Return to CALJIC Part 1-2 – Contents
F 1.00 n1 Partial Omission Of Introductory Instruction Does Not Violate Due Process.
People v. Hawthorne (92) 4 C4th 43, 72-73 [14 CR2d 133].
F 1.00 n2 Admonition Against Consumption Of Alcohol.
In People v. Cox (91) 53 C3d 618, 695-96 [280 CR 692], the California Supreme Court gave a mixed message regarding the issue of consumption of alcohol by jurors either during the evidentiary stage or deliberation stage of trial. On the one hand, the court found no juror misconduct for the consumption of alcohol at lunch during the trial because the defendant failed to allege any impairment of the jurors’ abilities during trial or deliberations. (See also People v. Hedgecock (90) 51 C3d 395, 420 [272 CR 803] [jurors have no duty to abstain from use of alcoholic beverages when they are not deliberating unless the alcohol renders the juror unable to competently perform his or her duties].)
On the other hand, the court after noting its “particular concern to preserve the reliability of death penalty verdicts” reiterated the following admonition on the subject: “The consumption of alcoholic beverages by jurors, whether during the presentation of evidence or during deliberation, is clearly to be discouraged. The defendant as well as the People have a right to the reasoned, dispassionate and considered judgment of the jury. Because the consumption of alcoholic beverages may impair one’s ability to perceive and judge, use of such intoxicants by jurors threatens both the fairness of the trial and the integrity of the entire judicial process. [Citation].” (Cox 53 C3d at 695-96.)
Accordingly, Cox provides the basis for an admonition about the consumption of alcohol which would advise the jurors that they should not consume alcohol if it impairs their ability to perceive and judge.
F 1.00 n3 Written Instructions To The Jury.
CALJIC cites People v. Cooley (93) 14 CA4th 1394, 1399 [18 CR2d 346] and People v. Blakley (92) 6 CA4th 1019 [8 CR2d 219] for the proposition that the right of the jury to receive a copy of the written instructions is statutory, not constitutional. However, if the jury has indicated confusion or misunderstanding regarding the instructions or requests a re-reading of the instructions, the defendant’s federal constitutional rights to trial by jury and due process (6th and 14th Amendments) may be implicated by the failure to provide the jury with written copies of the jury instructions. (See Blakley 6 CA4th at 1024; see also FORECITE PG V(G).)
In capital cases, the court should provide a written copy of the jury instructions to the jury, especially where the jury expresses an inability to understand the instructions. (See People v. Seaton (2001) 26 C4th 598, 673-674 [110 CR2d 441].)
RESEARCH NOTE: See “Enhancing A Jury’s ‘Hang-Ability'” by Tiffany A. Denhardt, FORUM, July 1998.
F 1.00 n4 Duties Of Judge/Jury: Jury Nullification.
The trial court is not required to advise the jury of its power to nullify a verdict even if it so requests. (See People v. Williams (2001) 25 C4th 441, 457 [106 CR2d 295].) However, it is better for the court to re-read CJ 1.00 than to simply respond in the negative to the jury’s inquiry regarding nullification. (People v. Fernandez (94) 26 CA4th 710, 713, fn 2 [31 CR2d 677].)
(See also FORECITE PG X(N).)
F 1.00 n5 Pretrial Instruction Re Jury’s Duty (PC 1122(a)); CRC Rule 2.1035.
PC 1122(a) requires preinstruction of the jury upon its “basic functions, duties and conduct.” (See also People v. Carter (2003) 20 C4th 1166, 1199.) The instruction must include, “among other matters,” admonitions to not converse, to avoid publicity about the case, to not view the scene and to not receive payment for information concerning the trial. (See FORECITE CHK V for examples; see also FORECITE F 1.00c, FORECITE F 1.00d, FORECITE F 1.00e, FORECITE F 1.00f, FORECITE F 1.00g, FORECITE F 1.00h, and FORECITE F-1.03c.)
Effective January 1, 2007 California Rules of Court, Rule 2.1035 was approved by the Judicial Council. This rule states that the judge “may, in his or her discretion, preinstruct the jury concerning the elements of the charges or claims, its duties, its conduct, the order of proceedings, the procedure for submitting written questions for witnesses as set forth in rule 2.1033 if questions are allowed, and the legal principles that will govern the proceeding.”
But see FORECITE PG I(H)(8) [statutes take precedence over Rules of Court].
F 1.00 n6 Preliminary and Introductory Instruction Regarding Juror Note Taking.
(See CJ 0.50 and FORECITE F 0.50a.)
