SERIES 100 PRETRIAL INSTRUCTIONS
F 122 CORPORATION IS A PERSON [NO FORECITE ENTRIES ON THIS INSTRUCTION]
F 123 ALLEGED VICTIM IDENTIFIED AS JOHN OR JANE DOE
F 124 DO NOT TALK ABOUT THE CASE OR MAKE UP YOUR MIND
TABLE OF CONTENTS
F 122 CORPORATION IS A PERSON [NO FORECITE ENTRIES ON THIS INSTRUCTION]
F 123 ALLEGED VICTIM IDENTIFIED AS JOHN OR JANE DOE
F 123 Inst 1 Anonymous Victim Or Witness: Normal Procedure (PC 293.5)
F 123 Inst 2 Anonymity Of Alleged Victim: No Inference Of Guilt (PC 293.5)
F 123 Inst 3 Anonymity Of Alleged Victim: Defense Objection Precludes Instruction Which Benefits Defendant
F 123 Note 1 Anonymity Of Victim/Witness: Unnecessary Anonymity As Violation Of Federal Constitution
F 123 Note 2 Anonymity Of Victim/Witness: Propriety Of Withholding Identity Of Witness From Defense
F 124 DO NOT TALK ABOUT THE CASE OR MAKE UP YOUR MIND
F 124 Inst 1 Jurors Not To Form Or Express Any Opinion; Not Even A Tentative One
F 124 Inst 2 Modification Of Standard Admonition For Use In Death Penalty Cases
Return to Series 100 Table of Contents.
F 122 Corporation Is a Person [No Forecite Entries On This Instruction]
F 123 Alleged Victim Identified as John or Jane Doe
F 123 Inst 1 Anonymous Victim Or Witness: Normal Procedure (PC 293.5)
*Add to CC 123:
[A witness] [The alleged victim] used a fictitious name for the sole purpose of protecting [his] [her] privacy. This is a normal procedure required by law and has nothing to do with the defendant or any other issue in this case. You must not consider it for any purpose.
Points and Authorities
“A Witness” vs. “The Alleged Victim”—Use of the term “victim” C even with the modifying “alleged” C may be prejudicial. (See FORECITE F 103.2 Inst 1.) Hence, use of the term “witness” is the better practice.
If the alleged victim did not testify, then the language of FORECITE F 123 Inst 2 is preferable to CALCRIM 123.
Normal Procedure— PC 293.5(b) states that if the court orders the alleged victim’s identity to be withheld per PC 293.5(a) “the court shall instruct the jury, at the beginning and at the end of the trial, that the alleged victim is being so identified only for the purpose of protecting his or her privacy pursuant to this section.” However, as with courtroom security measures, witness or victim anonymity can be highly prejudicial to the defendant by implying that he or she (1) is dangerous and (2) may try to escape thus implying a consciousness of guilt. (See Illinois v. Allen (1970) 397 US 337, 344 [25 LEd2d 353; 90 SCt 1057]; People v. Hannon (1977) 19 C3d 588, 600; U.S. v. Scarfo (3rd Cir. 1988) 850 F2d 1015, 1021-1023.) Therefore, a “normal procedure” instruction may be appropriate. (See e.g., People v. Goodwin (1997) 59 CA4th 1084; see also FORECITE F 101.1 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 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 7.5 [Fair And Unbiased Jury]
FORECITE CG 9.2.1 [Anonymity Of Victim/Witness: Propriety Of Withholding Identity Of Witness From Defense]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CAVEAT: With regard to most cautionary or limiting instructions, counsel will have to determine whether the benefits of the instruction outweigh the danger that it might unduly emphasize the prejudicial matter. (See FORECITE PG X(E)(19) discussing whether jurors are capable of following cautionary and limiting instructions; see also FORECITE BIBLIO "Empirical ResearchA (BIBLIO E) and FORECITE BIBLIO 17.30 "Cautionary/Limiting Instructions.") Consideration should also be given to the appellate implications of trial counsel’s decision regarding such a cautionary instruction. (See FORECITE PG VI(C).)
CALJIC NOTE: See FORECITE F 1.12a.
F 123 Inst 2 Anonymity Of Alleged Victim: No Inference Of Guilt (PC 293.5)
*Add to CC 123 [added language is underlined]:
In this case, a person (is/will be/has been) called (John/Jane) Doe. This name (is/will be/has been) used only to protect (his/her) privacy, as required by law. This is a normal procedure and has nothing to do with the defendant. The fact that the person (is/will be/has been) identified in this way is not evidence. Do not consider this fact for any purpose. You must not make any inference concerning the defendant’s guilt [or any other issue] from the failure to identify the victim.
Points and Authorities
No Inference Of Guilt—If counsel determines that such an instruction should be given, a request could be made to add language cautioning the jury not to draw any inference concerning the defendant’s guilt from the use of a fictitious name by the alleged victim. People v. Ramirez (1997) 55 CA4th 47 at 57-58, suggested that such language could be added to the instruction upon request but rejected an argument that it should be added sua sponte.
Normal Procedure—See FORECITE F 123 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 9.2 [Courtroom Security]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CAVEAT: With regard to most cautionary or limiting instructions, counsel will have to determine whether the benefits of the instruction outweigh the danger that it might unduly emphasize the prejudicial matter. (See FORECITE PG X(E)(19) discussing whether jurors are capable of following cautionary and limiting instructions; see also FORECITE BIBLIO AEmpirical ResearchA (BIBLIO E) and FORECITE BIBLIO 17.30 “Cautionary/Limiting Instructions.“) Consideration should also be given to the appellate implications of trial counsel’s decision regarding such a cautionary instruction. (See FORECITE PG VI(A)(2)-(10).)
