PG VII(I)(b) Grounds For All Cases—Capital and Non-Capital
TABLE OF CONTENTS
CG 5 Evidence And Witnesses
CG 5.1 Highly Prejudicial Or Inflammatory Evidence
CG 5.2 [Reserved]
CG 5.3 Impairing Jury’s Assessment Of Witness Credibility
CG 5.3.1 Aranda/Bruton
CG 5.3.2 Super Confrontation
CG 5.3.3 Hearsay Violation As Confrontation Violation
CG 5.4 Argumentative, Improper Comment, Undue Emphasis Of Evidence
CG 5.4.1 Instructions That Suggest An Opinion as To An Essential Fact, An Element Or Guilt
CG 5.4.2 Argumentative Instructions Not Suggesting Opinion On Guilt
CG 5.4.3 Undue Emphasis Of Specific Evidence
CG 5.5 Defendant’s Statements/Adoptive Admissions
CG 5.6 Extraneous Evidence
CG 5.7 Preliminary Facts
CG 5.8 Preliminary Factual Finding: Non-Element
CG 5.9 Uncharged Acts: Propensity, Priors
CG 5.10 Right To Jury Consideration Of Evidence
CG 5.11 Eyewitness Identification
CG 5.12 Factors To Consider Not Exclusive
CG 5.13 Due Process Underpinnings Of Accomplice Cautionary Instruction
CG 5.14 Corpus Delicti
CG 5.15 Failure To Explain Or Deny
CG 5.16 Consciousness Of Guilt
CG 5.17 Motive
CG 5.18 Reverse Consciousness Of Guilt
CG 5.19 Unjoined Perpetrators
CG 5.20 Dog Tracking
CG 5.21 Uncharged Offenses: EC 1101(b)
CG 5.22 Possession Of Stolen Property
Return to Constitutional Grounds Table of Contents.
CG 5 Evidence And Witnesses.
CG 5.1 Highly Prejudicial Or Inflammatory Evidence.
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 permitting the jurors to consider highly prejudicial or inflammatory evidence. (See Dawson v. Delaware (1992) 503 US 159, 167-68 [112 SCt1093; 117 LEd2d 309]; see also Krulewitch v. U.S. (1949) 336 US 440, 444-45 [69 SCt 716; 93 LEd 790] [recognizing unfairness of exposing jury to prejudicial evidence of accomplice’s guilt]; McKinney v. Rees (9th Cir. 1993) 993 F2d 1378, 1380-82; Dudley v. Duckworth (7th Cir. 1988) 854 F2d 967; Ferrier v. Duckworth (7th Cir. 1990) 902 F2d 545 .)
Jury consideration of such evidence reduces the fairness and reliability of the verdict and lessens the prosecution’s burden. (See People v. Garceau (1993) 6 C4th 140, 209-10 conc. opn. [permitting jury to improperly consider other crimes evidence to show criminal propensity lessened the prosecution’s burden in violation of the federal constitution].)
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 5.2 [Reserved]
CG 5.3 Impairing Jury’s Assessment Of Witness Credibility.
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].)
Confrontation And Trial By Jury_ Unless this instructional request is granted the instruction will abridge the defendant’s rights under the above constitutional provisions by failing to assure that the jury will fairly and reliably assess witness credibility. “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].)
Procedures, jury instructions or the absence of jury instructions which result in the impairment of the jury’s central function of assessing the credibility of witnesses may implicate the defendant’s federal constitutional right to trial by jury. (See Franklin v. Henry (9th Cir. 1997) 122 F3d 1270, 1273 [error in excluding a statement relating to the credibility of a child witness was of constitutional magnitude based on Crane v. Kentucky (1986) 476 US 683, 690-91 [106 SCt 2142; 90 LEd2d 636]]; U.S. v. Bloome (E.D.N.Y. 1991) 773 FSupp 545, 547 [opportunity for jury to appraise the credibility of witnesses safeguards the defendant’s rights]; People v. Robinson (CO 1993) 874 P2d 453, 459 [the trial court may not, consistent with the due process rights of defendant to a fair trial before an impartial judge and jury, express to the jury any personal opinion of credibility of witness and should scrupulously avoid even an appearance of partiality].)
