SERIES 100 PRETRIAL INSTRUCTIONS
F 101.5 DO NOT CONDUCT RESEARCH; DO NOT VIEW SCENE
DO NOT DO ANY RESEARCH
TABLE OF CONTENTS
F 101.5 Inst 1 (a-c) Jurors Are Not Walking Dictionaries
F 101.5 Inst 2 Jurors Not To Consider Anything Accidentally Observed At The Scene
F 101.5 Inst 3 Inadvertent View Of Scene Must Be Reported To Judge
Return to Series 100 Table of Contents.
F 101.5 Inst 1 (a-c) Jurors Are Not Walking Dictionaries
Alternative a: Reference To One Specific Term
The term ______________ <insert> as used in these instructions does not have a technical or specialized legal meaning. Consider the common, ordinary meaning of ____________ when considering and applying these instructions.
If you are uncertain about the definition of this term, do not consult a dictionary. Any juror who needs to have this, or any other, term defined should send out a note and a definition will be provided.
Alternative b: Reference To Multiple Terms
The terms ______________, ______________, and _______________ (insert) as used in these instructions do not have technical or specialized legal meanings. Consider the common, ordinary meaning of these terms when considering and applying these instructions.
If you are uncertain about the definition of these terms do not consult a dictionary. Any juror who needs to have these terms defined should send out a note and a definition will be provided.
Alternative c: Admonition That Counsel’s Definition In Argument Should Be Followed
A definition of the term[s] _______ has not been included in these instructions because you are to use the common dictionary meaning of it [them].
If counsel provides you with a definition of [this term] [these terms], you may rely on [that] [those] definition[s] unless [it] [they] conflict[s] with the instructions or I sustain an objection to counsel’s definition.
Points and Authorities
Jury instruction jurisprudence attempts to draw a “bright line” distinction between terms which have a technical, specialized legal meaning and those which are defined by their common dictionary meaning.
On one side of this “bright line,” the trial judge must sua sponte define terms which have a “technical meaning peculiar to the law.” (See Wharton’s Criminal Procedure (West, 13th ed. 1989) §463 [Technical Terms Must Be Defined With Precision]; see also Cissell, Federal Criminal Trials (Lexis, 5th ed. 1999) §12-7(a), p. 299-300; Gagliardo v. U.S. (9th Cir. 1966) 366 F2d 720, 725 [failure to define the word “indecent” was reversible error]; People v. Griffin (2004) 33 Cal.4th 1015, 1022-1023; People v. McElheny (1982) 137 CA3d 396, 403; Abercrombie v. State (IN 1985) 478 NE2d 1236, 1239; State v. Mundy (NC 1965) 144 SE2d 572, 573 [in robbery case, jury must be instructed that taking of property with felonious intent is an essential element of the offense, and court must in some sufficient form explain and define the term “felonious intent” ]; Williams v. State (OK 1976) 554 P2d 842, 847 [definition of “proximate cause” is not commonly understood term].)
On the other side of the line, a trial court has no sua sponte duty to give amplifying or clarifying instructions in the absence of a request when a word or phrase used in the instructions given “is commonly understood by those familiar with the English language and is not used in a technical sense peculiar to the law.” (People v. Griffin (2004) 33 C4th 1015, 1022-23; State v. Valles (1989) 780 P2d 1049 [162 Ariz. 1, 6].)
However, this firmly established rule of jury instruction jurisprudence is actually founded on a myth. It falsely assumes that lay jurors are “walking dictionaries” who will be able to accurately and precisely define every common usage instructional term off the top of their heads. We know this assumption is false as a matter of our own common experience and as demonstrated by actual juries who have improperly resorted to the dictionary for definition of instructional terms. (See e.g., People v. Karis (1988) 46 Cal.3d 612, 642; U.S. v. Gillespie (6th Cir. 1995) 61 F.3d 457, 459; Maslinski v. Brunswick Hosp. Center Inc. (NY 1986) 118 A.2d 834 [500 NYS2d 318]; State v. Richards (VA 1995) 466 S.E.2d 395, 400; but see People v. Landwer (IL 1996) 664 N.E.2d 677, 682 [error to refuse jury’s request for dictionary].)
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].)
In sum, without instructional clarification jurors are put in an untenable situation by the jurisprudential myth that they are “walking dictionaries.” Not only are jurors unrealistically expected to know the correct dictionary definitions of every undefined instructional term, but they are expressly prohibited from consulting the most logical place to find the meaning of a common word or phraseC the dictionary.
