SERIES 3400 DEFENSES AND INSANITY
F 3402 Duress Or Threats
TABLE OF CONTENTS
F 3402 Inst 1 Modification Of Burden Shifting Language
F 3402 Inst 2 Delete Argumentative Language
F 3402 Inst 3 Jurors Must Unanimously Reject Any Defenses Before Convicting
F 3402 Inst 4 Duress Applies To Threat Of Great Bodily Injury
Return to Series 3400 Table of Contents.
F 3402 Inst 1 Modification Of Burden Shifting Language
*Replace CC 3402 as follows [CC 3400 Format]:
The prosecution must prove that the defendant committed _______________ <insert crime[s] charged> with the required criminal intent and/or mental state. The defendant contends that (he/she) did not have the required [intent] [and] [or] [mental state] due to duress which caused (him/her) to reasonably believe that (his/her [or] someone else’s) life would be in immediate danger if (he/she) refused a demand or request to commit the [alleged][ crime. The prosecution must prove that the defendant committed the [alleged] crime without duress as defined above.
The defendant does not have to prove that (he/she) committed the [alleged] crime under duress. If you have a reasonable doubt about whether the prosecution has met this burden you must find the defendant not guilty.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency—CALCRIM 3402 is improperly contradictory and conflicting. Paragraphs 1-3 unconstitutionally shift the burden of proof by requiring the defendant to establish certain facts. (See FORECITE F 100.1 Inst 1; F 315.1.2 Inst 2.)
Right To Pinpoint Instruction Relating Defense Theory To Burden Of Proof—See FORECITE F 315.1.2 Inst 2.
See FORECITE F 401.6 Inst 1; F 404.2 Inst 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 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 3402 Inst 2 Delete Argumentative Language
*Delete CC 3402, paragraph 3:
A threat of future harm is not sufficient; the danger to life must have been immediate.
Points and Authorities
See FORECITE F 416.3 Inst 4.
F 3402 Inst 3 Jurors Must Unanimously Reject Any Defenses Before Convicting
See FORECITE F 3500.2 Inst 4.
F 3402 Inst 4 Duress Applies To Threat Of Great Bodily Injury
*Modify CC 3402, paragraph 1, sentence 2 to provide as follows [added language is underlined]:
The defendant acted under duress if, because of threat or menace, (he/she) believed that (his/her/ [or] someone else’s) life would be in immediate danger or that (he/she) would suffer great bodily injury if (he/she) refused a demand or request to commit the crime[s].
Modify paragraph 2, sentence 1 to provide as follows:
The defendant’s belief that (his/her/ [or] someone else’s) life was in immediate danger or that (he/she) would suffer great bodily injury must have been reasonable.
Modify paragraph 3 to provide as follows:
A threat of future harm is not sufficient; the danger to life or the threat of great bodily injury must have been immediate.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency – There is a conflict among the cases on the requisite of whether fear of great bodily injury will justify a duress defense. (See CC 3402, Related Issues.)
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 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