“No matter how lightly the court may regard the testimony offered on behalf of the defense, the question of its weight and the credibility of the witnesses is to be determined by the jury, properly instructed as to the law. Unless this is followed, a defendant is deprived of his constitutional right of a trial by jury.” (Gallegos v. People (CO 1957) 316 P2d 884, 885; see also State v. Joyner (CT 1992) 625 A2d 791, 805 [criminal defendant has constitutional right to reveal facts to the jury regarding the mental condition of a witness which may reasonably affect the credibility of the witness]; Taylor v. Illinois (1988) 484 US 400, 430, fn 5 [108 SCt 646; 98 LEd2d 798] (dis. opn. of Brennan, J.) [“The constitutional right to a jury trial would mean little if a judge could exclude any defense witness whose testimony he or she did not credit.” ].)
Due Process: See FORECITE CG 6.11.
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 5.3.1 Aranda/Bruton.
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 permitting or encouraging conviction of the accused based on evidence which he or she has not had an opportunity to challenge and/or confront. (See Bruton v. United States (1968) 391 US 123 [88 SCt 1620; 20 LEd2d 476]; see also Imwinkelried & Garland, Exculpatory Evidence (Lexis, 2nd ed. 1996) §2-2(d) [6th Amendment right to confrontation].)
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 5.3.2 Super Confrontation.
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 permitting or encouraging the jurors to consider evidence which the defendant has not been allowed to confront. Evidence which state court finds properly admitted under state exception to hearsay rule may nonetheless violate the Confrontation Clause of the 6th Amendment. (Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354]; Lilly v. Virginia (1999) 527 US 116 [144 LEd2d 117; 119 SCt 1887] [admission of the untested confession of an accomplice incriminating petitioner as a declaration against interest under state law violated the Confrontation Clause]; Dutton v. Evans (1970) 400 US 74 [27 LEd2d 213; 91 SCt 210]; Thomas v. Hubbard (9th Cir. 2001) 273 F3d 1164; Whelchel v. State of Washington (9th Cir. 2000) 232 F3d 1197 [unavailable codefendants’ tape-recorded statements to the police in which they attempted to minimize their own culpability were “textbook examples” of codefendant statements that are presumptively unreliable, and their admission violated petitioner’s rights under the Confrontation Clause]; Offor v. Scott (5th Cir. 1995) 72 F3d 30 [admission of videotaped police interview of child at which no representative of defendant was present violated the Confrontation Clause]; Webb v. Lewis (9th Cir. 1994) 44 F3d 1387 [admission of videotaped interview of victim violated Confrontation Clause]; Ring v. Erikson (8th Cir. 1992) 983 F2d 818 [child-victim’s videotaped statement to doctor admitted under state law medical-diagnosis-or-treatment exception violated Confrontation Clause]; Reed v. Thalacker (8th Cir. 1999) 198 F3d 1058 [child-victim’s statements to her mother and babysitter accusing her father of molesting her, admitted under state law excited utterance exception violated defendant’s 6th Amendment rights]; People v. Kons (2003) 108 CA4th 514; .)
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 5.3.3 Hearsay Violation As Confrontation Violation.
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 improperly permitting or encouraging the jurors to consider hearsay evidence which the defendant has not been allowed to confront. Hearsay evidence improperly admitted under state rules of evidence may also violate the Confrontation Clause. (See Bains v. Cambra (9th Cir. 2000) 204 F3d 964, 973-974; Sherley v. Seabold (6th Cir. 1991) 929 F2d 272; Ferrier v. Duckworth (7th Cir. 1990) 902 F2d 545, 548; Gaines v. Thieret (7th Cir. 1988) 846 F2d 402, 405; Ellison v. Sachs (4th Cir. 1985) 769 F2d 955; Gregory v. State of North Carolina (4th Cir. 1990) 900 F2d 705; United States v. Chu Kong (9th Cir. 1991) 935 F2d 990.)
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 5.4 Argumentative, Improper Comment, Undue Emphasis Of Evidence.
CG 5.4.1 Instructions That Suggest An Opinion As To An Essential Fact, An Element Or Guilt.
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 emphasizing or commenting on specific evidence or theories of the evidence.
Comment On The Evidence: This instruction is required by the federal constitutional rights to a fair and reliable trial by jury and to due process (5th, 6th and 14th Amendments). These provisions require that the trial judge be fair and impartial and that the jury not convict unless the prosecution has fairly and reliably proven every element of the charge beyond a reasonable doubt.
Although the United States Supreme Court has held that federal judges may comment on the evidence (see Quercia v. U.S. (1933) 289 US 466, 469-70 [53 SCt 698; 77 LEd 1321]; U.S. v. Murdock (1933) 290 US 389, 394 [54 SCt 223; 78 LEd 381]), that practice may unduly influence the jury. (See Alberty v. U.S. (1896) 162 US 499, 511 [16 SCt 864; 40 LEd 1051] [murder conviction reversed because the trial court’s jury instruction overly emphasized the significance of the defendant’s flight]; see also U.S. v. Fuller (4th Cir. 1998) 162 F3d 256, 260.)
