PG X(G) Effect of Argument on Instructional Error.
PG X(G)(1) Argument Of Prosecutor Heightens Prejudice: See People v. Roder (83) 33 C3d 491, 505 [189 CR 501]; People v. Brady (87) 190 CA3d 124, 138 [235 CR 248]; People v. Martinez (86) 188 CA3d 19, 26 [232 CR 736]; People v. Hannon (77) 19 C3d 588, 603 [138 CR 885]; see also People v. Morales (2001) 25 C4th 34, 48 [104 CR2d 582] [observing that People v. Green (80) 27 C3d 1, 70 [164 CR 1] holds that “in cases suffering from insufficient evidence, deficient instructions or other errors made in presenting evidence or giving instructions, ill-advised remarks by the prosecutor may compound the trial’s defects”]; Garceau v. Woodford (9th Cir. 2001) 275 F3d 769, 777 [prosecutor made significant reference to improper propensity evidence during closing argument].
PG X(G)(2) Jurors Presumed To Follow The Law Instead Of Argument: The reviewing court must “presume that jurors treat the court’s instructions as a statement of the law by a judge, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.” (People v. Clair (92) 2 C4th 629, 663 [7 CR2d 564]; see also CJ 1.01.) “The crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions.” (People v. Mickey (91) 54 C3d 612, 689, fn 17 [286 CR 801; see also People v. Delgado (93) 5 C4th 312 [19 CR2d 529]; People v. Cruz (2001) 93 CA4th 69, 73 [113 CR2d 86] [“We presume that the jury ‘meticulously followed the instructions given.’ [Citation.]”].)
The appellate courts often rely on the arguments of counsel to conclude that improper or ambiguous instructions were harmless. (See People v. Miller (96) 46 CA4th 412, 423 fn 4 [53 CR2d 773]; People v. Brown (88) 45 C3d 1247, 1256 [248 CR 817].) However, it may be argued that this use of the arguments of counsel is improper under a subsequent California Supreme Court case which specifically recognized a presumption that the jury relied on the instructions not the arguments of counsel. In rejecting an argument that the jury may have improperly relied upon an erroneous theory of guilt advanced by the prosecutor in argument, the court in People v. Morales (2001) 25 C4th 34, 47 [104 CR2d 582] held as follows:
“…[W]e presume that the jury relied on the instructions, not the arguments in convicting defendant. ‘[I]t should be noted that the jury, of course, could totally disregard all the arguments of counsel.’ [Citation.] Though we have focused on the prosecutor’s closing arguments, we do not do so at the expense of our presumption that ‘the jury treated the court’s instructions as statements of law and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.’ [Citation.] The trial court emphasized this rule when, as stated, it instructed the jury to follow the instructions and to exalt them over the parties’ arguments and statements [see CJ 1.00].”
PG X(G)(3) Argument Of Counsel Cannot Substitute For Instruction:
“… [T]he source of the instructions, a judge, above the partisan wrestling, wearing a robe and equipped with all the trappings of office, is a source for which the jurors can be expected to feel an exaggerated respect. [Footnote omitted.] Thus, given a choice between the lawyer’s version of the law and the judge’s, the jurors are likely to follow the judge’s; given a choice between two lawyers’ versions, they are likely to follow the one with which the judge agrees. [Footnote omitted.]” (Loftus and Doyle, Eyewitness Testimony (2d ed.) section 12.01, p. 356.)
The California Supreme Court has held that when instructions are “not crucially erroneous, deficient, or misleading on their face … it seems appropriate to evaluate the remarks of both counsel to determine whether the jury received adequate information.” (People v. Brown (1988) 45 C3d 1247, 1256; see also Buchanan v. Angelone (1998) 522 US 269 [139 LEd2d 702; 118 SCt 757] [relying on argument of counsel to “buttress” the conclusion that the jury was not precluded from considering mitigating evidence].) On the other hand, when there is clear instructional error the courts have emphasized that arguments of counsel cannot substitute for instructions by the court:
Kelly v. South Carolina (2002) 534 US 246 [151 LEd2d 670; 122 SCt 726, 730-34] [argument of counsel was insufficient to cure ambiguity as to meaning of life imprisonment]; People v. Cole (2004) 33 C4th 1158, 1204 [presuming that jurors treated “the prosecutor’s comments as words spoken by an advocate in an attempt to persuade,” quoting People v. Clair (1992) 2 C4th 629, 663, fn. 8].
People v. Butler (2010) 187 CA4th 998: Concluding that jurors followed the instructions rather than the argument of the prosecutor.
