PG VII(I)(b) Grounds For All Cases—Capital and Non-Capital
TABLE OF CONTENTS
CG 6 Due Process
CG 6.1 Due Process And Notice—Generally
CG 6.2 Notice: Charging Document
CG 6.3 Arbitrary Denial Of State Created Right
CG 6.4 Cumulative Effect Of State Errors As Violation Of Federal Due Process
CG 6.5 Instructions Must Be Balanced Between Defense and Prosecution
CG 6.6 Balance Between Codefendants
CG 6.6.1 Balance: Jury Panel
CG 6.6.2 Balance: Among Instructions—No Undue Emphasis
CG 6.7 Reliability: Non-Capital Charge
CG 6.8 Prosecution Misconduct: Lost Or Destroyed Evidence
CG 6.9 Prosecution Misconduct: Brady/Kyles
CG 6.10 Prosecution Misconduct: Argument And Other Conduct During Trial
CG 6.11 Fairness: Generally
CG 6.12 Due Process: Appeal
CG 6.13 Due Process: Interpreter
CG 6.14 Due Process: Right To Fair Trial Trumps Judicial Economy
CG 6.15 Super Due Process: Right To Fair Trial Trumps Domestic Rules Of Evidence
CG 6.16 Racial Bias
CG 6.17 Due Process Applicable To Deeply Rooted Common Law Right
Return to Constitutional Grounds Table of Contents.
CG 6 Due Process.
CG 6.1 Due Process And Notice—Generally.
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 fair notice of the charges, prosecution theories or other essential matters. (See generally, Lankford v. Idaho (1991) 500 US 110, 119-27 [111 SCt 1723;114 LEd2d 173]; Kolender v. Lawson (1983) 461 US 352, 357-60 [103 SCt 1855; 75 LEd2d 903]; Gardner v. Florida (1977) 430 US 349 [51 LEd2d 393; 97 SCt 1197] [due process violated where defendant sentenced to death based on information he had not had opportunity to deny or explain]; Hamling v. U.S. (1974) 418 US 87, 117-18 [94 SCt 2887; 41 LEd2d 590]; Russell v. United States (1962) 369 US 749, 763-764 [8 LEd2d 240; 82 SCt 1038]; Lambert v. California (1957) 355 US 225 [78 SCt 240; 2 LEd2d 228] [“Ingrained in our concept of due process is the requirement of notice”]; Cole v. Arkansas (1948) 333 US 196, 201-02 [68 SCt 514; 92 LEd 644]; Lanzetta v. New Jersey (1939) 306 US 451, 453 [59 SCt 618; 83 LEd 888].)
A variance between the offense as alleged in the charging document and the evidence and instructions at trial violates the above-cited provisions of the state and federal constitutions by depriving the defendant of notice of the offense against which he must defend. (See Calderon v. Prunty (9th Cir. 1995) 59 F3d 1005, 1009-1010; Forgy v. Norris (8th Cir. 1995) 64 F3d 399, 403 [failure of information to specify basis of burglary charge prejudiced defendant and deprived him of his 6th Amendment right to be informed of the nature and cause of the accusations]; Cokely v. Lockhart (8th Cir. 1991) 951 F2d 916 [variance between information alleging rape by sexual intercourse and jury instruction permitting conviction based on intercourse or deviate sexual activity violated due process when state law at the time of trial treated latter as a separate offense]; Thomas v. Harrelson (11th Cir. 1991) 942 F2d 1530, 1531 [the constructive amendment of an indictment that occurs when the jury is permitted to convict a defendant upon a factual basis that effectively modifies an essential element of the charged crime, violates the Fifth and 6th Amendments]; Sheppard v. Rees (9th Cir. 1990) 909 F2d 1234 [instructing the jury on felony murder, over defendant’s objection, violated defendant’s 6th Amendment right to notice where the information alleged that he had violated Penal Code section 187 but did not allege felony-murder or the commission of the underlying felony and where the concept of felony-murder was never raised prior to trial, during opening statements or by the testimony of witnesses]; in accord, Tamapua v. Shimoda (9th Cir. 1986) 796 F2d 261; Givens v. Housewright (9th Cir. 1986) 786 F2d 1378, 1380; Lincoln v. Sunn (9th Cir. 1987) 807 F2d 805, 811-814; Gray v. Raines (9th Cir. 1981) 662 F2d 569, 571.)
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 6.2 Notice: Charging Document.
[Use FORECITE CG 6.1.]
CG 6.3 Arbitrary Denial Of State Created Right.
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 a state created right. This request is based, inter alia, on the Due Process Clause of the 14th Amendment which prohibit a state from arbitrarily denying its own domestic rules. (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 applies to 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 6.4 Cumulative Effect Of State Errors As Violation Of Federal Due Process.
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].)
This request is based on the Due Process Clause of the 14th Amendment which applies to state law errors that cumulatively produce a trial setting that is fundamentally unfair. (See 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]; Donnelly v. DeChristoforo (1974) 416 US 637, 642-45 [94 SCt 1868; 40 LEd2d 41]; Mak v. Blodgett (9th Cir. 1992) 970 F2d 614, 622; Marshall v. Walker (1983) 464 US 951, 962 [104 SCt 367; 78 LEd2d 327]; People v. Hill (1998) 17 C4th 800, 844-45.)
