PG VII(I)(b) Grounds For All CasesBCapital and Non-Capital.
| TABLE OF CONTENTS |
| CG 10 |
Judge’s Duties |
| CG 10.1 |
Fair And Unbiased Judge |
| CG 10.2 |
Judge’s Duties: Deadlocked Jury |
| CG 10.3 |
Comment, Argument Or Undue Emphasis |
| CG 10.4 |
Competency Of Judge
|
Return to Constitutional Grounds Table of Contents.
CG 10 Judge’s Duties.
CG 10.1 Fair And Unbiased Judge.
CAVEAT: To properly preserve a federal constitutional claim, the defendant must explain how the constitutional provision is violated under the circumstances of the case. Therefore, the issues, language and authorities included in FORECITE’s Constitutional Grounds are not a substitute for individual consideration and presentation of each constitutional claim on a case-by-case basis. Counsel should also independently consider and research whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.
(See FORECITE CG Table of Contents [PG VII(I)(a)] for a partial list of other potential constitutional grounds.)
*Insert bold text into Points and Authorities:
This request is based, inter alia, on the Due Process, Trial By Jury, Confrontation, Compulsory Process and Right to Counsel Clauses of the California Constitution (Art I, §§7, 15 and 16) and the federal constitution (5th, 6th and 14th Amendments), as applied to California through the Incorporation Doctrine. (Duncan v. Louisiana (1968) 391 US 145 [20 LEd2d 491; 88 SCt 1444]; see also Tennessee v. Lane (2004) 541 US 509, 562 [158 LEd2d 820; 124 SCt 1978].)
Unless this instructional request is granted the instruction will abridge the defendant’s rights under the above constitutional provisions by violating the defendant’s right to trial before a fair and impartial judge and jury. (U.S. v. Fuller (4th Cir. 1998) 162 F3d 256, 259; see also U.S. v. Gaudin (1995) 515 US 506, 514-15 [115 SCt 2309; 132 LEd2d 444]; Gray v. Mississippi (1987) 481 US 648, 668 [107 SCt 2045; 95 LEd2d 622]; Tumney v. Ohio (1927) 273 US 510, 535 [47 SCt 437; 71 LEd 749].)
Actual or apparent bias by the trial judge against the defendant and/or in favor of the prosecution unfairly skews the trial toward conviction in violation of the defendant’s federal constitutional rights to a fair trial by jury and due process (5th, 6th and 14th Amendments) . (Bracy v. Gramley (1997) 520 US 899, 904-05 [117 SCt 1793; 138 LEd2d 97] [due process requires a fair trial before a judge without actual bias against the defendant or an interest in the outcome of his particular case]; see also Withrow v. Larkin (1975) 421 US 35, 46 [95 SCt 1456; 43 LEd2d 712] [due process requires a “fair trial in a fair tribunal,” before a judge with no actual bias against the defendant or interest in the outcome of his particular case]; Tumney v. Ohio (1927) 273 US 510, 535 [47 SCt 437; 71 LEd 749]; Duncan v. Louisiana (1968) 391 US 145, 156 [88 SCt 1444; 20 LEd2d 491] [Sixth Amendment Jury Trial Clause serves as “an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge” ].)
Not only must trial judges be fair and impartial, they must also “satisfy the appearance of justice.” (Offutt v. United States (1954) 358 US 11, 14.)
These principles have been consistently embraced by the California Supreme Court. Above all else, a judge must remain impartial. (Cooper v. Superior Court (1961) 55 C2d 291, 301.) Public confidence in the judiciary requires that judges be impartial. (People v. Thomas (1972) 8 C3d 518, 520.) There should be no appearance of partiality. (See People v. Rhodes (1974) 12 C3d 180, 185; see also Solberg v. Superior Court (1977) 9 C3d 182, 193 fn. 10.) The Legislature embraced the constitutional right to a fair and impartial judge when it adopted Code of Civil Procedure sections 170 et seq.
These rights are also implicated because a biased or unfair judge puts the defendant at a disadvantage (see Wardius v. Oregon (1973) 412 US 470 [93 SCt 2208; 37 LEd2d 82]) and because any juror perception of bias on the part of the trial judge may lessen or shift the prosecution’s burden of proving the defendant guilty beyond a reasonable doubt. (See Taylor v. Hayes (1974) 418 US 488, 501 [94 SCt 2697; 41 LEd2d 897] [judge’s appearance of bias may violate due process]; see also Offutt v. U.S. (1954) 348 US 11, 14 [75 SCt 11; 99 LEd 11] [“justice must satisfy the appearance of justice” ].)
This request is also based on the 14th Amendment’s Due Process Clause which is violated by:
(1) The arbitrary denial of a state created right. (Hicks v. Oklahoma (1980) 447 US 343 [65 LEd2d 175; 100 SCt 2227].) [See also FORECITE CG 6.3.]
