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F 1.02 n1 Stipulation: Impact On Duty To Produce Evidence.
PRACTICE NOTE: A party is entitled to rely on a stipulation to refrain from producing evidence on the facts stipulated. (See, e.g., People v. Dyer (88) 45 C3d 26, 75 [246 CR 209] [prosecution properly relied on defense stipulation in not proving fact of prior conviction].)
F 1.02a Judicial Notice
*Add to CJ 1.02:
Even though no evidence has been introduced about it, I have decided to accept as proved the fact that __________ [insert fact judicially noticed]. I believe that this fact is of such common knowledge [or insert alternative ground per EC 451 – EC 453] that no evidence need be presented about it. Thus, you must treat it as proved, even though no evidence was brought out on the point.
Points and Authorities
EC 457 provides that if a matter is judicially noticed which would otherwise have been for determination by the jury, “the court may, and upon request shall, instruct the jury to accept as a fact the matter so noticed.” The above instruction is adapted from the Fed. Jud. Ctr., Pattern Crim. Jury Instructions (1988), Instr. # 7, p. 13.
People v. Moore (97) 59 CA4th 168, 179 [69 CR2d 56] considered the matter of how the jury should be instructed upon a fact which the trial court has judicially noticed. The court distinguished those cases holding that it is improper to direct a verdict on an element of the charge on the basis that, where judicial notice is mandatory, the indisputable fact must be accepted and no evidence can be offered to dispute it. (Moore, 59 CA4th at 185.) Accordingly, the jury was correctly instructed to accept the judicially noticed matter as true.
NOTE: No Judicial Notice Of Facts From Published Or Unpublished Appellate Opinions. A trial court cannot take judicial notice under EC 459 of facts set forth in published appellate opinions. Such facts are hearsay. A court may only take judicial notice of facts that result from adversarial proceedings. (Lockley v. Law Office of Cantrell, Green, Pekich et al. (2001) 91 CA4th 875 [110 CR2d 877]; see also People v. Rubio (77) 71 CA3d 757 [139 CR 750] disapproved on other grounds in People v. Freeman (78) 22 C3d 434, 438-439 [149 CR 396] [error for trial court to take judicial notice of magistrate’s minute order reflecting defendant’s nonappearance in municipal court to prove flight]; People v. Tolbert (86) 176 CA3d 685, 690 [222 CR 323] [error to take judicial notice of magistrate’s factual findings at preliminary hearing for their truth].) A trial court also cannot take judicial notice of facts in unpublished opinions, for the additional reason that they are unpublished. (People v. Webster (91) 54 C3d 411, 428 fn 4 [285 CR 31]; see also Eisenberg, Horvitz & Weiner, “Civil Appeals and Writs” (2000 ed.), § 5:158.1 at pp. 5-43 – 5-44 [“Requests for judicial notice cannot be used to circumvent appellate rules and procedures (such as the prohibition against citing unpublished opinions).”])
NOTE: Appellate Notice Of Records In Another Case. Although the court can take notice of records in another proceeding, it may not take notice of the truth of the contents in the file. (People v. Esayian (2003) 112 CA4th 1031; see also Mangini v. R.J. Reynolds Tobacco Co. (94) 7 C4th 1057, 1062; People v. Woodell (98) 17 C4th 448, 455.)
F 1.02b Stipulated Facts
*Add to CJ 1.02:
ALTERNATIVE FORMS
Alternative Form 1:
Stipulations of Testimony
Earlier you were told that the prosecution and the defendant agreed, or stipulated, that __________ [insert stipulated testimony]. That would be __________’s testimony if [he] [she] were called as a witness. You will consider that to be the testimony of __________ as if [he] [she] appeared in court and so testified.
Points and Authorities
Adaption of Fed. Jud. Ctr., Pattern Crim. Jury Instructions (1988), Instr. # 11, p. 18.
Alternative Form 2:
Stipulations of Fact
Earlier you were told that the prosecution and the defendant agreed, or stipulated, that __________ [insert stipulated fact]. This means simply that both sides accept the fact that __________. There is no disagreement over that, so there was no need for evidence by either side on that point. You must accept that as fact, even though nothing more was said about it one way or the other.
Points and Authorities
Adaption of Fed. Jud. Ctr., Pattern Crim. Jury Instructions (1988), Instr. # 12, p. 19.
Alternative Form 3:
Instruction Concerning Admissions And Stipulations As Established Facts
Neither side is required or permitted to introduce at the trial any evidence with respect to an issue of fact that has been admitted by the parties or stipulated to in open court. You are to assume such admissions as established facts.
Points and Authorities
Adaption of Deerings EC 402, “Suggested Form.”
Alternative Form 4:
Stricken Testimony, Stricken Statements Of Counsel, Inferences Governing
Rulings On Objections, Etc.
For alternative forms concerning stricken testimony, stricken statements of counsel, inferences governing rulings on objections, etc., see Deerings EC 353, “Suggested Forms.”
RESEARCH NOTE: See “Stipulations to Exclude Other Act Evidence: What Is Adequate?,” by Stephen A. Saltzburg, ABA Criminal Justice, Vol. 10, No. 1, (Spring 1995) pp. 39-42; “Stipulations by the Defense to Remove Other Act Evidence,” by Stephen A. Saltzburg, ABA Criminal Justice, Vol. 9, No. 4, (Winter 1995) pp. 35-39; “Stipulations, Part III, Convicted Felons on Trial,” by Stephen A. Saltzburg, ABA Criminal Justice, Vol. 10, No. 2, (Summer 1995) pp. 31-34.