“In expressing an opinion about the guilt of the defendant_ a matter structurally committed to the jury for determination_ the trial judge tends to erode the parties’ perception of impartiality and risks unduly influencing the jury.” (Fuller, 162 F3d at 260; see also Powell v. Galaza (9th Cir. 2003) 328 F3d 558 [trial court’s mid-trial instruction that defendant’s own testimony established criminal intent violated 6th Amendment right to a jury determination of the elements of the offense]; cf., 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]; United States v. Shwayder (9th Cir. 2002) 312 F3d 1109 [prosecution’s use of guilt-assuming hypothetical questions undermines the presumption of innocence and violates due process].)
Furthermore, judicial comment also violates these rights to the extent that the comment serves to direct the jury’s finding of any essential fact. (See 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” ]; see also U.S. v. Gaudin (1995) 515 US 506, 520-23 [115 SCt 2309; 132 LEd2d 444]; In re Winship (1970) 397 US 358, 364 [90 SCt 1068; 25 LEd2d 368].) [See also FORECITE CG 10.1.]
Argumentative: See FORECITE CG 5.4.2.
Undue Emphasis: See FORECITE CG 5.4.2.
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 5.4.2 Argumentative Instructions Not Suggesting Opinion On Guilt.
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 making comments, suggestions or implications about the evidence, evidentiary theories or other matters which unfairly favor the prosecution.
Even if judicial comment does not directly express an opinion about the defendant’s guilt, an instruction that is one-sided or unbalanced violates the defendant’s federal constitutional rights under the 5th, 6th and 14th Amendments to due process and a fair, impartial trial by jury. (See Starr v. U.S. (1894) 153 US 614, 626 [14 SCt 919; 38 LEd 841] [trial judge must use great care so that judicial comment does not mislead and “especially that it [is] not … one-sided” ]; see also Quercia v. U.S. (1933) 289 US 466, 470 [53 SCt 698; 77 LEd 1321]; U.S. v. Laurins (9th Cir. 1988) 857 F2d 529, 537 [judge’s comments require a new trial if they show actual bias or the jury “perceived an appearance of advocacy or partiality” ].)
The Constitution not only gives a criminal defendant a right to have the jury determine his guilt of every element of a crime for which he is charged, but also to have the trial before an 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].)
“Instructions must not, therefore, be argumentative or slanted in favor of either side [the instructions] should neither ‘unduly emphasize the theory of the prosecution, thereby de-emphasizing proportionally the defendant’s theory’ … nor overemphasize the importance of certain evidence or certain parts of the case.” (U.S. v. McCracken (5th Cir. 1974) 488 F2d 406, 414; see also U.S. v. Neujahr (4th Cir. 1999) 173 F3d 853; U.S. v. Dove (2nd Cir. 1990) 916 F2d 41, 45; State v. Pecora (MT 1980) 619 P2d 173, 175 [in prosecution for sexual intercourse without consent, giving instruction which related to resistance required in order to prove lack of consent and was argumentative and commented on the evidence].)
These constitutional provisions are also implicated by allowing instructions which incorporate the prosecution’s argument but disallowing similar instructions offered by the defendant which incorporate the defense arguments. The Due Process Clauses of the state and federal constitutions prohibit trial procedures which unjustifiably favor the prosecution. (See Wardius v. Oregon (1973) 412 US 470 [93 SCt 2208; 37 LEd2d 82]; see also United States v. Harbin (7th Cir. 2001) 250 F3d 532.) Although Wardius involved reciprocal discovery rights, the same principle should apply to jury instructions. (See Cool v. United States (1972) 409 US 100, 103 n. 4 [34 LEd2d 335; 93 SCt 354] [reversible error to instruct jury that it may convict solely on the basis of accomplice testimony but not that it may acquit based on the accomplice testimony]; People v. Moore (1954) 43 C2d 517, 526-27 [275 P2d 485] [“There should be absolute impartiality as between the People and the defendant in the matter of instructions” ]; Reagan v. United States (1895) 157 US 301, 310 [15 SCt 610; 39 LEd 709].) Therefore, instructions which give an unfair advantage to the prosecution violate the “balance” required by Wardius and implicate due process. (14th Amendment.)