(2) Multiple errors of state law which cumulatively render the trial unfair. (Greer v. Miller (1987) 483 US 756, 765 [107 SCt 3092; 97 LEd2d 618]; Taylor v. Kentucky (1978) 436 US 478, 488 [98 SCt 1930; 56 LEd2d 468]; Mak v. Blodgett (9th Cir. 1992) 970 F2d 614, 622; People v. Hill (1998) 17 C4th 800, 844-45.) [See also FORECITE CG 6.4.]
Furthermore, because this instruction request is necessary to assure the reliability of the jury’s disposition of this case, it is required by the above provisions of the federal constitution. (See generally Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354]; White v. Illinois (1992) 502 US 346, 363-64 [112 SCt 736; 116 LEd2d 848]; Donnelly v. DeChristoforo (1974) 416 US 637, 646 [94 SCt 1868; 40 LEd2d 431]; Thompson v. City of Louisville (1960) 362 US 199, 204 [80 SCt 624; 4 LEd2d 654].) [See also FORECITE CG 1.14.]
If this instruction request is not granted, there is a reasonable likelihood that the jury will apply the instructions in a way that will prejudicially violate the defendant’s federal constitutional rights. (Estelle v. McGuire (1991) 502 US 62 [116 LEd2d 385; 112 SCt 475]; McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 839.)
ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases additional federal constitutional claims will apply, above and beyond the claims discussed above. (Insert appropriate grounds into Points and Authorities including, but not limited to, those applicable from FORECITE (PG VII(I)(c)][Constitutional Grounds: Death Penalty].)
CG 10.2 Judge’s Duties: Deadlocked Jury.
CAVEAT: To properly preserve a federal constitutional claim, the defendant must explain how the constitutional provision is violated under the circumstances of the case. Therefore, the issues, language and authorities included in FORECITE’s Constitutional Grounds are not a substitute for individual consideration and presentation of each constitutional claim on a case-by-case basis. Counsel should also independently consider and research whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.
(See FORECITE CG Table of Contents [PG VII(I)(a)] for a partial list of other potential constitutional grounds.)
*Insert bold text into Points and Authorities:
This request is based, inter alia, on the Due Process, Trial By Jury, Confrontation, Compulsory Process and Right to Counsel Clauses of the California Constitution (Art I, §§7, 15 and 16) and the federal constitution (5th, 6th and 14th Amendments), as applied to California through the Incorporation Doctrine. (Duncan v. Louisiana (1968) 391 US 145 [20 LEd2d 491; 88 SCt 1444]; see also Tennessee v. Lane (2004) 541 US 509, 562 [158 LEd2d 820; 124 SCt 1978].)
Unless this instructional request is granted the instruction will abridge the defendant’s rights under the above constitutional provisions by unduly coercing the jurors into reaching a verdict. When a trial court instructs a deadlocked jury it “is essential in almost all cases to remind jurors of their duty and obligation not to surrender conscientiously held beliefs simply to secure a verdict for either party.” (U.S. v. Mason (9th Cir. 1981) 658 F2d 1263, 1268; see also Rodriguez v. Marshall (9th Cir. 1997) 125 F3d 739, 748-51 [inquiry held not to be coercive where court on four occasions reminded the jurors not to surrender their sincerely held beliefs under pressure from the majority]; U.S. v. Scott (6th Cir. 1977) 547 F2d 334, 337 [“one of the most important parts of the Allen charge” ]; Smalls v. Batista (2nd Cir. 1999) 191 F3d 272, 279 [“lack of any cautionary language which would discourage jurors from surrendering their own conscientiously held beliefs was a > fatal flaw'” ]; Sartin v. State (OK 1981) 637 P2d 897, 898; see also FORECITE CG 7.8 [Right To Individual Juror Determination].)
Coercive supplemental instructions to a divided jury violate the Due Process Clause and the defendant’s right to a fair trial. (See e.g., Weaver v. Thompson (9th Cir. 1999) 197 F3d 359 [where, after four hours of deliberation following a full day of trial, the jury asked whether it must reach a verdict in all counts and the bailiff responded “yes,” and where the jury returned a guilty verdict on all counts five minutes after the bailiff responded, the bailiff’s comment amounted to a coercive Allen charge and violated Weaver’s due process rights]; Smalls v. Batista, 191 F3d 272 [supplemental charge to jury divided 11 to 1 was unconstitutionally coercive because it “both (1) obligated the jurors to convince one another that one view was superior to another, and (2) failed to remind those jurors not to relinquish their own conscientiously held beliefs” ].)
This request is also based on the 14th Amendment’s Due Process Clause which is violated by:
(1) The arbitrary denial of a state created right. (Hicks v. Oklahoma (1980) 447 US 343 [65 LEd2d 175; 100 SCt 2227].) [See also FORECITE CG 6.3.]