F 1.02c Jury Not To Consider Stricken Arguments Of Counsel
*Modify last paragraph of CJ 1.02 to provide as follows [added language is capitalized]:
Do not consider for any purpose any offer of evidence that was rejected or any evidence OR ARGUMENT OF COUNSEL that was stricken by the court; treat it as though you had never heard of it.
Points and Authorities
Although the CALJIC comment to CJ 1.02 directly notes that arguments of counsel are not evidence (People v. Stewart (59) 168 CA2d 57, 60-61 [335 P2d 189]), the instruction itself does not admonish the jury to disregard arguments of counsel which have been stricken by the court. Hence, CJ 1.02 should be modified to add arguments of counsel to the admonition.
F 1.02d Cautionary Instruction Regarding Charts, Graphs, Summaries, Etc.
*Add to CJ 1.02 when appropriate:
Charts and other summary materials utilized by the attorneys for the purpose of summarizing the evidence are no better than the books or the testimony upon which they are based. They are an interpretation of the evidence by the party who submitted them. It is for you to decide whether the charts, schedules or summaries correctly present the data set forth in the testimony and exhibits upon which they are based.
ALTERNATIVE FORM
Certain charts [and] [or] summaries have been received into evidence to illustrate the testimony of some witnesses. Charts and summaries are an interpretation of the evidence by the party who submitted them and are only as good as the underlying evidence that supports them. You should, therefore, give them only such weight as you think the underlying evidence deserves.
Points and Authorities
Pedagogical summaries in the form of charts, graphs, schedules, etc. should only be introduced at trial if adequate protections are provided to minimize the prejudice which may flow from the jury’s improper use of the summaries. (See U.S. v. Johnson (4th Cir. 1995) 54 F3d 1150, 1160, fn 10.) For example, the use of such charts is not uncommon in capital cases where the prosecution seeks to summarize the aggravating and mitigating factors. (See e.g, People v. Montiel (93) 5 C4th 877, 939, fn 36 [21 CR2d 705]; People v. Hamilton (89) 48 C3d 1142, 1185 [259 CR 701]; People v. Guzman (88) 45 C3d 915, 971 [248 CR 467].) Assuming the use of such charts is permissible, they “present a serious danger that the jurors will take into their deliberations a misleading impression ….” (People v. Ghent (87) 43 C3d 739, 782 [239 CR 82], concurring opinion.) It is proper for courts to admit in evidence illustrative charts and maps. (See People v. Watts (26) 198 C 776, 790 [247 P 884].) On the other hand, charts which are merely a summary of the testimony “merely make it more convenient for the trier of fact to understand [the evidence]” and, therefore, it normally should be of little consequence whether or not the chart is formally admitted into evidence. (See Estate of Busted (51) 105 CA2d 14, 21 [232 P2d 881]; see also, U.S. v. Johnson, 54 F3d at 1159.) Therefore, summary charts should be used and/or introduced into evidence “only if adequate protections are provided to minimize prejudice ….” (U.S. v. Johnson, 54 F3d at 1160, fn 10.) Moreover, the instructions, when appropriate should also “clearly inform [] the jury that the chart represent[s] the [offering party’s] analysis.” (U.S. v. Johnson, 54 F3d at 1161.)
The instruction set forth above is adapted from an instruction relied upon in U.S. v. Goldberg (2nd Cir. 1968) 401 F2d 644, 647-48 and approved in U.S. v. Johnson, 54 F3d at 1160-61. The alternative instruction set forth above is adapted from the Ninth Circuit’s Manual of Model Jury Instructions, Criminal (1995), § 4.18; see also, Devitt, et al., Fed. Jury Prac. & Inst. (1992) § 1402 and § 7209.
USE NOTE
To avoid giving unwarranted emphasis to a chart or summary, a cautionary instruction should be given both when the chart or summary is presented and before deliberations.
PRACTICE NOTES
Additional Issues: U.S. v. Johnson identified several other considerations regarding pedagogical summaries in the form of charts, graphs, schedules, etc., including the following:
1. The rules of evidence regarding summaries of voluminous documents and pedagogical summaries should be the same for prosecutors and defense counsel.
2. A special danger arises when a summary witness is also used as an expert.
3. When a summary chart is used, the trial judge must provide an opportunity for cross-examination of its preparer.
4. Trial judges must be sensitive to the fact that summary charts and witnesses may be offered not to help the jury, but to provide an extra closing argument at the end of a case in chief instead of at the end of the case.
Permissibility Of Summary Witnesses: The dissenting judge in U.S. v. Johnson argued that the use of summary witnesses is always more prejudicial than probative. When the dissenting judge’s analysis is combined with the majority’s observation that “[t]he dangers inherent in using a summary witness in a federal criminal prosecution to support the government’s case-in-chief are plain,” the case for excluding summary witnesses might be a strong one. There is no logical reason to assume that the concerns about such witnesses are confined to federal criminal prosecutions, or to assume that state criminal proceedings are immune to the same concerns.
In California, summary charts have been permitted (see Points and Authorities above), but no case has directly addressed the issue. Nor has any case considered whether the prejudice and resultant danger of an unreliable result from use of a summary witness or chart could violate federal constitutional principles (e.g., due process (14th Amendment); trial by jury (6th and 14th Amendments); cruel and unusual punishment in death cases (8th Amendment).
[An article further discussing these issues is available to FORECITE subscribers. Ask for Article Bank # A-70.]
