SERIES 100 PRETRIAL INSTRUCTIONS
F 100.2 IDENTIFICATION OF PARTIES
TABLE OF CONTENTS
F 100.2 Inst 1 Propriety Of Referring To The Prosecution As “The People”
F 100.2 Inst 2 Propriety Of Capitalizing “People”
F 100.2 Inst 3 Improper To Refer To The Accused As “The Defendant”
F 100.2 Note 1 Objection To CALCRIM’s Identification Of Parties
Return to Series 100 Table of Contents.
F 100.2 Inst 1 Propriety Of Referring To The Prosecution As “The People”
*Modify all CALCRIM instructions as follows [added language is underlined; deleted language is stricken]:
[Change “People“to “government” or “state“]
Points and Authorities
Referring to the prosecution as “The People” violates a criminal defendant’s state and federal substantive and procedural due process rights as well as the right to fair trial by jury. (U.S. Const., 5th, 6th and 14th Amendments; but see People v. Black (2003) 114 CA4th 830 [California statutes mandate that prosecutions be conducted in the name of “The People of the State of California”].) Whether a substantive due process right exists and has been violated requires the court to ” … [e]xamine our Nation’s history, legal traditions and practices.” (Washington v. Gulcksberg (1997) 521 US 702, 710 [138 LEd2d 772; 117 SCt 2258].) Both our Nation’s history and legal practices indicate that referring to the prosecution as “The People” violates substantive due process rights. The vast majority of jurisdictions in the United States recognize the constitutionally correct way for a jurisdiction’s legal system to refer to its prosecution is not as “The People.” Of all the state and federal jurisdictions, only California, Colorado, Illinois, Michigan and New York refer to the prosecution as ” The People.”
Calling the prosecution “The People” blurs and confuses critical distinctions. It is the prosecution‘s duty, on behalf of the executive branch of government, to litigate against criminal defendants. It is the jury‘s duty, as representatives of the people of a defendant’s community, to listen impartially to the evidence presented by the prosecution and then decide guilt. (See e.g., J.E.B. v. Alabama (1994) 511 US 127 [128 LEd2d 89; 114 SCt 1419], Powers v. Ohio (1991) 499 US 400 [113 LEd2d 411; 111 SCt 1364] and Batson v. Kentucky (1986) 476 US 79 [90 LEd2d 69; 106 SCt 1712] [establishing protections to ensure juries are not selected based on impermissible exclusionary practices].) In California, both groups purportedly represent “The People” of the state—the jurors actually, and the prosecution putatively through its title in criminal cases. Thus, confusion necessarily reigns when all are referred to as “the People.”
All, that is, except the defendant. While California’s custom unconstitutionally aligns groups of people who have vastly different tasks to perform in the criminal justice system, it simultaneously excludes the defendant. The caption in every California criminal case reads “The People of the State of California versus The Defendant.” This dichotomy is reinforced by the CALCRIM instructions which use the terms “The People” and “the defendant.”
In other words, there are “The People,” and then there is “the defendant.” While the message is subtle, these oppositional phrases necessarily imply to jurors that defendants are somehow “other than” people. And, even more ironically and importantly, while the dichotomy suggests “the Defendant” is not one of “The People,” the dichotomy expressly states the government is.
This distinction in the language that juries hear over and over again in court is critical. From the beginning of the proceedings and consistently throughout trial, pitting “The People” against “the Defendant” literally suggests to a criminal defendant’s jury that the defendant is something (at worst) or someone (at best) other than the rest of us. To the extent this dichotomy suggests criminal defendants are something other than people, this clearly violates due process. To the extent this dichotomy suggests criminal defendants are someone other than the people, this violates the defendant’s right to trial by jury of his or her peers.