(2) Multiple errors of state law which cumulatively render the trial unfair. (Greer v. Miller (1987) 483 US 756, 765 [107 SCt 3092; 97 LEd2d 618]; Taylor v. Kentucky (1978) 436 US 478, 488 [98 SCt 1930; 56 LEd2d 468]; Mak v. Blodgett (9th Cir. 1992) 970 F2d 614, 622; People v. Hill (1998) 17 C4th 800, 844-45.) [See also FORECITE CG 6.4.]
Furthermore, because this instruction request is necessary to assure the reliability of the jury’s disposition of this case, it is required by the above provisions of the federal constitution. (See generally Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354]; White v. Illinois (1992) 502 US 346, 363-64 [112 SCt 736; 116 LEd2d 848]; Donnelly v. DeChristoforo (1974) 416 US 637, 646 [94 SCt 1868; 40 LEd2d 431]; Thompson v. City of Louisville (1960) 362 US 199, 204 [80 SCt 624; 4 LEd2d 654].) [See also FORECITE CG 1.14.]
If this instruction request is not granted, there is a reasonable likelihood that the jury will apply the instructions in a way that will prejudicially violate the defendant’s federal constitutional rights. (Estelle v. McGuire (1991) 502 US 62 [116 LEd2d 385; 112 SCt 475]; McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 839.)
ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases additional federal constitutional claims will apply, above and beyond the claims discussed above. (Insert appropriate grounds into Points and Authorities including, but not limited to, those applicable from FORECITE (PG VII(I)(c)][Constitutional Grounds: Death Penalty].)
CG 10.3 Comment, Argument Or Undue Emphasis.
See FORECITE CG 5.4.1, 5.42 and 5.4.3.
CG 10.4 Competency Of Judge.
CAVEAT: To properly preserve a federal constitutional claim, the defendant must explain how the constitutional provision is violated under the circumstances of the case. Therefore, the issues, language and authorities included in FORECITE’s Constitutional Grounds are not a substitute for individual consideration and presentation of each constitutional claim on a case-by-case basis. Counsel should also independently consider and research whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.
(See FORECITE CG Table of Contents [PG VII(I)(a)] for a partial list of other potential constitutional grounds.)
*Insert bold text into Points and Authorities:
This request is based, inter alia, on the Due Process, Trial By Jury, Confrontation, Compulsory Process and Right to Counsel Clauses of the California Constitution (Art I, §§7, 15 and 16) and the federal constitution (5th, 6th and 14th Amendments), as applied to California through the Incorporation Doctrine. (Duncan v. Louisiana (1968) 391 US 145 [20 LEd2d 491; 88 SCt 1444]; see also Tennessee v. Lane (2004) 541 US 509, 562 [158 LEd2d 820; 124 SCt 1978].)
Unless this instructional request is granted the instruction will abridge the defendant’s rights under the above constitutional provisions by denying the defendant’s right to a mentally competent judge. “Due process implies a tribunal both impartial and mentally competent to afford a hearing.” (Jordan v. Massachusetts (1912) 225 US 167, 176 [32 SCt 651; 56 LEd 1038]; see also Summerlin v. Stewart (9th Cir. 2001) 267 F3d 926 [judicial impairment by marijuana].)
See also FORECITE CG 10.1.
This request is also based on the 14th Amendment’s Due Process Clause which is violated by:
(1) The arbitrary denial of a state created right. (Hicks v. Oklahoma (1980) 447 US 343 [65 LEd2d 175; 100 SCt 2227].) [See also FORECITE CG 6.3.]
(2) Multiple errors of state law which cumulatively render the trial unfair. (Greer v. Miller (1987) 483 US 756, 765 [107 SCt 3092; 97 LEd2d 618]; Taylor v. Kentucky (1978) 436 US 478, 488 [98 SCt 1930; 56 LEd2d 468]; Mak v. Blodgett (9th Cir. 1992) 970 F2d 614, 622; People v. Hill (1998) 17 C4th 800, 844-45.) [See also FORECITE CG 6.4.]
Furthermore, because this instruction request is necessary to assure the reliability of the jury’s disposition of this case, it is required by the above provisions of the federal constitution. (See generally Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354]; White v. Illinois (1992) 502 US 346, 363-64 [112 SCt 736; 116 LEd2d 848]; Donnelly v. DeChristoforo (1974) 416 US 637, 646 [94 SCt 1868; 40 LEd2d 431]; Thompson v. City of Louisville (1960) 362 US 199, 204 [80 SCt 624; 4 LEd2d 654].) [See also FORECITE CG 1.14.]
If this instruction request is not granted, there is a reasonable likelihood that the jury will apply the instructions in a way that will prejudicially violate the defendant’s federal constitutional rights. (Estelle v. McGuire (1991) 502 US 62 [116 LEd2d 385; 112 SCt 475]; McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 839.)
ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases additional federal constitutional claims will apply, above and beyond the claims discussed above. (Insert appropriate grounds into Points and Authorities including, but not limited to, those applicable from FORECITE (PG VII(I)(c)] [Constitutional Grounds: Death Penalty].)
