SERIES 3400 DEFENSES AND INSANITY
F 3404 Accident
TABLE OF CONTENTS
F 3404 Inst 1 (a & b) Modification Of Burden Shifting Language
F 3404 Inst 2 Jurors Must Unanimously Reject Any Defenses Before Convicting
F 3404 NOTES
F 3404 Note 1 Instruction On Both Accident And Self-Defense
F 3404 Note 2 Duty To Instruct On Accident; Prejudice From Failure To So Instruct [Sample Briefing]
Return to Series 3400 Table of Contents.
F 3404 Inst 1 (a & b) Burden Shifting; Tailoring; Concurrence Of Act And Intent
<General or Specific Intent Crimes>
Alternative a:
*Modify CC 3404, paragraph 1, as follows [added language is underlined; deleted language is stricken]:
[The defendant is not guilty of ________ <insert crime[s]> if unless (he/she) acted [or failed to act] _______________ <insert alleged act> without the intent required for that crime, but acted instead accidentally to _______________ <insert required intent>. You may not find the defendant guilty of ________ <insert crime[s]> unless you are convinced find beyond a reasonable doubt that (he/she) acted _______________ <insert alleged act> with the required intent and not by accident.]
Alternative b:
*Replace CC 3404, paragraph 1, with the following [CC 3400 adaption]:
The prosecution must prove that the defendant committed _______________<insert crime[s]> with the required criminal intent. The defendant contends (he/she) did not have the required intent because (he/she) _______________ <insert alleged act> accidentally. However, the defendant need not prove that (he/she) acted accidentally.
If you have a reasonable doubt that the prosecution has met its burden of proving criminal intent and disproving accident you must find the defendant not guilty.
<Criminal Negligence Crimes>
Alternative a:
*Modify CC 3404, paragraph 2, as follows [added language is underlined; deleted language is stricken]:
[The defendant is not guilty of ________ <insert crime[s]> if unless (he/she) acted [or failed to act] accidentally _______________ <insert alleged act or omission> without criminal negligence. You may not find the defendant guilty of ________ <insert crime[s]> unless you are convinced find beyond a reasonable doubt that (he/she) acted _______________ <insert alleged act> with criminal negligence. Criminal negligence is defined in another instruction. To prove the defendant _______________ <insert alleged act> with criminal negligence, the prosecution must prove beyond a reasonable doubt that the defendant committed the act:
A. In a reckless way that created a high risk of death or great bodily injury to [_______________ <name of alleged victim>] [one or more human beings];
AND
B. A reasonable person in the defendant’s situation would have known that acting as the defendant did would create such a risk;
AND
C. The way the defendant acted was so different from the way an ordinary careful person would have acted in the same situation that the defendant’s acts amounted to disregard for human life or indifference to the consequences of the act.]
Alternative b:
*Replace CC 3404, paragraph 2, with the following [CC 3400 adaption]:
The prosecution must prove that the defendant committed _______________<insert crime[s]> with the required criminal negligence. The defendant contends (he/she) did not have the required intent because (he/she) _______________ <insert alleged act> accidentally. However, the defendant need not prove that (he/she) acted accidentally.
If you have a reasonable doubt that the prosecution has met its burden of proving criminal negligence and disproving accident 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.]
Burden Shifting Language Is Improper—See FORECITE F 401.6 Inst 1; F 404.2 Inst 1.
Defendant Does Not Need To Prove The Defense Theory—See CALCRIM 3400, paragraph 1, sentence 4; see also FORECITE F 100.1 Inst 1.
Modification Of Burden Shifting Language—See FORECITE F 500.2 Inst 2.
Right To Pinpoint Instruction Relating Defense Theory To Prosecution’s Burden Of Proof—See FORECITE F 315.1.2 Inst 2.
Tailoring To Specific Alleged Act—Use of the term “acted” is vague and fails to assure a jurors finding of concurrence of act and intent. (See FORECITE F 251 Inst 3; see also FORECITE F 400.2 Inst 1.)
Tailoring To Specify Required Intent—See FORECITE F 400.2 Inst 1; see also F 417.5 Inst 2.
Improper To Express Burden Of Proof In Terms Of Jurors Being Convinced—See FORECITE F 224 Inst 5.
Incorporation Of Criminal Negligence—See FORECITE F 417.5 Inst 2; F 580.5 Inst 2.
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 3404 Inst 2 Jurors Must Unanimously Reject Any Defenses Before Convicting
See FORECITE F 3500.2 Inst 4.
F 3404 NOTES
F 3404 Note 1 Instruction On Both Accident And Self-Defense
See FORECITE F 510 Note 1.
F 3404 Note 2 Duty To Instruct On Accident; Prejudice From Failure To So Instruct [Sample Briefing]
See Brief Bank # B-982 for briefing on this issue.
