CC 200 Does Not Cure DA’s Misstatement of the Law When Instructions Are Silent on the Issue
August 5th, 2021
CC 200, paragraph 4, admonishes the jurors as follows: If you believe that the attorney’s comments on the law conflict with my instructions, you must follow my instructions. Typically reviewing courts rely on this admonition to assume that the jurors relied on the instructions instead of the arguments of counsel. When argument runs […]
Tags: Appeal, CC 200, Standard of Prejudice, Strategy Notes and Practice Ideas
Overcoming the “Walking Dictionary Myth” When Instructing the Jury
March 17th, 2021
Jury instruction jurisprudence attempts to draw a “bright line” distinction between terms which have a technical, specialized legal meaning and those which are defined by their common dictionary meaning. On one side of this “bright line” the trial judge must sua sponte define terms which have a “technical meaning peculiar to the law.” (See People […]
Tags: CC 200, CC 761, Defense Theory Instructions, Sua Sponte
Written Jury Instructions: Trial Procedure Note
September 2nd, 2016
Often the record below does not establish that the packet of instructions in the Clerk’s Transcript is the actual packet the jurors received (or an exact copy of the jurors’ packet). The Rules of Court do not expressly require that the written instructions be included in the Clerk’s Transcript. (See Rule 8.320; 8.610 for death […]
Tags: Appeal, CC 200, Oral Instructions, Written Instructions
No Written Instruction? Oral Instruction Not Vitiated
August 31st, 2016
This post “Variance Between Reporter’s Transcript And Written Instructions” discussed which instruction controls – for purposes of appellate review – when the written and oral versions of the instruction are different. A corollary issue arises when a particular instruction was completely omitted from either the written or oral versions of the instruction. In People v. […]
Tags: Appeal, CC 200, Oral Instructions, Written Instructions
Variance Between Reporter’s Transcript And Written Instructions
July 22nd, 2016
—Case By Case Analysis When there is a variance between the reporter’s transcript and the written instructions, a case by case analysis is used to determine which part of the record is more credible. (People v. Smith (1983) 33 C3d 596, 599; see also People v. Carter (2003) 30 C4th 1166, 1199 [“where the clerk’s […]
Tags: Appeal, CC 200, Oral Instructions, Written Instructions
Does Implausible or Illogical Testimony Warrant Instructing Per CC 361 on Defendant’s Failure to Explain or Deny Evidence?
March 10th, 2015
In People v. Cortez, S211915 (B233833; nonpublished opinion; (Cal. Sept. 18, 2013) the Supreme Court granted the prosecution’s petition for review to consider, the following issues: In the petition for review the attorney general characterized these issues as follows: 1. May a court instruct the jury with CALCRIM No. 361 on the failure […]
Tags: Beyond A Reasonable Doubt, Burden Of Proof, CC 103, CC 200, CC 361, Defendant's Failure to Explain or Deny Evidence, Defendant's Out Of Court Statements