CALJIC NOTE: See FORECITE F 1.12b.
F 123 Inst 3 Anonymity Of Alleged Victim: Defense Objection Precludes Instruction Which Benefits Defendant
[Do not give CALCRIM 123 over defense objection or in absence of defense request.]
Points and Authorities
Instructions regarding victim/witness anonymity (e.g., CC 123) are cautionary in nature and for the benefit of the defendant. (See People v. Ramirez (1997) 55 CA4th 47, 58.) Therefore, since the defendant has the right to waive (preclude) an instruction which is for his or her benefit, then the instruction mandated by PC 293.5 should not be given if the defendant determines that he or she would rather not have the instruction in light of the strategic concern that the instruction could exacerbate the prejudice stemming from the failure to identify the alleged victim. (See FORECITE PG VI(C)(1.1); see also, e.g., FORECITE F 362.1 Inst 9 [defense objection precludes instruction which benefits defendant].)
CAVEAT: With regard to most cautionary or limiting instructions, counsel will have to determine whether the benefits of the instruction outweigh the danger that it might unduly emphasize the prejudicial matter. (See FORECITE PG X(E)(19) discussing whether jurors are capable of following cautionary and limiting instructions; see also FORECITE BIBLIO “Empirical Research” (BIBLIO E) and FORECITE BIBLIO 17.30 “Cautionary/Limiting Instructions.”) Consideration should also be given to the appellate implications of trial counsel’s decision regarding such a cautionary instruction. (See FORECITE PG VI(A)(2)-(10).)
Identification Of Parties – See FORECITE F 100.2 Note 1.
CALJIC NOTE: See FORECITE F 1.12 n1.
F 123 NOTES
F 123 Note 1 Anonymity Of Victim/Witness: Unnecessary Anonymity As Violation Of Federal Constitution
See Constitutional Grounds For This Request: FORECITE CG 9.2.1 [Anonymity Of Victim/Witness: Propriety Of Withholding Identity Of Witness From Defense]; see also FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts], FORECITE CG 7.5 [Fair And Unbiased Jury].
F 123 Note 2 Anonymity Of Victim/Witness: Propriety Of Withholding Identity Of Witness From Defense
On a sufficient showing of true danger to the witnesses, the very identity of the witnesses can be withheld from the defense, but only prior to trial. (Alvarado v. Superior Court (2000) 23 C4th 1121, 1135-36.)
CALJIC NOTE: See FORECITE F 1.12 n3.
F 124 Do Not Talk About The Case Or Make Up Your Mind
F 124 Inst 1 Jurors Not To Form Or Express Any Opinion; Not Even A Tentative One
*Modify CC 124, paragraph 2, sentence 2, as follows [added language is underlined; deleted language is stricken]:
Do not make up your mind form or express any opinion [not even a tentative one] about the verdict or any issue until after you have discussed the case with the other jurors during deliberations.
Points and Authorities
See FORECITE F 101.10 Inst 2 (a & b).
Identification Of Parties—See FORECITE F 100.2 Note 1.
F 124 Inst 2 Modification Of Standard Admonition For Use In Death Penalty Cases
*Add to CC 124 and give immediately after rendition of death eligibility guilt verdict:
In light of your verdict there will be a penalty phase of this trial at which you will consider what punishment should be imposed on the defendant. However, you must not consider the issue of penalty nor form or express any opinion regarding penalty until you begin your penalty phase deliberations.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Need For Supplement To CALCRIM Language—A juror’s premature formulation of an opinion may skew the trial in favor of death over life. (See Bowers et al, supra; Foglia, supra; Haney, Death by Design.) Such skewing violates the defendant’s constitutional rights to trial by jury and due process. (Calif. Const., Article I, §§ 7 and 15; U.S. Const. 6th and 14th Amendments; see Winebrenner v. United States (8th Cir. 1945) 147 F2d 322, 328; Herring v. New York (1975) 422 US 853, 858.) This problem is all the more acute when the juror expresses his or her opinion. (See People v. Purvis (1963) 60 CA2d 323, 340, fn. 14 [“The influence that lurks in an opinion once formed is so persistent that it unconsciously fights detachment from the mental processes of the average man . . .”]; see also Delaney v. United States (1st Cir. 1952) 199 F2d 107, 113; People v. Brown (1976) 61 CA3d 476 [expression of an opinion as to the guilt of the defendant before hearing all of the evidence was prejudicial misconduct].)
Furthermore, premature consideration of penalty also violates the Due Process and Cruel and Unusual Punishment Clauses of the federal constitution (8th and 14th Amendments) which preclude arbitrary or capricious determination of death eligibility and require heightened reliability in the determination of both guilt and penalty before a sentence of death may be imposed. (See Maynard v. Cartwright (1988) 486 US 356; Beck v. Alabama (1980) 447 US 625; Kyles v. Whitley (1995) 514 US 419; Gilmore v. Taylor (1993) 508 US 333, 342; Burger v. Kemp (1987) 483 US 776, 785; Godfrey v. Georgia (1980) 446 US 420; White v. Illinois (1992) 502 US 346, 363-64 [reliability required by due process]; Donnelly v. DeChristoforo (1974) 416 US 637, 646 [same].) Additionally, the denial of a fair and impartial jury at the penalty phase of a capital trial violates the defendant’s federal constitutional rights (6th, 8th and 14th Amendments) to due process, fair trial by jury and verdict reliability. (See Monge v. California (1989) 524 US 721, 731-32.)
Accordingly, the above language should be added to the standard admonition.
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:
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