F 1.00 n7 Questions By Jurors: Whether Judge Or Attorney Should State The Question.
It is established, in California, that the jurors should be afforded the opportunity to ask questions of the witnesses subject to the discretion and approval of the trial court. (See FORECITE F 1.00a.) In People v. Majors (98) 18 C4th 385, 407 [75 CR2d 684] the court held that it is proper for the judge to allow the prosecutor to state the questions to the witnesses since the prosecutor called most of the witnesses. (See also People v. Cummings (93) 4 C4th 1233, 1305 [18 CR2d 796] [rejecting a claim that permitting a party to ask the jurors’ questions allowed that party ‘to curry favor with individual jurors'”].)
However, the dissent of Justice Mosk contended that it would be preferable for the trial court to rephrase the question in appropriate form and ask it of the witness. (Majors, 18 C4th at 433.) By allowing counsel to ask the jurors’ question, the court is allowing counsel “to some extent at least, [represent the court].” (People v. McAlister (85) 167 CA3d 633, 644 [213 CR 271]; see also State v. Graves (95) 907 P2d 963, 967 [274 Mont. 264]; see also U.S. v. Brown (9th Cir. 1987) 832 F2d 128, 130.) Hence, by allowing the prosecutor to “represent the court” in asking the jurors’ question, the prosecution is given an unfair advantage which may abridge the defendant’s federal constitutional rights to due process and a fair trial by jury. (Fifth and Sixth Amendments; see Wardius v. Oregon (73) 412 US 470, 473-74 [37 LEd2d 82; 93 SCt 2208].)
See also California Rules of Court, Rule 2.1033. But see FORECITE F 106 Note 2.
F 1.00n8 Improper To Refer To The Prosecution as “The People.”
Reference to the prosecution as “The People” may implicate the defendant’s state and federal constitutional rights to due process and fair trial by jury. (See FORECITE F 0.50d.) Any reference to “The People” should be changed to “The Prosecution.”
F 1.00n9 <span”>Error To Instruct Or Imply That Defense Has Any Burden Of “Going Forward” With Evidence.
See FORECITE PG III(D).
F 1.00n10 Defendant Need Not Produce Affirmative Evidence To Satisfy Evidentiary Burden For Instruction.
See FORECITE PG X(A)(1.3.2).
F 1.00n11 <span”>Failure To Admonish Jury At Recess.
<span”>PC 1122(b) requires the court, at each adjournment, to admonish the jury not to converse among themselves or anyone else on any subject connected with the trial. However, the failure to do so may not be raised on appeal without an objection below. People v. Ramos (11/29/2004, S030956) 2004 Cal. LEXIS 11332, *71.)
F 1.00n12 Questions By Jurors: Additional Safeguards Not Referred To In Rule 2.1033
See F 106 Note 2.
F 1.00a Respective Duties Of Judge And Jury: Questions By Jurors
*To be added at end of CJ 1.00:
However, this admonition does not preclude you from proposing questions to be asked of the witnesses provided you follow the proper procedures in doing so. Please withhold any questions until after a witness has completed his or her testimony. Do not interrupt the examination of a witness in order to ask a question. When a witness has finished his or her testimony then, if there is some substantial question in your mind, you may address inquiry to the court. Please do not address either the witness or any lawyer, but confine your inquiry to the court.
On the other hand, if you have difficulty in hearing a witness or a lawyer, please raise your hand immediately and the court will take corrective action.
Points and Authorities
In California, jurors should be afforded the opportunity to ask questions of the witnesses subject to the discretion and approval of the trial court. (People v. McAlister (85) 167 CA3d 633, 644; see also California Rules of Court, Rule 2.1033 .) This instruction, which is patterned after the standard federal instruction (Devitt, et al., Fed. Jury Prac. & Inst. (1992) § 10.06) informs the jury of the option of proposing questions to the witnesses while at the same time assuring that any such inquiry is orderly and subject to the review and approval of the trial court.
This procedure was held to be correct in People v. Cummings (93) 4 C4th 1233, 1306. The Cummings court concluded that the “practice of direct jury questioning of witnesses should not be permitted. The danger of irrelevant and improper questions is high, and were counsel to object, the potential for prejudice is apparent.” (Ibid; see also, State (Montana) v. Graves (95) 907 P2d 963, 967 [holding that the following five “minimum safeguards” should be followed: “(1) the question should be factual, not adversarial or argumentative, and should only be allowed to clarify information already presented; (2) the question should be submitted to the court in writing; (3) counsel should be given an opportunity to object to the questions outside of the presence of the jury; (4) the trial judge should read the questions to the witness; and (5) counsel should be allowed to ask follow-up questions”].)
