SERIES 200 POST-TRIAL: INTRODUCTORY
F 201 Do Not Investigate
F 202 Note-Taking
F 203 Multiple Defendants
TABLE OF CONTENTS
F 201 Do Not Investigate
F 202 Note-Taking
F 202 Inst 1 Jurors Should Not Be Required To Accept The Reporter’s Notes As Accurate
F 202 Note 1 Preliminary and Introductory Instruction Regarding Juror Note-Taking
F 203 MULTIPLE DEFENDANTS
F 203 Inst 1 (a & b) Multiple Defendants: Do Not Consider As A Group
F 203 Inst 2 Multiple Defendants: Elements Of Charge Must Be Specified As To Each Defendant
Return to Series 200 Table of Contents.
F 201 Do Not Investigate
[See FORECITE F 101.5.]
F 202 Note-Taking
F 202 Inst 1 Jurors Should Not Be Required To Accept The Reporter’s Notes As Accurate
*Modify CC 202, paragraph 1, last sentence, as follows [added language is underlined; deleted language is stricken]:
It is the record that must guide your deliberations, not your notes. You must accept the court reporter’s record as accurate After hearing the court reporter’s record, each individual juror must decide what was said based on his or her recollection, any notes taken by that juror and the court reporter’s record. You are not bound to accept the court reporter’s record over your own individual recollection and/or notes.
Points and Authorities
See FORECITE F 104.5 Inst 1.
F 202 Note 1 Preliminary and Introductory Instruction Regarding Juror Note-Taking
See FORECITE F 102 et al.
F 203 Multiple Defendants
F 203 Inst 1 (a and b) Multiple Defendants: Do Not Consider As A Group
*Add to CC 203:
Alternative a:
Do not [consider] [think of] the defendants as a group.
Alternative b:
It is your duty to give separate, personal consideration to the case of each individual defendant. When you do so, you must analyze what the evidence in the case shows with respect to that individual without any consideration whatsoever of any evidence admitted solely against another defendant or defendants. Each defendant is entitled to have [his] [her] case determined from evidence as to [his] [her] own acts and statements and conduct, and any other evidence in the case which may be applicable to [him] [her], just as if [he] [she] were being tried alone.
Points and Authorities
Alternative a: Adapted from Fed. Jud. Ctr., Pattern Crim. Jury Instructions (1988), Inst. # 46, Alternative B, p. 56.
Alternative b: Adapted from Deerings EC 355, “Suggested Forms.”
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 2.7 [Guilt By Association]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
RESEARCH NOTES: Inconsistency of criminal verdicts as between two or more defendants tried together, 22 ALR3d 717 and Later Case Service.
CALJIC NOTE: See FORECITE F 17.00a.
F 203 Inst 2 Multiple Defendants: Elements Of Charge Must Be Specified As To Each Defendant
To prove defendant ______________ <insert name of first defendant> guilty of __________ <insert applicable charge> the prosecution must prove the following beyond a reasonable doubt:
[List applicable elements tailored to first defendant]
. . .
To prove defendant ______________ <insert name of second defendant> guilty of __________ <insert applicable charge> the prosecution must prove the following beyond a reasonable doubt:
[List applicable elements tailored to second defendant]
. . .
To prove defendant ______________ <insert name of third defendant> guilty of __________ <insert applicable charge> the prosecution must prove the following beyond a reasonable doubt:
[List applicable elements tailored to third defendant]
Points and Authorities
Even if the charges as to each defendant involve the same element and, even if the jury is told to separately consider the case as to each defendant, it is still necessary to separately specify the elements necessary for proof of conviction as to each defendant. (See U.S. v. Tagalicud (9th Cir. 1996) 84 F3d 1180 [conviction against four defendants reversed when elements of the charge were specified only as to one of the defendants].)
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 2.10 [Multiple Defendants: Separate Consideration]
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 17.00 n1.