Accordingly, the instructions should either:
1. Provide dictionary/common usage definitions of terms which jurors may not be able to fully and accurately define off the top of their heads; or
2. Offer the jurors the option of obtaining definitions from the court, if necessary.
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 3.5 [Failure To Fully, Clearly and Accurately Instruct On An Element]
FORECITE CG 7.2 [Jury’s Duty To Fully And Fairly Apply The Law]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CAVEAT: This instruction is intended to address the situation where a defense requested instruction on a definition has been rejected on the basis that the definition is presumed to be within the common understanding of the jurors. In such situation counsel should be permitted to argue the point, but the jury may not give such argument the same stature as an instruction from the court. The above instruction is intended to address this concern.
Such an instruction should be carefully evaluated because it may allow the jury to consider other definitions in argument from either side in the same fashion. Hence, if the instruction is given, or even if it isn’t, counsel should be vigilant to object to misstatements by the prosecutor during argument.
See also FORECITE F 200.5 Inst 2.
F 101.5 Inst 2 Jurors Not To Consider Anything Accidentally Observed At The Scene
*Modify CC 101, paragraph 5, last sentence as follows:
If you happen to pass by the scene, do not stop or investigate consider or tell other jurors about anything you saw at the scene.
Points and Authorities
Inadvertent Observation As Juror Misconduct— Juror observation of extra-judicial evidence may be juror misconduct, even if the observation was inadvertent. (See In re Stankewitz (1985) 40 C3d 391, 396-400; People v. Holloway (1990) 50 C3d 1098, 1108-12.)
Unauthorized View Of Scene Should Be Reported To The Judge—Therefore, the judge should be made aware of such observations. (See generally People v. Cleveland (2001) 25 C4th 466, 477-78 [trial court has duty to inquire if put on notice that juror may not be able to perform his or her duty]; see also People v. Barber (2002) 102 CA4th 145; People v. Hightower (2001) 94 CA4th 998 [juror note triggered duty to inquire and conduct further investigation].) Even if the juror provides an assurance of impartiality in a note written to the court revealing the improper knowledge, this would still be insufficient to insure the juror’s impartiality without further inquiry. (U.S. v. Herndon (6th Cir. 1998) 156 F3d 629; see also Dyer v. Calderon (9th Cir. 1998) 151 F3d 970 [state trial judge failed to conduct an adequate investigation into juror’s alleged bias after information surfaced during trial calling into question the veracity of the juror’s voir dire answers]; see also Fields v. Woodford (9th Cir. 2002) 281 F3d 963 [juror whose wife had been kidnapped and raped may have been biased during murder trial].)
Scene Of Any Event—This admonition should not be limited to the scene of the crime. The jurors should not visit the scene of any event discussed in the evidence. (See generally People v. Holloway, 50 C3d at 1108-12.)
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 101.5 Inst 3 Inadvertent View Of Scene Must Be Reported To Judge
*Add at end of CC 101, paragraph 5 as follows:
If you inadvertently passed by, or otherwise observed the scene of any event involved in this case you must immediately give my clerk _______________ <name of clerk> a written note reporting the incident to me. If the clerk is not available, give the note to the bailiff and inform the clerk about the note as soon as possible thereafter.
Points and Authorities
Inadvertent Observation As Juror Misconduct—Juror observation of extra-judicial evidence may be juror misconduct, even if the observation was inadvertent. (See In re Stankewitz (1985) 40 C3d 391, 396-400; People v. Holloway (1990) 50 C3d 1098, 1108-12.)
Unauthorized View Of Scene Should Be Reported To The Judge—Therefore, the judge should be made aware of such observations. (See generally People v. Cleveland (2001) 25 C4th 466, 477-78 [trial court has duty to inquire if put on notice that juror may not be able to perform his or her duty]; see also People v. Barber (2002) 102 CA4th 145; People v. Hightower (2001) 94 CA4th 998 [juror note triggered duty to inquire and conduct further investigation].) Even if the juror provides an assurance of impartiality in a note written to the court revealing the improper knowledge, this would still be insufficient to insure the juror’s impartiality without further inquiry. (U.S. v. Herndon (6th Cir. 1998) 156 F3d 629; see also Dyer v. Calderon (9th Cir. 1998) 151 F3d 970 [state trial judge failed to conduct an adequate investigation into juror’s alleged bias after information surfaced during trial calling into question the veracity of the juror’s voir dire answers]; see also Fields v. Woodford (9th Cir. 2002) 281 F3d 963 [juror whose wife had been kidnapped and raped may have been biased during murder trial].)
Scene Of Any Event—This admonition should not be limited to the scene of the crime. The jurors should not visit the scene of any event discussed in the evidence.
Duty To Report By Written Note—See FORECITE F 101.6 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.