CAVEAT 1: In Cummings, the defense attorney objected to questioning by the jury presumably because it was strategically unfavorable to the defendant to have the jurors submit questions. Obviously, if counsel has made such a determination, any instruction alerting the jurors to their right to submit questions should not be requested.
CAVEAT 2: California Rules of Court, Rule 2.1033 fails to require all the safeguards approved in Cummings.
See also California Rules of Court, Rule 2.1033. But see FORECITE F 106 Note 2.
ALTERNATIVE FORM
Generally only the lawyers and I ask questions of witnesses. If you feel that an important question has not been asked, you may put the question in writing and have it handed to me. I will then decide if the question should be asked. If it is, I will ask the question of the witness.
Points and Authorities
Adaption of Fed. Jud. Ctr., Pattern Crim. Jury Instructions (1988), Instr. # 2, p. 7.
RESEARCH NOTES
See Annotation, Court’s witnesses (other than expert) in state criminal prosecution, 16 ALR4th 352 and Later Case Service.
F 1.00b
Duties of Judge and Jury: Guilt vs. Innocence
SUBSEQUENT HISTORY: CJ Instruction Modified To Comport With FORECITE. In the CALJIC 6th Edition, CJ 1.00 was amended to adopt FORECITE’s recommendation that the term “innocent” be replaced with “not guilty.”
*Modify 3rd sentence of the last ¶ of CJ 1.00 as follows [added language is capitalized; deleted language is between <<>>]:
You must not be influenced by pity for a defendant or by prejudice against [him] [her]. You must not be biased against the defendant because [he] [she] has been arrested for this offense, charged with a crime, or brought to trial. None of these circumstances is evidence of guilt and you must not <<infer or assume from any or all of them that [he] [she] is more likely to be guilty than innocent>> IN ANY WAY CONSIDER SUCH CIRCUMSTANCES IN DECIDING WHETHER THE PROSECUTION HAS MET ITS BURDEN OF PROVING THE DEFENDANT GUILTY BEYOND A REASONABLE DOUBT. You must not be influenced by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling. Both the People and the defendant have a right to expect that you will conscientiously consider and weigh the evidence, apply the law, and reach a just verdict regardless of the consequences.
Points and Authorities
One of the most fundamental principles of criminal law is the prosecution’s burden to prove the defendant guilty beyond a reasonable doubt. (See Mullaney v. Wilbur (75) 421 US 684 [44 LEd2d 508].) And, an essential rule which emanates from this burden is that the defendant need not prove his or her innocence, but need only leave the jury with a reasonable doubt as to guilt. (See People v. Hall (80) 28 C3d 143, 159 [167 CR 844]; see also People v. Adrian (82) 135 CA3d 335, 342 [185 CR 506]; FORECITE F 17.50b; but see People v. Wade (95) 39 CA4th 1487, 1491-92 [46 CR2d 645] [holding that it was not error to give the “guilty”/ “innocent” language, but failing to address whether the language should be changed upon request].) Hence, jury instructions which suggest that the jury must decide between “guilt” or “innocence” implicate the defendant’s state (Art. I § 15) and federal (6th and 14th Amendments) constitutional rights to due process and trial by jury. (See also Bugliosi, “Not Guilty and Innocent — The Problem Children Of Reasonable Doubt“, 4 Crim. Justice J. 349 (1981).)
Indeed the CALJIC committee appears to have recognized this problem in their 1990 revision of CJ 17.47 which deleted the “guilt or innocence” language of the former instruction. (See also CJ 16.835, lines 10-11.)
Accordingly, CJ 1.00 should also be revised.
F 1.00c
Pretrial Introduction And Definitions
(PC 1122(a); CRC Rule 2.1035; CJ 1.00)
PRETRIAL INTRODUCTION
What I will now say is intended to serve as an introduction to the trial of this case. It is not a substitute for the detailed instructions on the law which I will give to you at the close of the case and before you retire to deliberate on your verdict. During the trial and beginning with these preliminary instructions you will hear me use a few terms which you may not have heard before. Let me now briefly explain a few of the most common to you. You will sometimes hear me refer to “counsel.” “Counsel” is another way of saying “lawyers” or “attorneys.” I will sometimes refer to myself as the “court.” The prosecution and the defendant are sometimes called the “parties” to this case.