People v. Miller (96) 46 CA4th 412, 46 CA4th 412, 426 fn 6 [53 CR2d 773]: “While we have no trouble utilizing the argument of counsel to help clear up ambiguities in instructions given, there is no authority which permits us to use argument as a substitute for instructions that should have been given. Logically, this is so, because the jury is informed that there are three components to the trial–evidence presented by both sides, arguments by the attorneys and instructions on the law given by the judge. Jurors are told that their decision must be based on the facts and the law and if counsel says anything that conflicts with the instructions that are given by the judge, they must follow the instructions.” [Emphasis in original.]
People v. Mathews (1994) 25 CA4th 89, 99: “[I]nstruction by the trial court would weigh more than a thousand words from the most eloquent defense counsel.”
People v. Reynolds (1888) 205 CA3d 776, 781: Reliance on CJ 1.00 and CJ 1.03 re: law is given by the court not counsel.
Parker v. Atchison, T & S.F.R. Co. (1868) 263 CA2d 675, 680: “The arguments of counsel are not a substitute for instructions by the court.” (See also People v. Vann (1974) 12 C3d 220, 227, fn 6.)
Carter v. Kentucky (1981) 450 US 288, 304 [67 LEd2d 241]: “[A]rguments of counsel cannot substitute for instructions by the Court.”
Goodwin v. Balkcom (11th Cir. 1982) 684 F2d 794, 803, fn 8: “Any suggestion that counsel’s argument can perfect an otherwise faulty jury charge is totally erroneous. Arguments of counsel can never substitute for the instructions given by the Court.”
United States v. Bernard (9th Cir. 1980) 625 F2d 854, 857: “The Government’s theory that the summation arguments of defendant’s counsel adequately admonished the jury … is unpersuasive. A jury’s response to instructions from the judge is, and should be, quite different from its response to arguments from counsel. Counsel’s argument is neither law nor evidence, and the jury is so instructed.”
United States v. Heyman (4th Cir. 1977) 562 F2d 316, 318: “The testimony of witnesses and the argument of counsel could not render the [instructional] error harmless.”
United States v. Wolfson (5th Cir. 1978) 573 F2d 216, 221: A reviewing court must “look to the words of the trial court, not defense counsel, in determining if jury instructions are adequate. The burden of giving proper instructions is on the judge … and it is his words, not the lawyer’s, which carry an authority bordering on the irrefutable.”
Wade v. Calderon (9th Cir. 1994) 29 F3d 1312, 1321: [“In general a prosecutor’s argument carries less weight than a jury instruction because: ¶ The former are usually billed in advance to the jury as matters of argument, not evidence, and are likely viewed as the statements of advocates; the latter, we have often recognized, are viewed as definitive and binding statements of the law. [Citation to Boyde v. California (1990) 494 US 370, 384 [108 LEd2d 316; 110 SCt 1190].”
Soule v. General Motors Corp. (1994) 8 C4th 548, 586 [34 CR2d 607] Arabian, J., concurring and dissenting: “Counsel’s argument was merely that — argument — unless and until a ratifying instruction from the trial court dignified it with the force of law. As the United States Supreme Court has well observed, ‘It is obvious that under any system of jury trials, the influence of the trial judge on the jury is necessarily and properly of great weight, and that his lightest word or intimation is received with deference, and may prove controlling.’ [Citations.] The omission of a critical charge may, of course, prove to be just as instrumental to the outcome.” [Emphasis in original].
The argument of defense counsel is especially ineffective as a cure for instructional error because defense counsel does not enjoy the respect accorded the judge and prosecuting attorney. (See People v. Edelbacher (1989) 47 C3d 983, 1039-40 [the court noted that the prosecutor did not adopt or endorse defense counsel’s argument but instead criticized it as inaccurate].)
Arguments of counsel do not have “the same force as an instruction from the court.” (Boyde v. California (1990) 494 US 370, 384 [108 LEd2d 316; 110 SCt 1190]; see also Brown v. Payton (2005) 544 US 133 [161 LEd2d 334; 125 SCt 1432] [judge’s instruction to consider all the evidence trumped prosecutor’s argument that post-conviction conduct could not be considered].) For example, in Murtishaw v. Woodford (9th Cir. 2001) 255 F3d 926, 968, the trial court gave a confused and incorrect interpretation of the jury’s sentencing discretion in a death penalty case. The Ninth Circuit held that the error could not be rectified by counsel’s arguments. “This is particularly true given California’s general approach to evaluating a jury’s interpretation of an instruction based on the plain meaning of the language and the judicial presumption that jurors follow the court’s instructions as law and consider attorneys’ statements to be advocates’ arguments.” (255 F3d at 969; Morales v. Woodford (9th Cir. 2003) 336 F3d 1136, 1146 [“The State also argues that the closing arguments by counsel sufficiently educated the jury that intent was essential. We must presume, however, that the jury took the court’s instructions as its authority on the law . . .”]; compare Middleton v. McNeil (2004) 541 US 433, 438 [158 LEd2d 701; 124 SCt 1830] [argument may clarify ambiguous instructions].)