NOTE: If the instruction constitutes a comment on the defendant’s guilt see FORECITE CG 5.4.1 [Instructions That Suggest An Opinion as To An Essential Fact, An Element Or Guilt].
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 5.4.3 Undue Emphasis Of Specific Evidence.
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 putting undue emphasis on particular evidence and permitting and/or encouraging the jurors to convict the defendant without having fully and fairly considered all the other evidence. (See Conde v. Henry (9th Cir. 1999) 198 F3d 734, 739-42 [the right to present evidence is meaningless if the jury is not required to consider it]; People v. Cox (1991) 53 C3d 618, 695-96 [“defendant as well as the prosecution have a right to the reasoned, dispassionate and considered judgment of the jury” ]; People v. Manchetti (1946) 29 C2d 452, 462 [175 P2d 533, 539-40].)
These constitutional provisions are also violated by instructions which unduly favor the prosecution. (See Wardius v. Oregon (1973) 412 US 470 [93 SCt 2208; 37 LEd2d 82]; see also United States v. Harbin (7th Cir. 2001) 250 F3d 532.) Although Wardius involved reciprocal discovery rights, the same principle should apply to jury instructions. (See Cool v. United States (72) 409 US 100, 103 n. 4 [34 LEd2d 335; 93 SCt 354] [reversible error to instruct jury that it may convict solely on the basis of accomplice testimony but not that it may acquit based on the accomplice testimony]; People v. Moore (1954) 43 C2d 517, 526-27 [275 P2d 485] [“There should be absolute impartiality as between the People and the defendant in the matter of instructions” ]; Reagan v. United States (1895) 157 US 301, 310 [15 SCt 610; 39 LEd 709].) Therefore, instructions which give an unfair advantage to the prosecution violate the “balance” required by Wardius and implicate due process. (14th Amendment.)
The Constitution not only gives a criminal defendant a right to have the jury determine his guilt of every element of a crime for which he is charged, but also to have the trial before an 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].)
“Instructions must not, therefore, be argumentative or slanted in favor of either side [the instructions] should neither ‘unduly emphasize the theory of the prosecution, thereby de-emphasizing proportionally the defendant’s theory’ … nor overemphasize the importance of certain evidence or certain parts of the case.” (U.S. v. McCracken (5th Cir. 1974) 488 F2d 406, 414; see also U.S. v. Neujahr (4th Cir. 1999) 173 F3d 853; U.S. v. Dove (2nd Cir. 1990) 916 F2d 41, 45; State v. Pecora (MT 1980) 619 P2d 173, 175 [in prosecution for sexual intercourse without consent, giving instruction which related to resistance required in order to prove lack of consent and was argumentative and commented on the evidence].)
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 5.5 Defendant’s Statements/Adoptive Admissions.
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 permitting or encouraging the jurors to consider unreliable statements or adoptive admissions of the defendant.
The Due Process, Confrontation, Compulsory Process and Counsel Clauses of the federal constitution require that a jury verdict which imposes criminal liability be reliable.
Due Process: “Reliability is … a due process concern.” (White v. Illinois (1992) 502 US 346, 363-64 [112 SCt 736; 116 LEd2d 848].) Hence, the Due Process clauses of the federal constitution (5th and 14th Amendments) require that criminal convictions be fair and reliable. (See Donnelly v. DeChristoforo (1974) 416 US 637, 646 [94 SCt 1868; 40 LEd2d 431] and cases collected at fn 22 [Due Process “cannot tolerate” convictions based on false evidence]; Thompson v. City of Louisville (1960) 362 US 199, 204 [80 SCt 624; 4 LEd2d 654].)
Confrontation: Reliability is also a confrontation concern. (See Lilly v. Virginia (1999) 527 US 116 [144 LEd2d 117; 119 SCt 1887, 1894]; Idaho v. Wright (1990) 497 US 805; Ring v. Erikson (8th Cir. 1992) 983 F2d 818; People v. Kons (2003) 108 CA4th 514.)
See also FORECITE PG VII(C)(50).
Counsel: Effective representation of counsel is an essential component of the adversarial process. (See generally Strickland v. Washington (1984) 466 US 668 [80 LEd2d 674; 104 SCt 2052.) In turn, the A adversarial testing: is essential to a reliable jury verdict. (SeeCrawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354].)
Compulsory Process: See e.g., Crane v. Kentucky (1986) 476 US 683 [90 LEd2d 636; 106 SCt 2142] [denial of opportunity to challenge reliability of confession violated right to present a defense.)
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 5.6 Extraneous Evidence.