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 6.5 Instructions Must Be Balanced Between Defense And Prosecution.
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 unjustifiably favoring 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.)
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 6.6 Balance Between Codefendants.
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 failing to be balanced and impartial as between the prosecution and the defendant. (See Wardius v. Oregon (1973) 412 US 470 [93 SCt 2208; 37 LEd2d 82].) The same principles which require this balance between the defendant and the prosecution should also require balance between the defendant and other codefendants. (See e.g., U.S. v. Tagalicud (9th Cir. 1996) 84 F3d 1180, 1185-86 [using only one of several defendants as example for explaining elements of the offense improperly implied that the case against that defendant was stronger or more important].)
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 6.6.1 Balance: Jury Panel.
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].)
“Although peremptory challenges are not constitutionally required, due process may be violated by a system of challenges that is skewed toward the prosecution if it destroys the balance needed for a fair trial.” (United States v. Harbin (7th Cir. 2001) 250 F3d 532 [trial court’s allowance of prosecution’s mid-trial peremptory challenge violated due process]; see also Jiminez v. Myers (9th Cir. 1993) 40 F3d 976, 981 fn. 5 [stressing importance of balanced charge to majority and minority jurors].)
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 6.6.2 Balance: Among Instructions—No Undue Emphasis.
[Use FORECITE CG 5.4.3.]
CG 6.7 Reliability: Non-Capital Charge.
[Use FORECITE CG 1.14.]
CG 6.8 Prosecution Misconduct: Lost Or Destroyed Evidence.
[Use FORECITE CG 1.14.]
CG 6.9 Prosecution Misconduct: Brady/Kyles.
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 constitutional protection against bad faith destruction or suppression of evidence. (See Arizona v. Youngblood (1988) 488 US 51 [110 SCt 2715; 102 LEd2d 281]; California v. Trombetta (1984) 467 US 479 [104 SCt 2328; 81 LEd2d 413].) They are also violated by intentional or negligent failure to disclose potentially exculpatory evidence. (See Kyles v. Whitley (1995) 514 US 419, 435-37 [115 SCt 1555; 131 LEd2d 490]; Brady v. Maryland (1963) 373 US 83 [83 SCt 1194; 10 LEd2d 215].)
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 6.10 Prosecution Misconduct: Argument And Other Conduct During Trial.
[Use FORECITE CG 11.2.]
CG 6.11 Fairness: Generally.
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 unfair trial procedures. (See Gray v. Mississippi (1987) 481 US 648, 668 [107 SCt 2045; 95 LEd2d 622]; U.S. v. Fuller (4th Cir. 1998) 162 F3d 256, 259; Wardius v. Oregon (1973) 412 US 470 [93 SCt 2208; 37 LEd2d 82].)
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 6.12 Due Process: Appeal.
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].)
Generally: A convicted state defendant has no federal constitutional right to appeal. However, “it is undisputed that once appellate review is provided, due process requires that it remain unfettered.” (Castle v. U.S. (5th Cir. 1968) 399 F2d 642, 650; see also Douglas v. California(1963) 372 US 353 [9 LEd2d 811; 83 SCt 814]; Griffin v. Illinois (1956) 351 US 12 [100 LEd 891; 76 SCt 585].) “[T]he proceedings in the appellate tribunal are to be regarded as part of the process of law under which [the defendant] is held in custody by the state, and to be considered in determining any question of alleged deprivation of his life or liberty contrary to the Fourteenth Amendment.” (Frank v. Mangum (1915) 237 US 309, 327 [59 LEd 969; 35 SCt 582]; see also Cole v. Arkansas (1948) 333 US 196, 201-202 [92 LEd 644; 68 SCt 514].)
(See FORECITE PG VII(C)(40.1).)
Delay of Appeal As Denial of Due Process: In re Christopher S. (1992) 10 CA4th 1337 recognized that the defendant does have a due process right “to a speedy determination of his appeal.”
Several federal cases have also recognized that excessive delay in the appellate process may violate due process rights. “[W]hen a state provides a right to appeal, it must meet the requirements of due process and equal protection … [D]ue process can be denied by any substantial retardation of the appellate process …” (Rheuark v. Shaw (5th Cir. 1980) 628 F2d 297, 302.) On the other hand, “not every delay in the appeal of a case, even an inordinate one, violates due process.” (Id. at 303.) Such claims are tested in the federal courts by applying four factors set forth in Barker v. Wingo (1972) 407 US 514, 530-532 [33 LEd2d 101; 92 SCt 2182], for evaluating the right to a speedy trial: (1) the length of the delay; (2) the reason for the delay; (3) the degree to which the defendant asserted his or her right; and (4) the degree of prejudice to the defendant. All four factors are to be considered together in light of the circumstances of the case, as part of a ” difficult and sensitive balancing process.” (Id. at 533; see also Coe v. Thurman (9th Cir. 1991) 922 F2d 528, 532.)