Effect Of Argument On Instructional Error. (People v. Vann (1974) 12 C3d 220, 226-27; People v. Phillips (1997) 59 CA4th 952; People v. Crawford (1997) 58 CA4th 815, 824; People v. Elguera (1992) 8 CA4th 1214 at 1222-23 [omission of an instruction on the prosecution’s burden to prove guilt beyond a reasonable doubt is not cured by the argument of counsel.)
Research Notes: For an in-depth analysis concluding that arguments should not be used to cure instructional errors, see Poulos, John W. “The Lucas Court And The Penalty Phase Of The Capital Trial” 27 USD L. Rev. 521, 627-69 (1990). [A copy of this article is available to FORECITE subscribers. Ask for Article Bank # A-27.]
PG X(G)(3.1) Effect of Argument on Instructional Error: Arguments Of Counsel Carry “Less Weight” Than Instructions.
“[A]rguments of counsel generally carry less weight with a jury than do instructions from the court. The former are usually billed in advance to the jury as matters of argument, not evidence [citation], and are likely viewed as the statements of advocates; the latter, we have often recognized, are viewed as definitive and binding statements of the law.” (People v. Schmeck (2005) 37 C4th 240[internal citations and punctuation omitted]; see also Boyde v. California(90) 494 US 370, 384 [108 LEd2d 316; 110 SCt 1190]; Wade v. Calderon (9th Cir. 1994) 29 F3d 1312, 1321.)
PG X(G)(4) Jury Not Constrained By Theories Advanced By Counsel:
“‘[T]he jury should not be constrained by the fact that the prosecution and defense have chosen to focus on certain theories.’ [Citation].” (People v. Barton (95) 12 C4th 186, 203 [47 CR2d 569]; see also, FORECITE PG X(E)(15) [jury may accept some portion of a witness’ testimony and reject other portions].)
Arguments of counsel cannot alone demonstrate whether or not the jury relied on a particular theory which was presented by the evidence. For example, in People v. Webster (91) 54 C3d 411, 442 [285 CR 31], the prosecution’s argument relied solely upon a theory of robbery based on the defendant’s taking of the victim’s car. On appeal, the defendant argued that the car was not taken from the “immediate presence” of the victim because the force and fear occurred after the parties had walked a substantial distance from the car. The Supreme Court concluded that the evidence provided two additional theories of robbery based on the separate taking of the car key from the victim. Despite the lack of any prosecution argument on these theories (Webster, 54 C3d at 442, fn. 16), the court determined that the jury “could” have relied upon either of them. (Id. at 442.) Thus, regardless of which theories are argued by the prosecutor,People v. Green (80) 27 C3d 1, 69-70 [164 CR 1] and People v. Guiton (93) 4 C4th 1116, 1121-22 [17 CR2d 365] require the reviewing court to examine the validity of “all…theories before the jury.” (Webster, 54 C3d at 442-43, fn. 16 [emphasis by Webster Court]; see also, People v. Guerra (85) 40 C3d 377, 387-88 [220 CR 374] [even had the prosecutor “expressly discounted” the felony-murder theory “[t]here is no principled way for us to determine which theory the jury adopted….”]; see also Suniga v. Bunnell (9th Cir. 1993) 998 F2d 664, 670 [instruction on erroneous theory was reversible even though the theory was not argued by the prosecutor and the evidence as to the correct theory was “very strong.”] Hence, under the rule of Green and Guiton the mere fact that the prosecutor did not argue the erroneous theory should not be sufficient to establish that “no juror relied upon the erroneous instruction….” (People v. Smith (84) 35 C3d 798, 809 [201 CR 311]; see also Stromberg v. California (31) 283 US 359, 369-70 [75 LEd2d 1117; 51 SCt 532]; Cabana v. Bullock (86) 474 US 376, 383, fn 2 [88 LEd2d 704; 106 SCt 689].)
PG X(G)(5) Counsel Should Not Be Permitted To Argue Differing Views Of The Law.