When I “sustain” an “objection,” I am excluding that evidence or argument from this trial for good reason. Do not guess what the answer might have been. Do not speculate as to the reason for the objection. Do not assume to be true any insinuation suggested by a question asked a witness. A question is not evidence and may be considered only as it enables you to understand the answer. When you hear that I have “overruled” an objection, I am permitting that evidence or argument to be admitted. When we say “admitted into evidence” or “received into evidence” we mean that this particular statement or this particular exhibit is now part of the trial and may be considered by you in making the decisions you must make in this case.
The term “burden of proof” or “sustaining its burden of proof” means the obligations of proving its case — in this trial — the prosecution’s obligation to produce proof beyond a reasonable doubt.
Points and Authorities
PC 1122(a) requires general instruction, prior to the opening statements, concerning the jury’s “basic functions, duties, and conduct.” (See People v. Carter (2003) 30 C4th 1166, 1199 [failure to admonish per PC 1122 was error]; compare California Rules of Court, Rule 2.1035 [preinstruction is discretionary]; but see FORECITE PG I(H)(8) [statutes take precedence over Rules of Court].) The above instruction provides needed context and explanation of legal terms so that subsequent pretrial instructions on the jury’s functions, duties and conduct will be more fully understood by the jury. (See FORECITE CHK V for examples of instructions which may be required by PC 1122(a). The above instruction is taken from Devitt, et al., Fed. Jury Prac. & Instr. (1992) § 10.01, p. 253-54 and CJ 1.02.)
DEFINITION OF EVIDENCE
You are instructed that “evidence” is whatever is admitted in the trial of the case as a part of the record, whether it be an article or document marked as an exhibit, or other matter formally introduced and received, a stipulation of the testimony of witnesses, in order to enable you to pronounce with reasonable certainty concerning the truth of any matter in dispute.
Points and Authorities
Deering’s EC 550, “Suggested Form.”
IMPARTIALITY IN CONSIDERING EVIDENCE
You must consider and decide this case fairly and impartially. All persons (including corporations) stand equal before the law and are entitled to the same treatment under the law. You should not be prejudiced for or against a person because of that person’s race, religion, political or social views, wealth or poverty. You should not even consider such matters. The same is true as to prejudice, for or against, and sympathy for any party.
Points and Authorities
Deerings EC 350, “Suggested Form.”
F 1.00d Pretrial Instruction Re: Charges And Burden Of Proof
(PC 1122(a); CJ 1.00)
This is a criminal case commenced by the State of California, which I may sometimes refer to as “the prosecution” and sometimes as “the People,” against defendant[s] _____________ [and] [_____________]. The case was initiated by way of an [information] [indictment], which [is summarized] [reads] as follows: [Here summarize or read the information or indictment.]
You should understand that the [information] [indictment] is simply a charge by the prosecution to begin a case and that it is not, in any sense, evidence of the allegations it contains.
The defendant[s] has [have] pleaded not guilty to the [information] [indictment]. [The defendant contends that [he] [she] is not guilty because [here insert the theory of defense, if requested.]]
The prosecution has the burden or obligation of proving each of the essential elements of the crime[s] charged in the [information] [indictment] to you beyond reasonable doubt. This burden never shifts to the defendant even after the prosecution presents its evidence. The purpose of this trial is to determine whether or not the prosecution can meet this burden.
I instruct you to presume that defendant ________________ is not guilty. [It would be beneficial at this point to instruct the jury generally as to the essential elements of the offense or offenses charged.]
Points and Authorities
PC 1122(a) requires that, before the opening statements of counsel, the court shall instruct the jury generally concerning its basic functions, duties, and conduct. (See also People v. Carter (2003) 30 C4th 1166, 1199; compare California Rules of Court, Rule 2.1035 [preinstruction is discretionary]; but see FORECITE PG I(H)(8) [statutes take precedence over Rules of Court].) Hence, an instruction such as the above which sets forth the charges and the duty to presume the defendant not guilty of those charges is essential. (See Devitt, et al., Fed. Jury Prac. & Instr. (1992) § 10.01, p. 260; see also, U.S. v. Maccini (1st Cir. 1983) 721 F2d 840, 843: [“… I take this occasion to state to the jury one of the fundamental principles of American jurisprudence, which is that the burden is upon the government in a criminal case to prove every essential element of every alleged offense beyond a reasonable doubt. That is, the burden is upon the government to prove guilt beyond a reasonable doubt. This burden never shifts throughout the trial. The law does not require a defendant to prove his innocence or to produce any evidence. There is no burden on [the defendant] to produce any evidence.”]) [For further expansion of this principle in light of the defendant’s cross-examination of prosecution witnesses see FORECITE F 2.90d.]
