F 2.01 n5 Applicability Of Circumstantial Evidence Principles To Direct Evidence.
The principles set forth in CJ 2.01 and 2.02 are specifically limited to circumstantial evidence. However, the principles set forth in CALJIC circumstantial evidence instructions should be applied to all evidence not just circumstantial evidence. In fact, the California courts have long recognized the principle that if two reasonable interpretations of the evidence exist, the one favoring the defendant’s innocence must be adopted by the jury. (See People v. Bender (45) 27 C2d 164, 175-77 [163 P2d 8]; People v. Naumcheff (52) 114 CA2d 278, 281 [250 P2d 8] [“If from the evidence you can with equal propriety draw two conclusions, the one of guilt, the other of innocence, then in such a case it is your duty to adopt the one of innocence and find the defendant not guilty.”]; People v. Haywood (52) 109 CA2d 867, 872 [241 P2d 665] [“The testimony in this case if its weight and effect be such as two conclusions can be reasonably drawn from it, the one favoring the defendant’s innocence, and the other tending to establish his guilt, law, justice and humanity alike demand that the jury shall adopt the former and find the accused not guilty.”]; People v. Foster (26) 198 C 112, 127 [243 P 667] [Jury instructed “that, considering the evidence as a whole, if it was susceptible of two reasonable interpretations, one looking ‘toward guilt and the other towards the innocence of the defendant, it was their duty to give such facts and evidence the interpretation which makes for the innocence of the defendant.'”]; People v. Barthleman (1898) 120 C 7, 10 [52 P 112] [“If the evidence points to two conclusions, one consistent with the defendant’s guilt, the other consistent with the defendant’s innocence, the jury are bound to reject the one of guilt and adopt the one of innocence, and acquit the defendant.”]; and People v. Carrol (47) 79 CA2d 146, 150 [179 P2d 75] [“You are instructed that if from the evidence you can with equal propriety draw two conclusions, one of guilt, the other of innocence, it is your duty to adopt the one of innocence and find the defendant not guilty.”].)
In the federal system, the principle set forth above is conveyed to the jury by a standard jury instruction which provides as follows: “If the jury views the evidence in the case as reasonably permitting either of two conclusions – one of innocence, the other of guilt – the jury must, of course, adopt the conclusion of innocence.” (Devitt, et al. Fed. Jury Prac. & Instr. (1992) § 1210, p. 354; see also U.S. v. James (9th Cir. 1978) 576 F2d 223, 227 fn 3; but see U.S. v. Grayson (9th Cir. 1979) 597 F2d 1225 [proper but not required].)
For some reason, however, the CALJIC instructions have evolved in such a way as to limit this principle to circumstantial evidence as opposed to all of the evidence. In point of fact, People v. Bender, supra, which CALJIC provides as authority for its circumstantial evidence instruction, did not hold that it should only be given in circumstantial evidence cases. To the contrary, Bender stated that the instruction, as applied to all of the evidence, was “eminently proper…”. Bender, 27 C2d at 177.
Hence, the principles set forth in CJ 2.01 and 2.02 should be made equally applicable to both circumstantial and direct evidence. Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates 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 generally, FORECITE PG VII(C).] [Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-694.]
(See also FORECITE F 2.01 n6.)
F 2.01 n6 Limitation Of Reasonable Doubt/Burden Of Proof Principles To Circumstantial Evidence Improperly Implies That Such Principles Do Not Apply To Direct Evidence.
In FORECITE, F 2.01 n5, it was shown that the principles embodied in CJ 2.01 and CJ 2.02 regarding burden of proof and reasonable doubt are equally applicable to both circumstantial and direct evidence. However, apart from whether there is an affirmative duty to instruct in this regard, by limiting the principles to circumstantial evidence, CJ 2.01 and CJ 2.02 improperly imply to the jurors that they do not apply to direct evidence. That is, in CJ 2.00 the jury is told that there are two types of evidence: direct and circumstantial. By then telling the jury that certain principles apply to circumstantial evidence, the jury cannot help but conclude, based on common logic, that those same principles do not apply to direct evidence. “Although the average layperson may not be familiar with the Latin phrase inclusio unius est exclusion alterius, the deductive concept is commonly understood ….” (People v. Castillo, supra, 16 C4th at 1020 [conc. opn. of Brown, J.]; see also U.S. v. Crane (9th Cir. 1992) 979 F2d 687, 690 [maxim expressio unius est exclusio alterius “is a product of logic and common sense”].) To reasonable minds, CJ 2.01 and CJ 2.02 would appear to include an intentional omission. That is how the Supreme Court reasoned in People v. Dewberry (59) 51 C2d 548, 557[334 P2d 852]:
“The failure of the trial court to instruct on the effect of a reasonable doubt as between any of the included offenses, when it had instructed as to the effect of such doubt as between the two highest offenses, and as between the lowest offense and justifiable homicide, left the instructions with the clearly erroneous implication that the rule requiring a finding of guilt of the lesser offense applied only as between first and second degree murder.” (See alsoPeople v. Salas (76) 58 CA3d 460, 474 [129 CR 871] [when a generally applicable instruction, such as CJ 2.02, is specifically made applicable to one aspect of the charge and not repeated with respect to another aspect, the inconsistency may be prejudicial error].)
Effectively, the context highlights the omission, so the jury learns that the stated principles, while applying to circumstantial evidence, do not apply to direct evidence.
