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FORECITE Winter 2012 Newsletter

Please note that this page only contains the table of contents of the Winter 2012 newsletter.

Please select the link below to download the latest FORECITE newsletter in its entirety.

WINTER 2012 FORECITE NEWSLETTER
(Right Click on link and "Save As")


Winter 2012 FORECITE Newsletter
Table of Contents

PRACTICE GUIDE

PG I(B)(1) Duty Of Court To Go Beyond The Standard Pattern Instructions: Jury Instructions Are Not The Law—They Attempt To State The Law
PG I(H)(6) Precedential Hierarchy: Stare Decisis, Law Of The Case, Etc.: Situations Where Higher Authority Is Not Controlling
(a) Cases Not Authority For Propositions Not Considered
(b) Higher Authority May Be Distinguished
(c) Lower Courts Not “Gagged” By Higher Authority
PG III(A) Defendant’s Right To Directly Relate The Theory Of Defense To An Element Of The Charge: Sufficiency Of Evidence To Support Defense Instructions
PG III(B) Improper Argumentative vs. Proper Pinpoint Instructions
PG III(B) Sufficiency Of Evidence To Support Defense Instructions
PG V(I)(B)(2) Insignificant Discrepancies: Presumption That Jurors Followed Written Instructions
PG VI(A)(1.1)

Cognizability: PC 1259

PG VI(A)(1.3) Duty Of Counsel To Object: Futile Objections Need Not Be Raised
PG VI(A)(1.15.2) Trial Objection On Non-Constitutional Ground: Trial Counsel Need Not State The “Legal Consequence” Of An Adverse Ruling To A Trial Objection
PG VI(A)(1.15.3) Trend Toward Forfeiture Of Instructional Issues
PG VI(A)(1.21)

Role Of CALCRIM Bench Notes

PG VI(A)(9) Invited Error/Estoppel: Applicability To Prosecution
PG VI(A)(9.1) New Theory On Appeal
PG VI(A)(9.2) Prosecution Reliance On Incompatible Theories – Judicial Estoppel
PG VI(A)(11) Invited Error: Reviewing Court Not Permitted To Look To Closing Argument For Possible Tactical Reason For Counsel’s Omission
PG VI(A)(12) Mere Failure To Request An Instruction Is Not Invited Error
PG VI(A)(13) Role Of CALCRIM Bench Notes
PG VII(C)(43.1) Hearsay May Violate Due Process In Addition To Confrontation
PG X(A)(1) Rules For Determining Whether The Evidence Justifies An Instruction
(1.1) Substantial Evidence
(1.2) Sufficiency Determination Must Be Made Without Reference To
Credibility Of The Evidence
(1.3) Evidence Must Be Viewed In Favor Of The Instruction
(1.3.1) Defendant’s Testimony Constitutes Substantial Evidence Even If
Implausible And Seriously Contradicted
PG X(B)(2) Per Se Reversal Rule Applies To "Structural" Errors And Errors Which Preclude Meaningful Review
PG X(E)(12)(c) Short Deliberation Does Not Cure Prejudice
PG X(F) Indicia Of A Close Case:
Prejudice Not Cured By Relatively Short Deliberations
Split Verdict Reflecting Jury’s Selective Acceptance Of Defense And Prosecution Evidence

CALCRIM PRACTICE GUIDE

PG XI(A)(1) CALCRIM Is Not The Law
PG XI(C)(4) Evaluating CALCRIM Instructions In Light Of Cases Discussing Analogous CALJIC Instructions
PG XI(G)(1.1) Request For CALCRIM Instruction Does Not Preserve Issues Included In Bench Notes
PG XI(I) Role Of CALCRIM Bench Notes
PG XI(J) Judicial Notice Of CALCRIM Instructions

CHECKLISTS

CHK III(D) Technical Terms: Checklist
CHK IV(J) Rules Of Statutory Construction: Two Laws On The Same Subject
Specific Statute Preempts General Statute
Specific Preempts General: Separate Statute vs. Subdivision Not Determinative

LIO VI (LIO CHK) LESSER INCLUDED CHECKLIST

PC 203 Mayhem
PC 246 Shooting At Occupied Dwelling/Vehicle
PC 261(a)(4) Rape Of An Unconscious Person
PC 4500 Aggravated Assault By Life Prisoner

CALCRIM

F 101.1 Inst 1 Reference To Juror By Number Without Showing Of Good Cause Under CCP 237 (Los Angeles County Procedure)
F 101.1 Inst 2 Reference To Juror By Number Based On Showing Of Good Cause Under CCP 237
F 101 Note 7

