SERIES 200 POST-TRIAL: INTRODUCTORY
F 200.1.1 Miscellaneous Instructions
TABLE OF CONTENTS
F 200.1.1 Miscellaneous Instructions
F 200.1.1 Inst 1 Improper To Suggest That The Law In The Instructions “Applies To This Case”
F 200.1.1 Inst 2 Definition Of Instruction
F 200.1.2 Availability Of Written Instructions
F 200.1.2 Inst 1 Reference To Availability Of Written Instructions Should Be Made At The End Of The Instructions
F 200.1.2 Note 1 Written Instructions To The Jury
F 200.1.2 Note 2 Whether Written Instructions Should Include Descriptive Titles
F 200.1.2 Note 3 Record Must Include Proposed Instruction Titles And Numbers
Return to Series 200 Table of Contents.
F 200.1.1 Inst 1 Improper To Suggest That The Law In The Instructions “Applies To This Case”
*Modify CC 200 as follows:
[Delete paragraph 1, sentence 1.]
Points and Authorities
See FORECITE F 100.1 Inst 5.
F 200.1.1 Inst 2 Definition Of Instruction
See FORECITE F 100.1 Inst 4.
F 200.1.2 Availability Of Written Instructions
F 200.1.2 Inst 1 Reference To Availability Of Written Instructions Should Be Made At The End Of The Instructions
*Delete CC 200, paragraph 1, sentence 2 and 3, until the conclusion of all other instructions:
[I will give you a copy of the instructions to use in the jury room.] [Each of you has a copy of these instructions to use in the jury room.]
*At the conclusions of all instructions add:
[You] [Each of you] will have these instructions in written form in the jury room to refer to during your deliberations.
Points and Authorities
If at the outset of the instructions, the jury is told that written instructions will be available, there is a danger that the jury will not listen as closely to the oral instructions with the knowledge that they will have the written instructions to refer to later. This danger is particularly significant since the jurors reference to the written instructions without hearing the oral instructions may be inherently prejudicial. (See FORECITE PG V(G)(4).) Accordingly, reference to the availability of the written instructions should be made at the end rather than the beginning of the instructions.
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 1.14 [Reliability]
FORECITE CG 7.2 [Jury’s Duty To Fully And Fairly Apply The Law]
FORECITE CG 7.8 [Right To Individual Juror Determination]
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 1.00m.
F 200.1.2 Note 1 Written Instructions To The Jury
CALCRIM 200 cites PC 1093(f), 1137 for the proposition that the right of the jury to receive a copy of the written instructions is statutory, not constitutional. However, if the jury has indicated confusion or misunderstanding regarding the instructions or requests a readback of the instructions, the defendant’s federal constitutional rights to trial by jury and due process (6th and 14th Amendments) may be implicated by the failure to provide the jury with written copies of the jury instructions. (See People v. Blakley (1992) 6 CA4th 1019, 1024; see also FORECITE PG V(G).)
In capital cases, the court should provide a written copy of the jury instructions to the jury, especially where the jury expresses an inability to understand the instructions. (See People v. Seaton (2001) 26 C4th 598, 673-674.)
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 1.14 [Reliability]
FORECITE CG 7.2 [Jury’s Duty To Fully And Fairly Apply The Law]
FORECITE CG 7.8 [Right To Individual Juror Determination]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
RESEARCH NOTE: See “Enhancing A Jury’s ‘Hang-Ability’ “ by Tiffany A. Denhardt, FORUM, July 1998.
CALJIC NOTE: See FORECITE F 1.00 n3.
F 200.1.2 Note 2 Whether Written Instructions Should Include Descriptive Titles
The CALCRIM User’s Guide states that the titles are “not part of the instruction” and “may be removed before presentation to the jury.” Use of the term “may” suggests that removal of the titles is intended to be discretionary with the trial judge. This is consistent with Rule 2.1055(a)(2) (formerly Rule 229(a)(2)) which leaves the form and format of the instructions “to the discretion of the court.” (See also People v. Bloyd (1987) 43 CA2d 333, 355 [submitted written instructions with descriptive titles is not error]; see also FORECITE PG V(G)(3).)
It has been suggested that descriptive titles make oral delivery of instructions more understandable and assist the jurors in reviewing the instructions in the jury room. (North Dakota Pattern Jury Instructions, NDJI-Criminal Introduction, page 1 (State Bar Association of North Dakota, 1985)).
On the other hand, CALCRIM acknowledges that the titles of its instructions “are directed to lawyers and sometimes use words and phrases not used in the instructions themselves.” (User’s Guide, page 2.)
Moreover, if the descriptive titles are misleading or incomplete they could confuse or mislead the jurors. (Cf., People v. Torres (2011) 198 CA4th 1131, 1147 fn 11 [“It is quite possible that the judge was misled by the title to CALCRIM No. 2623 . . .”].) And, if some instructions are titled and others are not, there is a further risk of undue emphasis of certain instructions.
In sum, counsel should review the descriptive titles of both the CALCRIM and non-CALCRIM (“special”) instructions to decide whether to:
1. Request that all titles be deleted;
2. Request modification of misleading, incomplete or prejudicial titles; or
3. Allow the jurors to receive the instructions with the existing CALCRIM titles.
F 200.1.2 Note 3 Record Must Include Proposed Instruction Titles And Numbers
See FORECITE PG V(G)(3.2).
