEOUS
TABLE OF CONTENTS
F 100.1 Inst 1 (a-d) Defense Has No Obligation To Prove Anything
F 100.1 Inst 2 Jurors Must Follow All Instructions Given Before, During and At End of Trial
F 100.1 Inst 3 Evidence Not Limited To Testimony And Exhibits
F 100.1 Inst 4 Definition Of Instruction
F 100.1 Inst 5 Jurors Need Only Follow Instructions Which They Find Applicable To The Case
Return to Series 100 Table of Contents.
F 100.1 Inst 1 (a-d) Defense Has No Obligation To Prove Anything
Alternative a: Modify CC 100, paragraph 3, sentence 4, as follows [added language is underlined]:
Because (he/she/they) (is/are) presumed innocent, the defendant[s] (does/do) not have to prove that (he/she/they) (is/are) not guilty or anything else.
Alternative b: Modify CC 100, paragraph 3, sentence 4, as follows [added language is underlined; deleted language is stricken]:
Because (he/she/they) (is/are) presumed innocent, the defendant[s] (does/do) not have to prove that (he/she/they) (is/are) not guilty anything.
Alternative c: Replace paragraph 3, sentence 4, with the following:
The defendant is presumed innocent by the law, and the presumption of innocence is always there. The defendant need not prove anything.
[Source: United States v. Crayton (6th Cir. 2004) 357 F3d 560, 567-568.]
Alternative d: Add after paragraph 3, sentence 4:
The presumption of innocence alone, therefore, is sufficient to acquit the defendant.
[Source: Given in United States v. Howe UNPUBLISHED (10th Cir. 2002) 42 Fed. Appx. 116, 119; see also Taylor v. Kentucky (78) 436 US 478 [56 LEd2d 468; 98 SCt 1930].]
Points and Authorities
The CALCRIM Defect – CALCRIM 100 is technically correct as far as it goes. However, it only discusses the presumption of innocence in the context of the ultimate question of whether or not the defendant is guilty. Thus, the instruction fails to assure the jurors will understand that except for affirmative defenses (see e.g., People v. Lam (2004) 122 CA4th 1297, 1301) and preliminary facts (see EC 403) the defendant has no burden to present evidence or prove anything at trial. (See FORECITE PG III(D); see also In re Winship (1970) 397 US 358, 363 [90 SCt 1068; 25 LEd2d 368]; People v. Hill (1998) 17 C4th 800, 831; People v. Woods (2006) 146 CA4th 106, 112-13; United States v. Blankenship (11th Cir. 2004) 382 F3d 1110, 1127.) [See also FORECITE PG III(D); PG VII(C)(8).] Nor is this defect insignificant simply because CALCRIM 100 is merely a general preliminary instruction. None of the remaining CALCRIM instructions cure the defect.
First, no other CALCRIM instruction specifically informs the jurors that the defendant has no burden of proving specific issues at trial.
Second, CALCRIM 103, which specifically defines the presumption of innocence, does so only in the context of the prosecution’s burden to prove all elements of the charge. It does not discuss how the presumption relates to other essential factual issues. This suggests by implication that the presumption of innocence does not apply to essential facts which are not elements of the charge. (See FORECITE F PG X(D)(5).)
Third, many of the more specific CALCRIM instructions actually suggest that the defendant may have some burden of production or proof. (See e.g., FORECITE F 103.3 Inst 2; F 104.1 Inst 1; F 100.7 Inst 1.)
In sum, when considered in light of all the instructions, as the jurors are required to do (see CALCRIM 200, paragraph 5), CALCRIM 100 improperly permits the jurors to conclude that the defendant must prove or disprove certain specific issues and facts at trial.
Presumption Of Innocence: No Duty To Prove Or Disprove Anything—With the exception of certain affirmative defenses, (see United States v. Gray (11th Cir. 2001) 260 F3d 1267, 1278 [“Congress is entitled to shift the burden of proof to the defendant for an affirmative defense”]), a defendant is never obligated to prove anything to a jury, and a jury is entitled to believe a defendant’s claims regardless of whether he offers proof to substantiate them. (United States v. Blankenship, 382 F3d at 1127; see also United States v. Crayton (6th Cir. 2004) 357 F3d 560, 567-568 [“the defendant need not prove anything …” ]; Mahorney v. Wallman (10th Cir. 1990) 917 F2d 469, 472 [presumption of innocence is constitutionally rooted]; see also CALJIC 2.60; 9th Circuit Model Jury Instructions—Criminal (2000) 1.2.)