F 1.00e Preliminary Instructions: Order Of Trial
(PC 1122(a); CJ 1.00)
The parties have the opportunity to make opening statements. The government may make an opening statement at the beginning of the case. The defendant may make an opening statement following the opening statement for the government or may postpone the making of an opening statement until the close of the government’s case. The defendant is not obligated to make an opening statement. What is said in the opening statements is not evidence. The opening statements simply serve as an introduction to the evidence which the party making the opening statement intends to produce during the trial.
After any opening statements, the government will introduce evidence which it feels supports the charge[s] contained in the indictment.
After the government has presented its evidence, the defendant[s] may present evidence, but [is] [are] not obliged to do so. The burden or obligation, as you will be told many times during the course of this trial, is always on the government to prove each and every element of the offense[s] charged beyond reasonable doubt. The law never imposes on a defendant in a criminal case the burden of calling any witnesses, producing any exhibits, or introducing any evidence. A defendant is presumed to be innocent of the charge[s].
After all of the evidence has been received, in other words — after all of the witnesses have testified and after all of the exhibits have been admitted, each party will be given the opportunity to present oral argument to you in support of its case. This is called closing argument. What is said in closing argument is not evidence, just as what is said in the opening statements is not evidence. The closing arguments are designed to present to you the contentions of the parties as to what the evidence has shown and what inferences may be drawn from the evidence.
After you have heard the closing arguments of all parties, I will give you, orally [and in writing] the final instructions concerning the laws which you must apply to the evidence received during the trial. Those instructions will be much more detailed than these. You will then retire to consider your verdict. Your verdict must be unanimous — all twelve of you must agree to it.
Points and Authorities
PC 1122(a) requires preinstruction of the jury regarding its basic functions, duties and conduct. The above instruction, adapted from Devitt, et al., Fed. Jury Prac. & Instr. (1992) § 10.01, pp. 255-56 and CJ 1.02, responds to the mandate of PC 1122(a) by explaining the order of trial so the jurors can understand their role in the trial.
F 1.00f
Duty To Keep An Open Mind
(PC 1122(b))
*Add to CJ 1.00:
You must not form or express any opinion about any subject connected with this trial until you have heard each piece of evidence and all of the law which you must apply to that evidence — in other words, until you begin your deliberations.
OR
You must keep an open mind to both sides during this trial. As you know, there are generally two sides to most stories and you must not make up your mind or express any opinion about any of the questions in this case until you have heard each piece of evidence and all of the law which you must apply to that evidence — in other words, until you begin your deliberations.
Points and Authorities
No CALJIC instruction admonishes the jurors as to their duty to keep an open mind. (See In re Hitchings (93) 6 C4th 97, 118, fn 6 [24 CR2d 74].) A juror’s premature formulation of an opinion may skew the burden of proof in violation of the defendant’s constitutional rights to trial by jury and due process. (Calif. Const., Art I § 15 & 16; U.S. Const. 6th and 14th Amendments.) (See Winebrenner v. US (8th Cir. 1945) 147 F2d 322, 328; Herring v. New York (75) 422 US 853, 858 [45 LEd2d 593; 95 SCt 2550].) This problem is all the more acute when the juror expresses his or her opinion. (See People v. Purvis (63) 60 C2d 323, 341, fn 14 [33 CR 104] [“The influence that lurks in an opinion once formed is so persistent that it unconsciously fights detachment from the mental processes of the average man ….”]; see also Delaney v. U.S. (1st Cir. 1952) 199 F2d 107, 113; People v. Purvis (63) 60 C2d 323, 340 fn 14 [33 CR 104] [“the influence that lurks in an opinion once formed is so persistent that it unconsciously fights detachment from the mental processes of the average man….”]; People v. Brown (76) 61 CA3d 476 [132 CR 217] [expression of an opinion as to the guilt of the defendant before hearing all the evidence was prejudicial misconduct].)
Hence, the above instruction, adapted from Devitt, et al., Fed. Jury Prac. & Instr. (1992) § 10.01, p. 256, should be given as a preliminary instruction and repeated at each adjournment of the jury throughout the trial. (PC 1122(b).) [Jury must be admonished before each adjournment not to converse or form or express an opinion about the case. (See also, FORECITE F 1.03c).]
(See also FORECITE F 1.00 n11.)
F 1.00g Duty Not to Receive Payment for Information About the Trial
(PC 1122(a); CJ 1.00)
During the entire tenure of your jury service in this case, and for ninety days after the jury is discharged, you are forbidden from requesting, accepting, agreeing to accept or even discussing the receipt of monetary payments or any other benefit in exchange for information concerning the trial. You shall promptly report any incident within your knowledge involving an attempt by any person to influence any member of the jury.
