SERIES 100 PRETRIAL INSTRUCTIONS
F 101.2 DO NOT TALK WITH NON-JURORS
F 101.3 DO NOT DISCUSS CASE WITH JURORS UNTIL DELIBERATIONS [RESERVED]
F 101.4 DO NOT CONSIDER EXTRA-JUDICIAL MATTERS
TABLE OF CONTENTS
F 101.2 DO NOT TALK WITH NON-JURORS
F 101.2 Inst 1 Admonition Not To Talk About The Case Continues So Long As The Person Is A Juror
F 101.2 Inst 2 “Plain English” Clarification
F 101.2 Inst 3 Duty Not To Converse: Expanded Explanation
F 101.2 Inst 4 F 101.2 Inst 4 Deletion Of The Term “Share Information”
F 101.3 DO NOT DISCUSS CASE WITH JURORS UNTIL DELIBERATIONS [RESERVED]
F 101.4 DO NOT CONSIDER EXTRA-JUDICIAL MATTERS
F 101.4 Inst 1 No Consideration Of Any Extra-Judicial Matter
F 101.4 Inst 2 It Is Unnecessary And Potentially Harmful To Explain Why The Judge’s Admonition Should Be Obeyed
Return to Series 100 Table of Contents.
F 101.2 Do Not Talk With Non-Jurors
F 101.2 Inst 1 Admonition Not To Talk About The Case Continues So Long As The Person Is A Juror
*Modify CC 101, paragraph 2, sentence 1 as follows:
During the trial While you are a juror, do not talk about the case or about any of the people or any subject involved in the case with anyone, not even your family, friends, spiritual advisors, or therapists.
Points and Authorities
“During the trial” could be interpreted to mean while court is in session. It also could be interpreted to apply only to the evidentiary portion of the case. To avoid these ambiguities CALCRIM 101 should be modified as set forth above. Moreover, the California Supreme Court has recognized the tendency of jurors to make erroneous assumptions about instructions which are not specifically spelled out. (See People v. Danks (2004) 32 C4th 269, 307 [recognizing that jurors make unwarranted assumptions about instructions which are not specifically spelled out ].)
Identification Of Parties—See FORECITE F 100.2 Note 1.
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 7.3 [Consideration Of Matters Not Admitted Into Evidence]
FORECITE CG 7.5 [Fair And Unbiased Jury]
FORECITE CG 7.6 [Premature Deliberations Or Formulation Of Opinion]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 101.2 Inst 2 “Plain English” Clarification
*Replace in CC 100, paragraph 2, sentence 1:
During the trial, do not talk about [anything related to] [any aspect of] the case or about any of the people or any subject involved in the case with anyone not even your family, friends, spiritual advisors, or therapists.
Points and Authorities
“Anything related to/any aspect of”—The language used by CALCRIM 101 is overly verbose and awkward. Either of the above bracketed alternative succinctly and emphatically informs the jurors not to talk about the case.
Identification Of Parties—See FORECITE F 100.2 Note 1.
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 7.2 [Jury‘s Duty To Fully And Fairly Apply The Law]
FORECITE CG 7.5 [Fair And Unbiased Jury]
FORECITE CG 7.6 [Premature Deliberations Or Formulation Of Opinion]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 101.2 Inst 3 Duty Not To Converse: Expanded Explanation
*Modify CC 101, paragraph 2, sentence 1, as follows [added language is underlined]:
During the trial, do not talk about the case or about any of the people or any subject involved in the case with anyone, not even persons with whom you may have a close or confidential relationship, such as your family, friends, spiritual advisors, or therapists. You must not talk about these things with the other jurors either, until the time comes for you to begin your deliberations.
Points and Authorities
See People v. Danks (2004) 32 C4th 269, 307 [recognizing that jurors make unwarranted assumptions about instructions which are not specifically spelled out].
NOTE: The above language is adapted from the language suggested in the Danks opinion.
Identification Of PartiesC See FORECITE F 100.2 Note 1.
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 7.3 [Consideration Of Matters Not Admitted Into Evidence]
FORECITE CG 7.5 [Fair And Unbiased Jury]
FORECITE CG 7.6 [Premature Deliberations Or Formulation Of Opinion]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 0.50e.
F 101.2 Inst 4 Deletion Of The Term “Share Information”
*Modify CC 101, paragraph 2, sentence 2, as follows [added language is underlined]:
Do not share information about the case in writing, write or communicate anything about the case by e-mail, by telephone, on the Internet, or by any other means of communication.
Points and Authorities
The phrase “share information about the case in writing” is ambiguous because the meaning of “share information” is unclear. For example, a juror could conclude that expressing an opinion about the guilt of the defendant is not “sharing information.”
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 7.3 [Consideration Of Matters Not Admitted Into Evidence]
FORECITE CG 7.5 [Fair And Unbiased Jury]
FORECITE CG 7.6 [Premature Deliberations Or Formulation Of Opinion]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 0.50e.
F 101.3 Do Not Discuss Case With Jurors Until Deliberations [Reserved]
F 101.4 Do Not Consider Extra-Judicial Matters
F 101.4 Inst 1 No Consideration Of Any Extra-Judicial Matter
*Replace CC 101, paragraph 4, with:
Do not allow anything except the evidence admitted here in court to affect your deliberations. For example, you must not be influenced by things that happen outside the court [unless I tell you otherwise] or things that happen in court that are not evidence, such as spectator conduct.
Points and Authorities
Admonition Not Limited To Things Outside The Courtroom: By relating the cautionary instruction to matters which “happen outside of the courtroom” CALCRIM 101 fails to convey the essential point that the jurors must base their decision solely on matters that are admitted into evidence. Improper non-evidentiary influences may happen both inside and outside the courtroom. (See e.g., FORECITE F 104.1 Inst 6 [Introductory Instruction: Reactions To Evidence Must Be Disregarded].)
Deliberation vs. Decision: See FORECITE F 100.7 Inst 1.
Identification Of Parties—See FORECITE F 100.2 Note 1.
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 7.3 [Consideration Of Matters Not Admitted Into Evidence]
FORECITE CG 7.5 [Fair And Unbiased Jury]
FORECITE CG 7.6 [Premature Deliberations Or Formulation Of Opinion]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 101.4 Inst 2 It Is Unnecessary And Potentially Harmful To Explain Why The Judge’s Admonition Should Be Obeyed
*Modify CC 101 as follows [added language is underlined; deleted language is stricken]:
It is unfair to the parties if you receive Do not consider additional information from any other source because that information may be unreliable or irrelevant and the parties will not have had the opportunity to examine and respond to it.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Identification Of Parties—By attempting to explain why the jurors should obey the admonitions in CC 101, sentence two of paragraph one unnecessarily weakens the instruction. By suggesting that the jurors should follow the admonition out of fairness to the parties, the instruction misstates the jurors’ duty, which is to follow the admonition for one plain and simple reason: because they have been instructed to do so. Once some collateral rationale for the instruction is given the door is opened for the jurors to justify not following the admonition as to matters to which the stated rationale does not apply. For example, a juror could justify consideration of information obtained from the preliminary hearing or a prior trial because the parties did have an opportunity to examine and respond to it at the prior proceeding. Accordingly, the better practice would be to delete sentence two of paragraph one so that the jurors are plain and simply admonished not to consider extrajudicial information.
See also FORECITE F 101.4 [Evidence Defined].
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 7.3 [Consideration Of Matters Not Admitted Into Evidence]
FORECITE CG 7.5 [Fair And Unbiased Jury]
FORECITE CG 7.6 [Premature Deliberations Or Formulation Of Opinion]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