See FORECITE CG 7.3 and CG 7.4.
CG 5.7 Preliminary Facts.
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 instructions will abridge the defendant’s rights under the above constitutional provisions by:
(1) Failing to assure that the jurors will apply the correct burden of proof to preliminary facts which are essential to proving the charged crime or an element of that crime. (In re Winship (1970) 397 US 358, 364 [90 SCt 1068; 25 LEd2d 368]; see also Apprendi v. New Jersey (2000) 530 US 466 [120 SCt 2348; 147 LEd2d 435]; U.S. v. Gaudin (1995) 515 US 506, 514 [115 SCt 2309; 132 LEd2d 444];Carella v. California (1989) 491 US 263, 265-66 [105 LEd2d 218; 109 SCt 2419; Henderson v. Kibbe (1977) 431 US 145, 153 [97 SCt 1730; 52 LEd2d 203].) “If the Sixth Amendment right to have a jury decide guilt and innocence means anything … it means that the facts essential to conviction must be proven beyond the jury’s reasonable doubt…” (U.S. v. Voss (8th Cir. 1986) 787 F2d 393, 398.) A jury verdict, if based on an instruction that allows it to convict without properly finding the facts supporting each element of the crime, is error. (Neder v. U.S. (1999) 527 US 1, 12 [119 SCt 1827; 144 LEd2d 35]; Sandstrom v. Montana (1979) 442 US 510 [99 SCt 2450; 61 LEd2d 39]; U.S. v. Piche (4th Cir. 1992) 981 F2d 706, 716; U.S. v. Hayward (DC Cir. 1969) 420 F2d 142, 144;People v. Figueroa (1986) 41 C3d 714.)
(2) Arbitrarily denying the defendant the state created right to full and correct jury instruction on preliminary facts. Even though Evidence Code 403 is a California statute, the Due Process Clause of the federal constitution (14th Amendment) prohibits the arbitrary denial of a state created right. (See (Board of Pardons v. Allen (1987) 482 US 369, 373-78 [107 SCt 2415; 96 LEd2d 303]; Daniels v. Williams (1986) 474 US 327 , 329-30 [106 SCt 662; 88 LEd2d 662]; Hicks v. U.S. (1980) 447 US 343 [100 SCt 2227; 65 LEd2d 175].)
(3) Abridging the defendant’s right to require the jurors to agree on “a discrete set of actions is essential to ensure that the defendant is guilty beyond a reasonable doubt of some specific illegal conduct. [Citation].” (U.S. v. Edmonds (3rd Cir. 1996) 80 F3d 810, 819; see also Eric S. Miller, Compound/Complex Criminal Statutes and the Constitution: Demanding Unanimity as to Predicate Acts (1995) 104 Yale L.J. 2277 (1995).)
One doctrinal basis for the 6th Amendment right to jury unanimity is protection of the reasonable doubt standard. “The requirement that all twelve jurors be in agreement as to the defendant’s guilt is employed to give substance to the reasonable-doubt standard; if a verdict is less than unanimous the dissention tends to show that a reasonable doubt exists as to the criminal activity charged.” (U.S. v. Correa-Ventura (5th Cir. 1993) 6 F3d 1070, 1077.)
As a matter of due process, a defendant in a felony criminal case is entitled to a unanimous jury verdict, one “in which all 12 jurors concur, beyond a reasonable doubt, as to each count charged.” (People v. Jones (1990) 51 C3d 294, 305.)
The unanimity requirement codifies this constitutional mandate. (People v. Jones, supra, 51 C3d at p. 321; accord, e.g., People v. Ferguson (1982) 129 CA3d 1014, 1020.) It is grounded in the fundamental principle that a person can only be held criminally culpable for specific acts he committed that constitute a violation of the criminal law. (See, e.g., People v. Williams (1901) 133 C 165, 168-69, cited in People v. Davis (1992) 8 CA4th 28, 41; People v. Pitts (1990) 233 CA3d 606, 902; People v. Salvato (1991) 234 CA3d 870, 880; Hamling v. United States (1974) 418 US 87, 117-18 [94 SCt 2887, 41 LEd2d 590].) It is also grounded in the constitutional standard of proof beyond a reasonable doubt (People v. DeLetto (1983) 147 CA3d 458, 471-72), which is a fundamental element of due process of law. (In re Winship (1970) 397 US 358, 364 [90 SCt 1068, 25 LEd2d 368].) As a result, “[w]hen a jury is given more than one factual basis which might constitute the crime charged, it must be instructed along the lines of CALJIC No. 17.01. The jury must unanimously convict for the same act or actions.” (People v. Metheney (1984) 154 CA3d 555, 562.)
