SERIES 3400 DEFENSES AND INSANITY
F 3409 When Conduct of Officer May Not Be Attributed To Defendant
F 3410 Statute Of Limitations
TABLE OF CONTENTS
F 3409 When Conduct of Officer May Not Be Attributed To Defendant
F 3409 Inst 1 Officer/Accomplice: Pinpoint Instruction Relating Defense Theory To Burden Of Proof
F 3410 Statute Of Limitations
F 3410 Inst 1 Preponderance Is Lesser Standard
F 3410 Inst 2 Jurors Must Unanimously Reject Any Defenses Before Convicting
Return to Series 3400 Table of Contents.
F 3409 When Conduct of Officer May Not Be Attributed To Defendant
F 3409 Inst 1 Officer/Accomplice: Pinpoint Instruction Relating Defense Theory To Burden Of Proof
*Replace CC 3409 with the following [CC 3400 Format]:
The prosecution must prove beyond a reasonable doubt that ____________ <insert name of alleged officer accomplice> was an accomplice of the defendant before you may convict the defendant [for the crimes] [based on the acts] committed by ____________ <insert name of alleged officer accomplice>.
The defendant contends that ____________ <insert name of alleged officer accomplice> was not an accomplice of the defendant because ____________ <insert name of alleged officer accomplice> was a law enforcement [officer] [agent] who pretended to be an accomplice of defendant for a law enforcement purpose. The prosecution must prove that the defendant is criminally liable for the [acts of] [crimes committed by ____________ <insert name of alleged officer accomplice>] by proving beyond a reasonable doubt that ____________ <insert name of alleged officer accomplice> was not a law enforcement [officer] [agent] or that (he/she) did not pretend to be an accomplice of defendant for a law enforcement purpose. The defendant does not need to prove these facts. If you have a reasonable doubt about whether ____________ <insert name of alleged officer accomplice> was an accomplice of defendant [or whether the prosecution has proven any other element of the charge], 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—By use of the term “if,” CALCRIM 3409 improperly implies a defense obligation to prove and/or a jury obligation to find the facts in support of the defense theory. (Compare CC 3400.) The above modification, adapted from CC 3400 and CC 3409, is intended to rectify the burden shifting structure of CC 3409.
[See also FORECITE F 3402 Inst 1; FORECITE F 401.6 Inst 1; F 404.2 Inst 1.]
Right To Pinpoint Instruction Relating Defense Theory To Burden Of Proof—See FORECITE F 315.1.2 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 3410 Statute Of Limitations
F 3410 Inst 1 Preponderance Is Lesser Standard
*Modify CC 3410, paragraph 3, sentence 2, as follows [added language is underlined; deleted language is stricken]:
This is a different lesser standard of proof than proof beyond a reasonable doubt.
Points and Authorities
See FORECITE F 418.4 Inst 5.
F 3410 Inst 2 Jurors Must Unanimously Reject Any Defenses Before Convicting
See FORECITE F 3500.2 Inst 4.