Hence, there need not be any “affirmative evidence demonstrating a reasonable doubt …” (People v. Hill (1998) 17 C4th 800, 831.) “[T]he jury may simply not be persuaded by the prosecution’s evidence.” (Ibid.)
Presumption Of Innocence Alone Sufficient To Acquit—United States v. Hollister (8th Cir. 1984) 746 F2d 420, 424 held the following instruction to be preferable over one which mentioned the presumption of innocence only once:
The law presumes a defendant to be innocent of crime. Thus a defendant, although accused, begins the trial with a “clean slate” —with no evidence against him. And the law permits nothing but legal evidence presented before the jury to be considered in support of any charge against the accused. So the presumption of innocence alone is sufficient to acquit a defendant, unless the jurors are satisfied beyond a reasonable doubt of the defendant’s guilt after careful and impartial consideration of all the evidence in the case.
(See also Taylor v. Kentucky (1978) 436 US 478, 481 [56 LEd2d 468; 98 SCt 1930] [ presumption of innocence alone is sufficient to acquit a defendant].)
No Duty To Prove Or Disprove Facts Underlying Defense Theory Negating Element Of The Charge—The presumption of innocence also applies to defense theories. (See FORECITE CG 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge].)
No Duty To “Create: A Reasonable Doubt” —In light of the above it is improper to imply that the defendant must “create” or “raise” a reasonable doubt. (See FORECITE F 350 Inst 2.)
Conflicting Or Contradictory Instructions—Language that merely contradicts an erroneous instruction does not cure the defect in the erroneous instruction. (See Francis v. Franklin (1985) 471 US 307, 322 [85 LEd2d 344; 105 SCt 1965]; People v. Noble (2002) 100 CA4th 184, 191 [contradictory instructions on burden of proof in MDO proceeding made it impossible to determine whether the jury reached its verdict using the correct burden]; People v. Elguera (1992) 8 CA4th 1214, 1219 [failure to repeat burden of proof instruction given during voir dire was prejudicial]; People v. Valenzuela (1977) 76 CA3d 218, 222.)
See also FORECITE PG X(E)(8), (8.1), and (8.2).
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case.
Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.4 [Instructions Which Improperly Shift Burden Of Proof]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 100.1 Inst 2 Jurors Must Follow All Instructions Given Before, During And At End of Trial
*Add at end of CC 100:
It is your duty to follow all instructions which I give, whether before, during or at the end of trial.
However, if there is a specific conflict between the final instructions and earlier ones you should follow the final ones.
Points and Authorities
CALCRIM 100, paragraph 4, states that the judge will instruct the jury on “the law that applies to the case” after all the evidence has been presented. This erroneously implies that pretrial and midtrial instructions do not apply to the case. Instructions given before or during trial should also be considered with the final instructions. (See e.g., People v. Chung (1997) 57 CA4th 755, 758-59 [jurors assumed to have relied on preliminary instructions not repeated at the end of trial]; see also generally PC 1093(f); People v. Lamb (1988) 206 CA3d 397, 400.)
For example, cautionary and limiting instructions are normally more effective if given midtrial concurrently with, or in anticipation of, the prejudicial matter. “In recognition of the shortcomings of instructions at the tail end of trial, certain matters are held to trigger the need for an immediate cautionary instruction, e.g., cautioning the jury to consider a prior conviction for impeachment use only, to disregard testimony to which an objection has been sustained, to consider evidence of other crimes only for the distinct purpose for which it was admitted, how to evaluate evidence of prior consistent and inconsistent statements, propriety of expression of opinion by expert and proper consideration of such opinion, photographs or mug shots of defendants. [Citation.]” (BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) §131.101[1][b].)
“The judge should also consider giving instructions at any point in the trial where they might be helpful to the jury; an explanation of applicable legal principles may be more helpful when given at the time the issue arises than if deferred until the close of trial.” (Herr, Annotated Manual for Complex Litigation (West, 3rd ed, 1999) §22.433, p. 162.)
