F 103.2 Presumption Of Innocence: Proof Of Each Element Beyond A Reasonable Doubt

SERIES 100 PRETRIAL INSTRUCTIONS

F 103.2 PRESUMPTION OF INNOCENCE: PROOF OF EACH ELEMENT BEYOND A REASONABLE DOUBT

TABLE OF CONTENTS
F 103.2 Inst 1 Prosecutor Must Prove Every Essential Fact
F 103.2 Inst 2 Prosecutor Must Prove Every Essential Element
F 103.2 Inst 3 The Jury Should Be Instructed Using The “Each Element” Formulation Of The January 2006 Version Of CALCRIM 220

Return to Series 100 Table of Contents.

F 103.2 Inst 1 Prosecutor Must Prove Every Essential Fact

*Modify CC 103, paragraph 2, sentence 2, as follows [added language is underlined; deleted language is stricken]:

This presumption requires that the People prove each element and essential fact necessary to prove of a the alleged crime [and special allegation] beyond a reasonable doubt.

Points and Authorities

Essential Facts—This instruction is required by the Due Process Clause of the federal constitution (Fifth and Fourteenth Amendments) which protects the accused against conviction except upon proof beyond a reasonable doubt of every fact and element necessary to constitute the crime with which he is charged. (In re Winship (1970) 397 US 358, 364 [90 SCt 1068; 25 LEd2d 368]; see also Fiore v. White (2001) 531 US 225 [121 SCt 712; 148 LEd2d 629]; 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]; Sullivan v. Louisiana (1993) 508 US 275, 278-81 [113 SCt 2078; 124 LEd2d 182].)

“If the Sixth Amendment right to have a jury decide guilt and innocence means anything [citation], it means that the facts essential to conviction must be proven beyond the jury’s reasonable doubt … 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.” (U.S. v. Voss (8th Cir. 1986) 787 F2d 393, 398; see also Sandstrom v. Montana (1979) 442 US 510 [99 SCt 2450; 61 LEd2d 39]; Krucheck v. State (WY 1983) 671 P2d 1222, 1224-25.)

“When a judge gives an instruction preventing the jury from considering a material issue, the instruction is equivalent to an impermissible directed verdict on the issue.” (U.S. v. Piche (4th Cir. 1992) 981 F2d 706, 716.) Hence, the jury must be given an opportunity to decide the essential, factual questions presented by the evidence. (See People v. Figueroa (1986) 41 C3d 714, 724; U.S. v. Voss (8th Cir. 1986) 787 F2d 393, 398.)

See also CALCRIM 224 [Circumstantial Evidence]; CALCRIM 376 [Possession Of Recently Stolen Property].

Burden Of Proof As To Preliminary Fact—EC 403 specifies the preponderance of evidence standard for preliminary facts. However, when the preliminary fact is an “essential fact,” the beyond reasonable doubt standard should apply. (See above; see also CALCRIM 224 and CC 376; cf., People v. Davis (2005) 36 C4th 510, 539-41 [judge instructed that preliminary fact for adoptive admission must be proven beyond a reasonable doubt; California Supreme Court expressed no opinion on whether this was the correct standard].)

Victim Or Alleged Crime – Use of the term “victim” in a jury instruction may improperly suggest to the jury that a crime was committed. Hence, when there is an issue such as self defense or consent, use of the term “victim” may be an improper comment on the evidence.

“Defendant should object to the use of [the term ‘victim’], as opposed to the use of a term like ‘complainant’ or of the name of the complainant in the instructions to the jury. The basis of the objection is that the term ‘victim’ suggests guilt and is an impermissible charge on the facts.” (Hubbard, Jury Instructions for Criminal Cases in South Carolina: Defendants Requested Instructions II(C)(7) (South Carolina CLE, 1994), instructions on criminal sexual conduct, p. 140); see also Montana Criminal Jury Instructions, MCJI 5-203(1)(a) [Issues In Intimidation] (State Bar of Montana, 1990); North Carolina Pattern Jury Instructions–Criminal, NCPI-Crim 100.20 [Instructions To Be Given At Jury Selection] (TRCC, 1999); Pennsylvania Suggested Standard Criminal Jury Instructions, Pa. SSJI (crim) 8.311B [Consent–A Defense] (Pennsylvania Bar Institute, PBI Press, 04/74); South Dakota Pattern Jury Instructions– Criminal, SDCL 3-3-19 [Sex Offenses-Child Under Age Of 16 Not Accomplice] (State Bar of South Dakota, 1996).)

Another alternative would be to replace the term “victim” with “alleged victim.” (See e.g., 5th Circuit Pattern Jury Instructions–Criminal (2001) 2.79 [Bank Robbery].)

CALCRIM does not use the term “victim.” (See e.g., CC 850, paragraph 4; CC 1194 [“alleged victim” ]; CC 1354 [same]; but see CC 520 [“victim” ]; CC 540 [same].)

The same reasoning applies to instructions which use the term “crime” in a way that suggests a crime has been committed. (See e.g., CC 415, Element 2, paragraphs 5 & 8 [“alleged conspiracy”]; see also FORECITE F 400.2 Inst 1.)

Use Of The Term “Victim” In Instruction Titles—See FORECITE F 103.2 Inst 1; F 200.1.2 Note 2.

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 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 5.4.1 [Instructions That Suggest An Opinion as To An Essential Fact, An Element Or Guilt]
FORECITE CG 5.4.2 [Argumentative Instructions Not Suggesting Opinion On Guilt]
FORECITE CG 10.3 [Comment, Argument Or Undue Emphasis]

In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

F 103.2 Inst 2 Prosecutor Must Prove Every Essential Element

*Modify CC 103, paragraph 3, sentence 1 as follows [added language is underlined]:

Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that every essential element and essential fact of the charge is true.

Points and Authorities

See FORECITE F 103.2 Inst 1.

Identification Of Parties—See FORECITE F 100.2 Note 1.