Points and Authorities
(PC 1122(a).)
F 1.00h Pretrial Instruction: Conclusion And Key Principles
(PC 1122(a); CJ 1.00)
Please keep a few key principles in mind as we begin this trial.
Your job is to decide all of the factual questions in this case — like who should be believed and who should not be believed. I will decide all of the legal questions in this case — like what testimony or exhibits are received into evidence and which are not received. Please do not concern yourselves with the legal questions.
The defendant[s] has [have] plead not guilty and is [are] presumed to be innocent of the crime[s] charged. As such, the defendant[s] is [are] not required to produce any evidence whatsoever. By bringing the charges, moreover, the prosecution has accepted the responsibility to proving the guilt of the defendant[s] to each of you — unanimously — beyond a reasonable doubt.
Don’t discuss this case with anyone and keep an open mind regarding each issue in the case until all of the evidence has been received. At that time I will be able to give you your complete and final instructions which will be much more detailed than these preliminary instructions and which you must use to guide you in reaching your decisions. Then and only then will you be fully prepared to begin your deliberation and reach your verdict[s].
Points and Authorities
PC 1122(a) requires preinstruction of the jury upon its basic functions, duties and conduct. The above instruction, adapted from Devitt, et al., Fed. Jury Prac. & Instr. (1992) § 10.01, p. 259, may be used as a conclusion to the pretrial instructions to summarize the jury’s basic duties.
F 1.00i Introductory Instruction: Reactions To Evidence Must Be Disregarded
*Add to CJ 1.00:
Reactions to evidence introduced during the trial, if any, by the judge, court personnel, attorneys, defendant or spectators do not constitute evidence and cannot be considered by the jury. It is your duty to disregard any such observations.
Points and Authorities
The reaction to the evidence by any of the parties, attorneys, the judge or spectators is not evidence. (See EC 140.) Accordingly, because reactions to the evidence can be highly prejudicial (see People v. Lucero (88) 44 C3d 1006, 1022-24 [245 CR 185],) the jury should be cautioned by an instruction similar to the one set forth above. (See also, U.S. v. Schuler (9th Cir. 1987) 813 F2d 978, 979-82 [improper for prosecutor to comment on courtroom behavior of non-testifying defendant]; see also FORECITE F 2.60b.)
Jury consideration of improper matters lessens the prosecution’s burden of proof in violation of the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See FORECITE PG VII(C).]
(See FORECITE F 17.30a.)
F 1.00j No Bias Against The Disabled
*Add to CJ 1.00:
You must not be biased against the defendant due to [his] [her] disabilities, including brain injury, epilepsy, and learning disabilities.
Points and Authorities
In People v. Holt (97) 15 C4th 619, 687 [63 CR2d 782] the supreme court concluded that there was no duty to instruct the jury that it must not be biased against the defendant due to his disabilities, including brain injury, epilepsy, and learning disabilities. In so doing, the court rejected the argument that such an instruction is required by the Americans With Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.) [ADA] because it was enacted on July 26, 1990, after the trial in Holt’s case. For cases tried after July 26, 1990, the issue remains viable.
F1.00k Jury Does Not Have Duty To Reach A Verdict
*Modify last sentence of last paragraph of CJ 1.00 as follows [added language is capitalized, deleted language is between << >>]:
Both the People and a defendant have a right to expect that you will conscientiously consider and weigh the evidence, apply the law, and ATTEMPT TO reach a <<just>> verdict, IF YOU CAN, regardless of the consequences.
Points and Authorities
The instructions should not coerce the jury into reaching a verdict by suggesting that a verdict must be returned. (See generally, Jiminez v. Myers (9th Cir. 1993) 40 F3d 976. See also FORECITE PG IX(J).)
Moreover, CJ 17.40 states:
“Each of you must consider the evidence for the purpose of reaching a verdict if you can do so.” [Emphasis added.]
Other instructions regarding the jury’s duty should be similarly limited.
F 1.00l Counsel’s Argument That A Specific Rule Is Included In A General Instruction.
See FORECITE F 200.5 Inst 2.
F 1.00m Reference To Availability Of Written Instructions Should Be Made At The End Of The Instructions
*Delete the following language from the first ¶ of CJ 1.00 until the conclusion of all other instructions:
<<[You will have these instructions in written form in the jury room to refer to during your deliberations.]>>
Points and Authorities
If at the outset of the instructions the jury is told that written instructions will be available, there is a danger that the jury will not listen as closely to the oral instructions with the knowledge that they will have the written instructions to refer to later. This danger is particularly significant since the jurors” reference to the written instructions without hearing the oral instructions may be inherently prejudicial. (See PG V(G)(4).) Accordingly, reference to the availability of the written instructions should be made at the end rather than the beginning of the instructions.