In sum, CJ 2.01 and CJ 2.01 erroneously mislead the jury into deducing that the principles stated in those instructions do not apply to direct evidence.
F 2.01 n7 Applicability Of Circumstantial Evidence Principles To Expert Testimony.
“An opinion is an inference from facts observed.” (See e.g., 1 Witkin, California Evidence, Opinion Evidence § 1, p. 528 (4th ed. 2000) [“an opinion is an inference from facts observed”].) Hence, the opinions of experts have uniformly been held to constitute circumstantial evidence in California. (See e.g., id., pp. 579-625; see also People v. Goldstein (56) 139 CA2d 146, at 153 [293 P2d 495].) In particular, in People v. Jones (54) 42 C2d 219 [266 P2d 38], the Supreme Court characterized the opinion testimony of a psychiatrist, who was to render an opinion that the defendant was not a sexual deviant, as “indirect evidence.” (42 C2d at 222; see also Goldstein, supra, 139 CA2d at 153.)
F 2.01a Circumstantial Evidence: Guilt vs. Innocence
*Modify ¶ 3 of CJ 2.01 as follows [added language is capitalized; deleted language is between <<>>]:
Also, if the circumstantial evidence [as to any particular count] is susceptible of two reasonable interpretations, one of which points to <<the defendant’s>> A FINDING OF guilt and the other to <<[his] [her] innocence>> A FINDING THAT GUILT HAS NOT BEEN PROVEN, you must adopt that interpretation which points to <<the defendant’s innocence>> A FINDING THAT GUILT HAS NOT BEEN PROVEN, and reject that interpretation which points to <<[his] [her]>> A FINDING OF guilt.
Points and Authorities
[See FORECITE F 1.00b]
Accordingly, CJ 2.01 should also be revised.
The argument advanced by FORECITE regarding the impropriety of instructing the jury in terms of the defendant’s “guilt or innocence” was approved in People v. Han (2000) 78 CA4th 797, 809 [93 CR2d 139]: “We recognize the semantic difference and appreciate the defense argument. We might even speculate that the instruction will be cleaned up eventually by the CALJIC Committee to cure this minor anomaly, for we agree that the language is inapt and potentially misleading in this respect standing alone.” [Referring to CJ 2.01.] [Original emphasis.]
However, the court held that the error was harmless: “While a trial judge would do better, we think, to give the modifications proposed here, we find no reversible error considering the instructions as a whole.” (Ibid.)
F 2.01b When Defense Is Based Upon The Defendant Acting Unreasonably
*Add to CJ 2.01 when appropriate:
However, you should consider if the defendant was acting unreasonably or irrationally in determining whether [his] [her] __________ [insert alleged act, e.g., flight] shows a consciousness of guilt.
Points and Authorities
In some cases, the defense may seek to negate the impact of consciousness of guilt evidence by arguing that the defendant was not acting rationally after the offense. Hence, his or her commission of the acts allegedly engendering a consciousness of guilt were not the product of a rational attempt to avoid apprehension, but were irrational acts which should not be relied upon to provide an inference of consciousness of guilt.
In such a case, CJ 2.01 may conflict with this defense theory. Hence, the instruction should be supplemented to make it clear that unreasonable behavior by the defendant may negate the inference that he/she acted with a consciousness of guilt.
F 2.01c
Mere Suspicion Or Possibility Insufficient
For Inference Of A Fact
*Add to CJ 2.01:
You may not infer a fact based on a mere possibility that the fact is true. A mere possibility is nothing more than a suspicion, which is not a sufficient basis for an inference of fact.
Points and Authorities
“The mere possibility that [something happened] raises nothing more than a suspicion, which does not form a sufficient basis for an inference of fact. [Citation.]” (In re Leanna W. (2004) 120 CA4th 735, 741; see also People v. Martin (73) 9 C3d 687, 695; People v. Redmond (69) 71 C2d 745, 755.)
Just as the defendant does not have a right to “present to the jury a speculative, factually unfounded inference” (People v. Holloway (2004) 33 C4th 96, 130 [internal citations and quotation marks omitted), neither should the jury be permitted to convict based on such an inference. (See Wardius v. Oregon (73) 412 US 470 [37 LEd2d 82; 93 SCt 2208] [lack of balance between prosecution and defense violates due process]; Lindsay v. Normet (72) 405 US 56, 77 [31 LEd2d 36; 92 SCt 862] [arbitrary preference to particular litigants violates equal protection].)
Moreover, when a fact is inferred based on a mere possibility or suspicion, it cannot be said “with substantial assurance” that the inference is “more likely than not” to flow from the underlying facts. Therefore, such an inference is constitutionally deficient. (See County Court of Ulster County v. Allen (79) 442 US 140, 157 [60 LEd2d 777; 99 SCt 2213] [instruction embodying a permissive inference may be unconstitutional “if, under the facts of the case, there is no rational way the trier of fact could make the connection permitted by the inference”]; Leary v. U.S. (69) 395 US 6, 36 [23 LEd2d 57; 89 SCt 1532] [permissive presumption is unconstitutional “unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact upon which it is made to depend”]; Schwendeman v. Wallenstein (9th Cir. 1992) 971 F.2d 313, 316.)
See also FORECITE F 2.90l [Strong Suspicion No Substitute For Proof Beyond A Reasonable Doubt]; cf. F 2.90b [Rejection or Disbelief Does Not Satisfy Prosecution’s Burden].