It has been recognized that the erroneous omission of a unanimity instruction violates federal due process rights. (People v. Melhado (1998) 60 CA4th 1529, 1534; People v. Brown (1996) 42CA4th 1493, 1501-02; People v. Thompson (1995) 36 CA4th 843, 853; People v. Deletto (1983) 147 CA3d 458, 471-72; State v. Arceo (HI 1996) 928 P2d 843, 869-870; State v. Furutani (HI 1994) 873 P2d 51, 58.) This is so because “[s]ubstantial agreement on a discrete set of actions is essential to insure that the defendant is guilty beyond a reasonable doubt of some specific illegal conduct.” (U.S. v. Edmonds (3d Cir. 1996) 80 F3d 810, 819; see also Hamling v. U.S. (1974) 418 US 87, 117-18 [94 SCt 2887; 41 LEd2d 590]; U.S. v. Hess (1888) 124 US 483, 487 [8 SCt 571; 31 LEd2d 516]; U.S. v. Echeverri (3rd Cir. 1988) 854 F2d 638, 642.)
The jury unanimity rule’s common-law underpinnings are another basis for including the rule within due process provisions of the Fourteenth Amendment. As recognized by the United States Supreme Court, courts should look to the common law to determine whether the defendant has a vested due process right in a particular defense. (Montana v. Egelhoff (1996) 518 US 37, 47 [116 SCt 2013; 135 LEd2d 361] [plurality opinion]; Schad v. Arizona (1991) 501 US 624, 640 [111 SCt 2491; 115 LEd2d 555]; Edmonds, 80 F3d at 810 [“[D]ue process is defined in part by historical practice”].) [See also FORECITE CG 6.17.]
Because the preliminary/predicate fact at issue in the present case is a necessary element of the charged offense the above constitutional provisions apply to it. (Richardson v. U.S. (1999) 526 US 813 [143 LEd2d 985; 119 SCt 1707]; see also McKoy v. North Carolina (1990) 494 US 433, 445 [110 SCt 1227; 108 LEd2d 369] (Blackmun, concurring) [there is no general requirement that the jury reach unanimous agreement on the preliminary factual issues but there is a general consensus among the federal circuits that there must be substantial agreement as to the principle factual elements underlying a specified offense]; U.S. v. Duncan (6th Cir. 1988) 850 F2d 1104; U.S. v. Fawley (7th Cir. 1998) 137 F3d 458 [due process requires juror unanimity as to every element of the charge].)
(4) Allowing the jurors to consider inadmissible evidence or to consider admissible evidence for the wrong purpose thus depriving the defendant of a fair trial, due process notice and an opportunity to confront the evidence relied on by the jury to convict. (See generally, Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354] [right to confrontation]; Lilly v. Virginia (1999) 527 US 116, 139 [119 SCt 1887; 144 LEd2d 177] [same]; Gardner v. Florida (1977) 430 US 349 [51 LEd2d 393; 97 SCt 1197][notice of evidence relied on by sentencing judge]; Mach v. Stewart (9th Cir. 1998) 137 F3d 630 [jury pool tainted by inadmissible evidence]; United States v. Schuler (9th Cir. 1987) 813 F2d 978 [prosecutor’s comments on defendant’s non-testimonial demeanor violated due process].)
“When a jury considers facts that have not been introduced in evidence, a defendant has effectively lost the rights of confrontation, cross-examination, and the assistance of counsel with regard to jury consideration of the extraneous evidence. In one sense, the violation may be more serious than where these rights are denied at some other stage of the proceedings because the defendant may have no idea what new evidence has been considered. It is impossible to offer evidence to rebut it, to offer a curative instruction, to discuss its significance in argument to the jury, or to take other tactical steps that might ameliorate its impact.” (Gibson v. Clannon (9th Cir. 1980) 633 F2d 851, 853; see also Sassounian v. Roe (9th Cir. 2000) 230 F3d 1097; Eslaminia v. White (9th Cir. 1998) 136 F3d 1234; Jeffries v. Wood (9th Cir. 1997) (en banc) 114 F3d 1484, 1490-1492; Marino v. Vasquez (9th Cir. 1987) 812 F2d 499.)
[See also FORECITE CG 7.3 and CG 7.4.]
This request is also based on the 14th Amendment’s Due Process Clause which is violated by:
(A) 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.]
(B) 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 5.8 Preliminary Factual Finding: Non-Element.