F 1.00n Counsel’s Argument That Jury Should Utilize Common Dictionary Meaning Of A Term
*Add to CJ 1.00 Paragraph 4:
If counsel provides you with a definition of a term used in these instructions, you may rely on that definition unless it conflicts with the instructions or I sustain an objection to counsel’s definition.
Points and Authorities
There is generally no sua sponte duty to instruct the jury on the meaning of terms in common usage which are presumed to be within the understanding of persons of ordinary intelligence. (People v. Ordonez (91) 226 CA3d 1207, 1229-30 [277 CR 382]; compare People v. Pitmon (85) 170 CA3d 38, 52 [216 CR 221] [sua sponte duty to define technical legal terms].)
However, when the definition of a common term is requested by the defense in light of a theory of the defense the definition should be given. To the extent that the specific principle reflects a defense theory there is a state and federal right to affirmative instruction on the theory. (5th, 6th and 14th Amendments [due process, compulsory process, trial by jury; see also People v. Saille (91) 54 C3d 1103, 1120 [2 CR2d 364]; People v. Wharton (91) 53 C3d 522, 570-72 [280 CR 631]; People v. Wright (88) 45 C3d 1126, 1141-43 [248 CR 600]; U.S. v. Sotelo-Murillo (9th Cir. 1989) 887 F2d 176, 178-79; U.S. v. Lesina (9th Cir. 1987) 833 F2d 156, 159-60; U.S. v. Escobar de Bright (9th Cir. 1984) 742 F2d 1196, 1201; see also FORECITE PG III(A).) If the court has denied specific instruction on a defense theory, the defendant should still have the right to argue this theory to the jury.
On the other hand, if such instruction is refused counsel should be permitted to read the common dictionary definition to the jury during argument and have the jury instructed to abide by that definition. Such an instruction is necessary because:
1. In reality, jurors often have difficulty understanding the instructions, and thus, notwithstanding the presumption that the jurors will correctly understand, there is a real danger that they will not. (See e.g., People v. Dunkle (2005) 36 C4th 861, 895 [even counsel couldn’t agree on dictionary definition].) Empirical studies have recognized that jurors may not adequately comprehend the jury instructions. (See FORECITE PG II(K).)
2. It is established that counsel may recite legal rules during argument when appropriate. (See People v. Sudduth (66) 65 C2d 543, 548 [55 CR 393] [in court’s discretion, counsel may incorporate correct statements of the law into argument]; People v. Anderson(1872) 44 C 65, 70-71; In re Wagner (81) 119 CA3d 90, 113-14 [173 CR 766] and Witkin cited therein; People v. Travis(54) 129 CA2d 29, 36-39 [276 P2d 193]; see also Annotation, Counsel’s right in criminal case to argue law or to read books to the jury, 67 ALR 2d 245 and Later Case Service.)
(See also FORECITE PG VI(C)(10).)
3. There is no sound basis for precluding counsel from providing the jury with a definition which is proper and presumed to be within its understanding.
In fact, CJ 1.00 (paragraph 4) already implies that the jury may rely on counsel’s argument as to the law by stating:
You must accept and follow the law as I state it to you, regardless of whether you agree with the law. If anything concerning the law said by the attorneys in their arguments or at any other time during the trial conflicts with my instructions on the law, you must follow my instructions.
Hence, the above supplement to CJ 1.00 merely makes express that which it already implies.
In sum, fundamental notions of fair trial by jury and due process require that the defendant be allowed to assure that the jury understands any correct definition of material terms which may have a bearing on its verdict. If counsel is precluded from conveying this principle by specific instruction, then the jury should be informed to accept and follow counsel’s recitation of the definition during argument.
Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, §15 and §16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See FORECITE PG VII(C).]
CAVEAT: This instruction is intended to address the situation where a defense requested instruction on a definition has been rejected on the basis that the definition is presumed to be within the common understanding of the jurors. In such situation counsel should be permitted to argue the point, but the jury may not give such argument the same stature as an instruction from the court. The above instruction is intended to address this concern although, if it is rejected, CJ 1.00 (Paragraph 4) says the same thing by implication.
Such an instruction should be carefully evaluated because it may allow the jury to consider other definitions in argument from either side in the same fashion. Hence, counsel will have to be especially vigilant to object to mis-statements by the prosecutor during argument.