It is inappropriate for the trial court to permit counsel to argue their differing interpretations of the law relating to the charged offense. The trial court is the ultimate authority on the law as far as the jury is concerned. (See Bollenbach v. U.S. (46) 326 US 607, 612 [90 LEd 350; 66 SCt 402]; People v. Mahoney (27) 201 C 618, 626-27 [258 P 607]. One of the court’s central functions is to set forth the law governing the case in jury instructions. “Instructions are given on the relevant law simply because we do not presume a jury composed of lay persons is knowledgeable in the law.” (People v. Whitehurst (92) 9 CA4th 1045, 1050 [12 CR2d 33]; accord Carter v. Kentucky (81) 450 US 288, 302 [67 LEd2d 241; 101 SCt 1112].)
Allowing counsel to argue differing interpretations of the law is equivalent to not giving instructions at all since it results in no judicial guidance as to which of the two differing interpretations should be applied. “It is the trial court’s duty to explain the law to the jury, not to place upon the jury the impossible burden of deciding which of two inconsistent views of the law is correct. (People v. Payton (92) 839 P2d 1035, 1057, Kennard, J., dissenting; see also Griffin v. United States (91) 502 US 46 [116 LEd2d 371; 112 SCt 466].) “The judge is . . . the one responsible for instructing the jury on the law, a responsibility that may not be abdicated to counsel.” (Brown v. Payton (2005) 544 US 133, 147 [161 LEd2d 334; 125 SCt 1432].)
PG X(G)(6) Instructional Error May Result In Failure To Pursue The Matter During Argument To The Jury.
(See People v. Jones (2003) 30 C4th 1084, 1119 [“. . . because the trial court had already refused defendant’s proposed instructions . . . defense counsel may have believed it pointless to pursue the matter in argument to the jury”].)
PG X(G)(7) Counsel’s Argument As To Legal Meaning Of Instruction Is Crucial When Instructions Are Ambiguous Or Insufficient.
When the instructions are ambiguous or insufficient, the jurors may look to arguments of counsel for guidance. (See Middleton v. McNeil (2004) 541 US 433, 438 [158 LEd2d 701; 124 SCt 1830] [argument may clarify ambiguous instructions]; People v. Anzalone (2006) 141 CA4th 380 [IAC for failure to object to prosecutor’s misstatements of the law in argument to the jury]; see also FORECITE PG X(G)(3).) In such cases, the arguments of counsel obviously take on greater importance.
PG X(G)(8) Effect of Argument on Instructional Error: Improper For Counsel To Argue Only Favorable Portion Of An Instruction.
In People v. Holloway (2004) 33 C4th 96, 137 defense counsel was precluded from reading the last sentence of CJ 2.90 as follows:
“DEFENSE COUNSEL: … You’re going to hear a long description of reasonable doubt, but basically it’s defined as that–
“THE COURT: I will give the instruction on reasonable doubt.
“DEFENSE COUNSEL: Okay. I was going to read the last sentence.
“THE COURT: You read the whole thing or not read it at all.
The Supreme Court held that the trial judge acted properly in barring counsel “from giving an incomplete version of the instruction, including only that part favorable to the defense and omitting that part favorable to the People.” (Ibid.)
The same rule should apply to the prosecution. (See Wardius v. Oregon (73) 412 US 470 [37 LEd2d 82; 93 SCt 2208] [lack of balance between prosecution and defense violates due process]; Lindsay v. Normet (72) 405 US 56, 77 [31 LEd2d 36; 92 SCt 862] [arbitrary preference to particular litigants violates equal protection].)
For example, the prosecutor should not be permitted to focus only on the first sentence of CJ 2.90 relating to “mere possible doubt or imaginary doubt.” (See e.g., Brief Bank # B-974; see also FORECITE 2.90 n18.)
There is a persuasive argument to be made that reviewing courts should not rely on the arguments of counsel to cure errors or shortcomings in the jury instructions. (See FORECITE PG X(G)(2); PG X(G)(3), and PG X(G)(4).) However, even if the arguments of counsel are considered logically the rule set forth in People v. Guiton (1993) 4 C4th 1116, 1122 – that a reviewing court cannot assume which alternative theory the jurors followed – should apply when the prosecutor argues alternative theories. Thus, if the prosecutor argued both a correct and incorrect theory the reviewing court has “no way of knowing whether the jury followed [the correct] argument of the prosecutor or whether some members of the jury [followed the incorrect argument].” (People v. Hayes (2009) 171 CA4th 549, 561.) “Where the prosecution presents its case to the jury on alternate theories, one of which is legally correct and one of which is legally incorrect, and the reviewing court cannot tell which theory the jury applied, the conviction must be reversed. [People v. Guiton (1993) 4 C4th 1116, 1122, 1129, 1130].” (Ibid.)
PG X(G)(10) Defense Counsel Forced To Make Closing Argument Without Support Of Instruction.