Juror Experiments During Trial Or Deliberations

F 105.2 Inst 2 Listed Factors Are Not Exclusive; Consider Relevant Factors; Do Not Consider Irrelevant Factors
F 105.3.14 No Limitation On Consideration Of Punishment Of Witness Granted Immunity/Leniency
F 200.1.2 Note 2 Whether Written Instructions Should Include Descriptive Titles
F 204 Inst 3 (a-f) Cautionary Instruction: Courtroom Security
F 306 Note 4 Untimely Discovery: CJ 2.28 Disapproved
F 315 Note 18 New Jersey Supreme Court Issues Major Decision On Eyewitness Identifications
F 315 Note 19 The Manson v. Brathwaite (1977) 432 US 98 Test Needs To Be Revised
F 315 Note 20 Factors Affecting Reliability Of Eyewitness Identification
F 315 Note 21 Eyewitness: Need For “Enhanced” Jury Instructions
F 316(¶ A) Note 7 Moral Turpitude Properly Defined In Terms Of "Readiness To Do Evil"
F 358 Note 13 Defendant’s Unrecorded Out-Of-Court Statement: Sua Sponte Requirement
F 362.2 Inst 6 Consciousness Of Guilt Only Applicable To False Statements Made Before Trial
F 362 Note 6 False Statement Instruction As Prosecution Pinpoint Instruction
F 370 Inst 11 Challenge To Motive Instruction As Argumentative And Confusing
F 371(A-2) Inst 4 Suppression of Evidence: Limitation To Applicable Co-Defendant
F 371(A-2) Inst 5 Suppression of Evidence: Jury Not To Consider Suppression By Uncharged Accomplice As To Defendant
F 371(C-2) Inst 5 Suppression of Evidence By Third Party: Jury Not To Consider Suppression By Uncharged Accomplice As To Defendant
F 372.1 Inst 6 Flight Instruction: Objection By Defendant Precludes Cautionary/Limiting Instruction Which Benefits The Defendant
F 372.2 Inst 4 Flight: Limitation To Applicable Co-Defendant
F 372.2 Inst 7 Flight Not Applicable To Use Of A Vehicle To Evade Arrest (VC 2800.1 & 2800.2)
F 372.4 Inst 2 Flight – Application To Third Party
F 372 Note 7 Defendant Should Be Able To Waive Giving Of Flight Instruction Since Its Purpose Is To Protect The Defendant
F 372 Note 10 Consciousness Of Guilt As Improper Comment On The Evidence
F 372 Note 13 Merely Leaving A Location Does Not Justify A Flight Instruction
F 400 Note 13 Propriety Of Pinpoint Instruction On Factors Relevant To Aiding And Abetting
F 401.3 Inst 4 Jurors Should Consider Presence Or Absence Of The Defendant As To Aiding And Abetting
F 416.3 Inst 4 Improper Argumentative And Duplicative Reference To Matters Which The Prosecution Does "Not Have To Prove"
F 416.3 Inst 7 Argumentative Language Should Be Balanced To Assure Jurors Consider All Relevant Evidence
F 460 Note 2

Attempt Instruction Restates Common Meaning Of Attempt

F 570.4 Inst 2 Voluntary Manslaughter: Modification Of Burden Shifting Language
F 571 Note 4 Imperfect Self-Defense: Instruction Warranted If Ordinary Self-Defense Instruction Is Warranted
F 600.5 Inst 2 (a & b) Attempted Murder: Modification Of "Killing Zone" Instruction
F 725 Note 6 2004 Enlargement Of Witness-Murder Statute Should Not Apply To Pre-Enlargement Cases
F 821.6 Inst 1 (a & b) Parental Discipline As Defense Theory
F 823 Note 13 Felony Child Abuse: Parental Discipline And Self Defense As Potential Defenses
F 1000.6 Inst 8 Pre-Penetration Withdrawal Of Consent Must Be Communicated Through Word Or Act
F 1111.5 Inst 3 Lewd Act With Child: Definition Of Duress
F 1400 Note 24 Gang Enhancement And Use Of Firearm
F 1600.5 Inst 8 Robbery: Victim’s Fear Must Be Objectively Reasonable
F 2180 Note 2 Evading Police Officer Requires Specific Intent
F 2300.6 Inst 4 Minimal Movement Within A Residence Or Confined Area Is Not Transportation
F 3115 Note 16 Gang Enhancement And Use Of Firearm
F 3308 Note 24 Collateral Estoppel: Not Applicable Against Defendant If Factual Determination Is Not Final
F 3517 Inst 3 Jury Should Be Instructed Upon Partial Verdict
F 3518 Note 2 Jury Should Be Instructed Upon Partial Verdict
F 3530 Note 4 Improper For Trial Judge To Direct Jury To Matters Adverse To The Defense In Guise Of "Comment On The Evidence"
F 3550 Inst 9 No Limitation On Consideration Of Punishment Of Witness Granted Immunity/Leniency

CALJIC

F 17.42a Jury Not To Consider Penalty: Modification When Witness Testifies Pursuant To Bargain With Prosecution

FORECITE User’s Manual

ANNOTATED LIST OF CALCRIM INSTRUCTIONS
DISCUSSED IN THE CASE LAW: Fall 2007 – Winter 2012

72 new annotations (over 480 annotations total) on over 195 CALCRIM instructions

RECENT CASE LAW UPDATE


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