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case.
Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 7.2 [Jury‘s Duty To Fully And Fairly Apply The Law]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 100.1 Inst 3 Evidence Not Limited To Testimony And Exhibits
*Add at end of CC 100, paragraph 3, sentence 2:
Evidence may also include matters such as out-of-court statements and stipulations.
Points and Authorities
CALCRIM 100 fails to include stipulations and out-of-court statements in describing “evidence.” (Compare CC 222, para 6 [Jurors must accept stipulations as true].)
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case.
Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 7.1 [Right To Jury Consideration Of The Evidence]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
PRACTICE NOTE: Consideration should also be given to instructing the jurors regarding non-testimonial matters which they might observe in the courtroom such as the conduct of judge, attorneys, defendants and spectators. (See FORECITE F 104.1 Inst 6.)
F 100.1 Inst 4 Definition Of Instruction
*Add to CC 100 as follows:
However, you are also required to follow any oral admonitions I have given at any point before, during or after trial even if they are not mentioned in the written instructions.
Points and Authorities
The CALCRIM instructions do not tell the jurors what a jury ” instruction” is. It has been a common experience among trial lawyers that, even after a trial, jurors are not certain as to what a jury instruction is.
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case.
Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 7.2 [Jury‘s Duty To Fully And Fairly Apply The Law]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 100.1 Inst 5 Jurors Need Only Follow Instructions Which They Find Applicable To The Case
*Modify CC 100, paragraph 4 [added language is underlined; deleted language is stricken]:
… I will instruct you on the law that applies to the case. You must follow all of my instructions, which you find applicable to the facts, even if you disagree with them. You must ignore any instructions which you find inapplicable to the facts.
Points and Authorities
CALCRIM 100, paragraph 4, improperly informs the jurors that the judge will instruct them on the law that “applies to the case.” This is an improper comment on the evidence which invades the province of the jury. It is the jurors who must determine whether or not an instruction applies to the case based on their evaluation of the evidence. “A fundamental premise of our criminal trial system is that ‘the jury is the lie detector.’ [Citation.] Determining the weight and credibility of witness testimony, therefore, has long been held to be the ‘part of every case [that] belongs to the jury, who are presumed to be fitted for it by their natural intelligence and their practical knowledge of men and the ways of men.’ [Citation.]” (U.S. v. Scheffer (1998) 523 US 303, 313 [118 SCt 1261; 140 LEd2d 413].) “Implicit in the right to trial by jury afforded criminal defendants under the Sixth Amendment to the Constitution of the United States is the right to have that jury decide all relevant issues of fact and to weigh the credibility of witnesses.” (U.S. v. Hayward (DC Cir. 1969) 420 F2d 142, 144; see also U.S. v. Gaudin (1995) 515 US 506, 511 [115 SCt 2309; 132 LEd2d 444]; Davis v. Alaska (1974) 415 US 308, 318 [94 SCt 1105; 39 LEd2d 347]; Bollenbach v. U.S. (1946) 326 US 607, 614 [66 SCt 402; 90 LEd 350] [” … the question is not whether guilt may be spelt out of a record, but whether guilt has been found by a jury according to the procedure and standards appropriate for criminal trials …” ]; United States v. Geston (9th Cir. 2002) 299 F3d 1130 [prosecutor’s repeated questions to defense witnesses, asking whether, if a government witness had testified to a specific fact, that witness would be lying, impacted defendant’s due process rights]; United States v. Rockwell (3rd Cir. 1986) 781 F2d 985, 991 [instructions which “improperly invaded the province of the jury to determine the facts and assess the credibility of witnesses … [were] sufficiently misleading to deprive Rockwell of a fair trial” ]; Snowden v. Singletary (11th Cir. 1998) 135 F3d 732, 738 [allowing expert testimony that 99% of child sexual abuse victims tell the truth usurped the jury’s fact-finding role and made the trial fundamentally unfair].)
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case.
Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
FORECITE CG 5.4 [Argumentative, Improper Comment, Undue Emphasis Of Evidence]
FORECITE CG 7.2 [Jury’s Duty To Fully And Fairly Apply The Law]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.