Inadequate Record As Denial of Due Process on Appeal: Failure to instruct orally on the elements of the offense violates the defendant’s due process right to a record sufficient for appeal because it makes it impossible for the reviewing court to determine whether each juror read the written instructions and was aware of the elements thereof. (People of the Territory of Guam v. Marquez (9th Cir. 1992) 963 F2d 1311; see also FORECITE PG V(G)(4).)
Ineffective Counsel on Appeal: (See FORECITE PG X(K).)
(1) Complete Denial Of Appeal: See Evitts v. Lucey (1985) 469 US 387 [83 LEd2d 821; 105 SCt 830] [failure of counsel to file statement of appealability was prejudicial ineffectiveness under due process principles]; see also Lozada v. Deeds (9th Cir. 1992) 964 F2d 956, 958.
2) Failure To Raise Specific Issues: See People v. Lang (1974) 11 C3d 134, 142; Maples v. Coyle (6th Cir. 1999) 171 F3d 408 [no plausible justification for omitting appellate issues].
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].)
Strategy Note: “Counsel in state court must make a full record of all impediments to meaningful appellate review, including denial of adequate briefing time and unfair page limitations. This will provide federal counsel with an argument that any procedural bars are not adequate to preclude federal review of the claims, and that the standard of review contained in section 2254(d) should not apply.” (“RECAP” 130 (July 1998) p. 24, published by the California Appellate Project, San Francisco.)
CG 6.13 Due Process: Interpreter.
[Use FORECITE CG 1.14.]
CG 6.14 Due Process: Right To Fair Trial Trumps Judicial Economy.
[Use FORECITE CG 6.15.]
CG 6.15 Super Due Process: Right To Fair Trial Trumps Domestic Rules Of 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 allowing a domestic statutory rule to violate or impair the defendant’s federal constitutional rights.
Due Process Balancing: The U.S. Supreme Court has consistently held that domestic rules of evidence may not be invoked to preclude a criminal defendant from establishing that he has been denied a fair trial. (See Rock v. Arkansas (1987) 483 US 44 [97 LEd2d 37; 107 SCt 2704]; Green v. Georgia (1979) 442 US 95 [60 LEd2d 738; 99 SCt 2150]; Davis v. Alaska (1974) 415 US 308 [39 LEd2d 347; 94 SCt 1105]; Chambers v. Mississippi (1973) 410 US 284 [35 LEd2d 297; 93 SCt 1038]; Washington v. Texas (1967) 388 US 14 [18 LEd2d 1019; 87 SCt 1920].)
The Supreme Court has applied a balancing test in resolving conflicts between state rules of evidence and federal constitutional provisions, weighing the interest of the defendant against the state interest in the rules of evidence. (Chambers, supra, 410 US at 295; Green v. Georgia, supra, 442 US at 97; Washington v. Texas, supra, 388 US at 19-23.) Several federal circuit courts of appeal have also utilized such a test. (Dudley v. Duckworth (7th Cir. 1988) 854 F2d 967; Perry v. Rushen (9th Cir. 1983) 713 F2d 1447; Alicea v. Gagnon (7th Cir. 1982) 675 F2d 913, 923; Pettijohn v. Hall (1st Cir. 1979) 599 F2d 476, 486.)
Exclusion of evidence has been found to be arbitrary or disproportionate “where it has infringed upon a weighty interest of the accused.” (U.S. v. Scheffer (1998) 523 US 303 [140 LEd2d 413; 118 SCt 1261].) A domestic rule of evidence may not be used to exclude evidence if it “significantly undermined fundamental elements of the accused’s defense.” (Scheffer, 118 SCt at 1267.) However, rules excluding evidence from criminal trials “do not abridge an accused’s right to present a defense so long as they are not ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.’ ” (Id. at 1264.)
[See also FORECITE CG 4.5.]
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 6.16 Racial Bias.
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].)
The Equal Protection and Due Process Clauses prohibit a prosecutor from excluding qualified and unbiased persons from the jury on the grounds of race or sex, regardless of defendant’s race and sex. (Batson v. Kentucky (1986) 476 US 79 [90 LEd2d 69; 106 SCt 1712]; Powers v. Ohio (1991) 499 US 400 [113 LEd2d 411; 111 SCt 1364]; J.E.B. v. Alabama (1994) 511 US 127 [128 LEd2d 89; 114 SCt 1419]; McClain v. Prunty (9th Cir. 2000) 217 F3d 1209; Turner v. Marshall (9th Cir. 1997) 121 F3d 1248).
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 6.17 Due Process Applicable To Deeply Rooted Common Law Right.
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].)
As recognized by the United States Supreme Court, the courts should look to the common law to determine whether the defendant has a vested due process right in a particular defense. (See Montana v. Egelhoff (1996) 518 US 37 [116 SCt 2013; 135 LEd2d 361] [plurality opinion]; see also Schad v. Arizona (1991) 501 US 624 [111 SCt 2491; 115 LEd2d 555].) Under the same reasoning, the defendant has a due process right to instruction upon the elements of aiding and abetting as established by the common law.
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].)