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 arbitrarily denying the defendant the state created right to full and correct jury instruction on preliminary facts.
Even though EC 403 is a California statute, the Due Process Clause of the federal constitution (14th Amendment) prohibits the arbitrary denial of a state created right. (See (Board of Pardons v. Allen (1987) 482 US 369, 373-78 [107 SCt 2415; 96 LEd2d 303]; Daniels v. Williams (1986) 474 US 327 , 329-30 [106 SCt 662; 88 LEd2d 662]; Hicks v. U.S. (1980) 447 US 343 [100 SCt 2227; 65 LEd2d 175].)
This request is also based on the 14th Amendment’s Due Process Clause which is violated by 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 5.9 Uncharged Acts: Propensity, Priors.
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 permitting or encouraging the jurors to improperly consider and rely upon uncharged acts alleged against the defendant. The Due Process Clause of the federal constitution which is abridged by a state rule that A offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” (Medina v. California (1992) 505 US 437, 445-46 [112 SCt 2572;120 LEd2d 353].) The use of A other acts” evidence as character evidence to show that the defendant has criminal propensities, and therefore is by inference likely to have committed the currently charged crimes, has been universally condemned as contrary to firmly established principles of Anglo-American jurisprudence for more than three-hundred years. (See e.g., McKinney v. Rees (9th Cir. 1993) 993 F2d 1378, 1380.)
The United States Supreme Court has recognized at least twice the unanimous tendency of courts that follow the common law tradition to disallow resort by the prosecution to evidence of a defendant’s evil character to establish the probability of his guilt and strongly suggests that introduction of prior crimes evidence solely for the purpose of showing a criminal disposition would violate the due process clause. (Michelson v. U.S. (1948) 335 US 469 [69 SCt 213; 93 LEd 168]; Bell v. Texas (1967) 385 US 554, 572-74 [87 SCt 648; 17 LEd2d 606], conc. and diss. op. of Warren, C.J.; see also Panzavecchia v. Wainwright (5th Cir. 1981) 658 F2d 337; People v. Kelley (1967) 66 C2d 232, 238-39.)
Hence, it has been held that a statute permitting evidence of other charged or uncharged crimes involving victims under 14 years of age to be admitted to show criminal propensity violated the defendant’s constitutional right to be tried only on the charged offense. (State v. Burns (MO 1998) 978 SW2d 759, 760-61.) Evidence of uncharged offenses to show propensity is inadmissible because it fosters conviction based on such propensity without regard to whether the defendant is guilty of the charged crime. (Ibid.; but see U.S. v. Enjady (10th Cir. 1998) 134 F3d 1427, 1433-34; People v. Falsetta (1999) 21 C4th 903 [rejected due process].)
Even if propensity evidence may be considered, the jury instructions must assure that the defendant is not convicted solely upon such evidence and that the defendant’s guilt has been proven beyond a reasonable doubt. (See Gibson v. Ortiz (9th Cir. 2004) 387 F3d 812.)
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 5.10 Right To Jury Consideration Of Evidence.
See FORECITE CG 7.1.
CG 5.11 Eyewitness Identification.
See FORECITE CG 4.6.
CG 5.12 Factors To Consider Not Exclusive.
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 permitting and/or encouraging the jurors to convict the defendant without having fully and fairly considered all the evidence. (See Conde v. Henry (9th Cir. 1999) 198 F3d 734, 739-42 [the right to present evidence is meaningless if the jury is not required to consider it]; People v. Cox (1991) 53 C3d 618, 695-96 [A defendant as well as the prosecution have a right to the reasoned, dispassionate and considered judgment of the jury” ]; People v. Manchetti (1946) 29 C2d 452, 462.)
[See also FORECITE CG 7.1.]
These constitutional provisions are also violated by instructions which unduly favor the prosecution. (See Wardius v. Oregon (1973) 412 US 470 [93 SCt 2208; 37 LEd2d 82]; see also United States v. Harbin (7th Cir. 2001) 250 F3d 532.) Although Wardius involved reciprocal discovery rights, the same principle should apply to jury instructions. (See Cool v. United States (1972) 409 US 100, 103 n. 4 [34 LEd2d 335; 93 SCt 354] [reversible error to instruct jury that it may convict solely on the basis of accomplice testimony but not that it may acquit based on the accomplice testimony]; People v. Moore (1954) 43 C2d 517, 526-27 [275 P2d 485] [A There should be absolute impartiality as between the People and the defendant in the matter of instructions” ]; Reagan v. United States (1895) 157 US 301, 310 [15 SCt 610; 39 LEd 709].) Therefore, instructions which give an unfair advantage to the prosecution violate the A balance” required by Wardius and implicate due process. (14th Amendment.)