Additionally, reference to “The People” as the plaintiff improperly tends to align the jury with the prosecution and against the defendant. “[I]t is not entirely correct to say that the People are the real complainants…it is perhaps better to say that the People are the ‘arbiters, umpires, the judges—to see the accused gets a fair and impartial trial.'” (People v. Schoos (IL 1948) 78 NE2d 245, 247; see also People v. Brown (MI 1972) 43 Mich.App. 170, 175 [204 NW2d 72] [error to suggest to jury that “in presenting the charge the prosecution was acting for the entire citizenry, including the jurors…” ].)
In sum, California’s reference to the prosecution as “The People” versus “the Defendant” violates both the letter and spirit of the due process and trial by jury clauses of the state (Art. I, §7, §15 and §16) and federal (5th, 6th and 14th Amendments) Constitutions. The phrase “The People” impermissibly aligns two separate bodies with different functions—the prosecution and the jury—at the same time the phrase “versus the Defendant” excludes the defendant from the community of his peers who form his jury.
Moreover, the juxtaposition of the defendant and the People creates an overly advantageous position for the prosecution. This lack of balance between the prosecution and the defense violates the due process clause of the federal constitution. (See e.g., Wardius v. Oregon (1973) 412 US 470 [37 LEd2d 82; 93 SCt 2208].)
[See also CALCRIM Motion Bank # CCM-001 [Motion For Defense Requested Jury Instructions]; CALCRIM Motion Bank # CCM-006 [Motion To Use “The Government” Or “The State” In Lieu Of “The People”].]
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case.
Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 6.5 [Instructions Must Be Balanced Between Defense and Prosecution]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
[The above was adapted from a brief by Tamara Holland. See Brief Bank # B-803 forthe full briefing is available to FORECITE subscribers .
CALJIC NOTE: See FORECITE F 0.50d.
F 100.2 Inst 2 Propriety Of Capitalizing “People”
*Modify CC 100, paragraph 1 & 2 and throughout all the instruction as follows [added language is underlined; deleted language is stricken]:
[Change “People” to ” people“]
Points and Authorities
Assuming arguendo that the term “People” is used in referring to the prosecution (but see FORECITE F 100.2 Inst 1), there is no basis for capitalizing the term. This gives the prosecution undue stature, especially since the term “defendant” is not capitalized. (Cf. Wardius v. Oregon (1973) 412 US 470 [37 LEd2d 82; 93 SCt 2208].)
[See also CALCRIM Motion Bank # CCM-001 [Motion For Defense Requested Jury Instructions]; CALCRIM Motion Bank # CCM-006 [Motion To Use “The Government” Or “The State” In Lieu Of “The People”].]
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case.
Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 6.5 [Instructions Must Be Balanced Between Defense and Prosecution]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 100.2 Inst 3 Improper To Refer To The Accused As “The Defendant”
*Modify CC 100, paragraph 1 and 3, and throughout all the instruction as follows [added language is underlined; deleted language is stricken]:
[Change “the defendant[s]“to ” the accused[s]“or to “[Mr./Ms. _________ <insert last name of defendant>]“
Points and Authorities
[See CALCRIM Motion Bank # CCM-005 [Motion To Use The Defendant’s Name Instead Of The Term “Defendant”].]
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case.
Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 2.7 [Guilt By Association]
FORECITE CG 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 100.2 Note 1 Objection To CALCRIM’s Identification Of Parties
The CALCRIM Committee decided to use the terms “The People” and “the defendant” in referring to the parties. The CALCRIM terminology should be challenged with the following requests:
F 100.2 Inst 1 [Propriety Of Referring To The Prosecution As “The People”]
F 100.2 Inst 2 [Propriety Of Capitalizing “People”]
F 100.2 Inst 3 [Improper To Refer To The Accused As “The Defendant”]
See also CALCRIM Motion Bank # CCM-001 [Motion For Defense Requested Jury Instructions]; # CCM-005 [Motion To Use The Defendant’s Name Instead Of The Term “Defendant”]; # CCM-006 [Motion To Use “The Government” Or “The State” In Lieu Of “The People”].]