F 1.00o Jury Not To Be Influenced By Bias
*Add to CJ 1.00 [added language is capitalized:]
You must not be influenced by sentiment, conjecture, sympathy, BIAS, passion, prejudice, public opinion or public feeling.
Points and Authorities
Any instruction concerning the duties of the jurors and how they should approach their tasks should include an admonishment against being influenced by bias. Many other states include bias in like instructions. (See e.g.,Maryland Civil Jury Instructions and Commentary (1993), No. 3.06; Oregon Uniform Criminal Jury Instruction (1998) (UCrJI) No. 1003; Michigan Criminal Jury Instructions, 2nd ed. (ICLE 1989 & Supps.), CJI2d 1.1; Oklahoma Uniform Jury Instructions Criminal (2nd ed.) OUJI-CR 1.4; South Dakota Pattern Jury Instructions–Criminal (1996 ed.) No. 1-20-1; The Law of Instructions to Juries in Civil and Criminal Cases (3d ed. Supp. 1994), No. 2560; Id., (3d ed. 1962 and Supp. 1994) No. 3445. See also FORECITE F 1.00j [Americans With Disabilities Act of 1990 requires instruction that the jury should not be biased against the disabled].)
“Bias” is a needed counterpart to “sympathy.” (Virginia Model Jury Instructions–Civil (repl. ed 1993), No. 2.220 Comment.)
F 1.00p Jury Not To Consider Indictment As Evidence
*Add to CJ 1.00:
_____________________ (name of defendant) is on trial for ___________________ (charged offense) because a grand jury indicted [him] [her] on this crime. The mere fact that someone has been indicted by a grand jury may not be considered by you as any evidence that this person is guilty and I will now explain to you why this is so.
First, for most of the grand jury proceedings only the prosecution and grand jurors are present. The accused and his or her attorney are always excluded and the judge is only present if the grand jury asks for specific advice.*
Second, only the prosecutor can call witnesses before the grand jury. The defendant has no right to call any witness who might testify to a different version of the facts than that presented by the prosecutor. The prosecutor has no duty to present evidence which favors the defendant unless the prosecutor is aware of such evidence and deems that it substantially helps the accused.
As you will learn during this trial, it is my responsibility, as the trial judge, to instruct you on the law you must apply to the facts. In a grand jury hearing there is no judge to instruct the grand jury on the law. Typically, the only information on the law the jurors receive is from the comments of the prosecutor.
For all these reasons, it would be a violation of your oath as jurors, to place any weight whatsoever on the fact that a grand jury indicted _____________________ (name of defendant).
* See PC 934(a).
Points and Authorities
It is axiomatic that the jury should not consider the charges as evidence of the defendant’s guilt. (See U.S. v. Alviso (9th Cir. 1998) 152 F3d 1195; People v. Frye (98) 18 C4th 894, 957 [77 CR2d 25]; Goldberg v. Barger (74) 37 CA3d 987, 997 [112 CR 827]; People v. Edgar (1917) 34 CA459, 467 [167 P 891].) Typically, therefore, the jury is simply instructed that the indictment or information is not evidence. (See e.g., CJ 1.01; 9TH CIRCUIT MODEL JURY INSTRUCTIONS – CRIMINAL 1.2 [The Charge–Presumption Of Innocence] (2000); Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS No. 1 [Standard Preliminary Instruction Before Trial] (1988).)
However, because an indictment implies that the grand jury has made a judicial determination in the matter, special dangers may be present and, therefore, the jury should not be advised that the charges were made by the grand jury. (See Alexander, MAINE JURY INSTRUCTIONS MANUAL 4-2 comment. [Instruction 4-Statement To Criminal Jury At Start Of Trial] (Lexis, 1999); see also State v. Calor (ME 1991) 585 A2d 1385, 1388; People v. Sallito (NY 1992) 589 NYS2d 66, 67; People v. Evans (NY 1978) 404 NYS2d 382, 383; UNIFORM CRIMINAL JURY INSTRUCTIONS (OREGON), UCrJI 1001, comment [General Instructions-Introduction] 10/95 (Oregon State Bar, 1998 ) [“The jury does not need to know whether the case was heard by the grand jury”].)
In some situations, however, it may not be possible to prevent the jury from knowing that an indictment was returned by the grand jury. In those situations it may be appropriate to consider an explanatory/cautionary instruction.
CAVEAT: Counsel will need to evaluate the efficacy of such a cautionary instruction in light of the concern that it may draw undue attention to the grand jury indictment. (See generally FORECITE PG X(E)(19)(1).)