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 5.13 Due Process Underpinnings Of Accomplice Cautionary Instruction.
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 permitting and/or encouraging the jurors to improperly consider and rely upon unreliable accomplice testimony. The due process roots of the accomplice cautionary instruction are well documented. (See People v. Guiuan (1997) 18 C4th 558, 564-69.) The concept is recognized as an important component of the defendant’s right to a fair trial and to a reliable jury verdict. (Ibid.)
Accordingly, the failure to properly instruct the jury on accomplice testimony violates the defendant’s federal constitutional rights. (See People v. Guiuan, 18 C4th 558; see also generally Montana v. Egelhoff (1996) 518 US 37, 43 [136 LEd2d 361; 116 SCt 2013] [historical practice is primary guide in determining A fundamental principles of justice” for due process analysis]; see also Medina v. California (1992) 505 US 437, 446 [120 LEd2d 353; 112 SCt 2572]; Schad v. Arizona (1991) 501 US 624 [115 LEd2d 555; 111 SCt 2491].)
This request is also based on the 14th Amendment’s Due Process Clause which applies to:
(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 5.14 Corpus Delicti.
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 permitting and/or encouraging the jurors to consider and rely upon unreliable evidence. (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.]
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 CCG 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.]
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 5.15 Failure To Explain Or Deny.
See FORECITE CG 5.4.3 and CG 6.5.
CG 5.16 Consciousness Of Guilt.
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 improperly emphasizing a portion of the prosecution evidence and theory of guilt and improperly arguing, and commenting on, specific evidence.
1. Improperly Usurping The Jurors’ Function: Although the United States Supreme Court has held that federal judges may comment on the evidence (see Quercia v. U.S. (1933) 289 US 466, 469-70 [53 SCt 698; 77 LEd 1321]; U.S. v. Murdock (1933) 290 US 389, 394 [54 SCt 223; 78 LEd 381]), that practice may unduly influence the jury. (See Alberty v. U.S. (1896) 162 US 499, 511 [16 SCt 864; 40 LEd 1051] [murder conviction reversed because the trial court’s jury instruction overly emphasized the significance of the defendant’s flight]; see also U.S. v. Fuller (4th Cir. 1998) 162 F3d 256, 260.)
AIn expressing an opinion about the guilt of the defendant_ a matter structurally committed to the jury for determination_ the trial judge tends to erode the parties’ perception of impartiality and risks unduly influencing the jury.” (Fuller, 162 F3d at 260; see also Powell v. Galaza (9th Cir. 2003) 328 F3d 558 [trial court’s mid-trial instruction that defendant’s own testimony established criminal intent violated 6th Amendment right to a jury determination of the elements of the offense]; cf., 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]; United States v. Shwayder (9th Cir. 2002) 312 F3d 1109 [prosecution’s use of guilt-assuming hypothetical questions undermines the presumption of innocence and violates due process].)
Hence, by undermining the fairness and impartiality of the jury’s decision, a trial judge’s comments on the evidence may violate the defendant’s federal constitutional rights (5th, 6th and 14th Amendments) to due process and fair trial by jury. [See FORECITE CG 10.1 [Fair And Unbiased Judge].)
2. Unduly Emphasizing The Prosecution’ s Evidence And Theory Of The Case: Insert FORECITE CG 6.5, here.
3. Depriving The Defendant Of A Fair And Impartial Judge: Insert FORECITE CG 10.1, here.
4. Urging The Jurors To Rely On An Unreliable And Irrational Inference: Insert FORECITE CG 2.3, here.
5. Reducing The Reliability Of The Trial: For all the above reasons a consciousness of guilt instruction reduces the reliability of the trial. This instruction request should be granted 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.]
[See also FORECITE CG 5.4.2 and CG 5.4.3.]
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.]
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 5.17 Motive.
[Use FORECITE CG 5.4.2.]
CG 5.18 Reverse Consciousness Of Guilt.
[Use FORECITE CG 6.5.]
CG 5.19 Unjoined Perpetrators.
[Use FORECITE CG 4.5, 5.3.]
CG 5.20 Dog Tracking.
[Use FORECITE CG 1.14.]
CG 5.21 Uncharged Offenses: EC 1101(b).
[Use FORECITE CG 5.1.]
CG 5.22 Possession Of Stolen Property.
See FORECITE CG 5.3.
