F 103.4 Jurors Must Impartially Consider All The Evidence; Unless Guilt Proven Beyond A Reasonable Doubt Jurors Must Find Defendant Not Guilty

SERIES 100 PRETRIAL INSTRUCTIONS

F 103.4 JURORS MUST IMPARTIALLY CONSIDER ALL THE EVIDENCE; UNLESS GUILT PROVEN BEYOND A REASONABLE DOUBT JURORS MUST FIND DEFENDANT NOT GUILTY

TABLE OF CONTENTS
F 103.4 Inst 1 Any Juror With Reasonable Doubt Must Vote To Acquit
F 103.4 Inst 2 Presumption Of Innocence Should Be Applied To Each Defendant Individually
F 103.4 Inst 3 Burden Of Proof: Definition Of Burden
F 103.4 Inst 4 (a & b) Rejection Or Disbelief Of Defense Evidence Does Not Satisfy The Prosecution’s Burden Of Proof
F 103.4 Inst 5 Prosecution Bound by Defendant’s Statement Unless Contrary Evidence Presented
F 103.4 Inst 6 Duty To Presume Defendant Innocent: No Necessity For Defendant To Produce Evidence
F 103.4 Inst 7 Clarification Of The Burden Of Proof When One Defendant Points The Finger At Another
F 103.4 Inst 8 Strong Suspicion No Substitute For Proof Beyond A Reasonable Doubt

Return to Series 100 Table of Contents.

F 103.4 Inst 1 Any Juror With Reasonable Doubt Must Vote To Acquit

*Modify CC 103, paragraph 4, sentence 2, as follows [added language is underlined]:

In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves] the defendant[s] guilty beyond a reasonable doubt, (he/she/they) (is/are) entitled to an acquittal and each of you who has such a doubt must vote to find (him/her/them) not guilty.

Points and Authorities

Each juror is obligated to decide the case individually and vote accordingly. (See FORECITE F 100.7 Inst 2.)

F 103.4 Inst 2 Presumption Of Innocence Should Be Applied To Each Defendant Individually

*Modify CC 103, paragraph 4, sentence 2, as follows [added language is underlined; deleted language is stricken]:

Unless If the evidence fails proves the any defendant[s] guilty beyond a reasonable doubt, (he/she/they) (is/are) entitled to an acquittal and each of you who has such a doubt must vote to find (him/her/them) not guilty.

Points and Authorities

Individual Juror Determination—See FORECITE F 100.7 Inst 2.

By using the terms “they” and “them,” CALCRIM 103 improperly suggests that the presumption of innocence is collective rather than individual.

Separate Consideration Of Codefendants—The instructions should assure that the case against each codefendant is evaluated and decided separately as to that individual. This instruction is required by the federal constitutional rights to due process and fair trial by jury (6th and 14 Amendments), which place the burden on the prosecution to prove every essential fact and element of the charge beyond a reasonable doubt. (In re Winship (1970) 397 US 358 [90 SCt 1068; 25 LEd2d 368]; Jackson v. Virginia (1979) 443 US 307, 315-18 [99 SCt 2781; 61 LEd2d 560].)

These provisions are violated by instructions or procedures which allow the jurors to convict the defendant based on association with another person rather than proof beyond a reasonable doubt of the defendant’s guilt. (Smith v. Kelso (11th Cir. 1989) 863 F2d 1564; United States v. Tootick (9th Cir. 1991) 952 F2d 1078; Abbott v. Wainwright (5th Cir. 1980) 616 F2d 889; Bird v. Wainwright (5th Cir. 1970) 428 F2d 1017.)

Identification Of Parties—See FORECITE 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 2.7 [Guilt By Association]
FORECITE CG 9.4.1 [Codefendants: Generally]

In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

F 103.4 Inst 3 Burden Of Proof: Definition Of Burden

*Add to CC 103:

A burden of proof draws a line. If the prosecution fails to cross that line, regardless of how close it may have come, then the prosecution has not met its burden of proof.

Points and Authorities

Most of the litigation concerning the standard reasonable doubt instruction (CJ 2.90, now CC 103) has centered around the definition of reasonable doubt. (See notes to CJ 2.90.) However, an aspect of the instruction which has not been specifically addressed is the failure of CJ 2.90 (and now CC 103) to define the meaning of the term “burden of proving.” A case could be made for the proposition that this term has a technical legal meaning requiring sua sponte definition. (See People v. McElheny (1982) 137 CA3d 396, 403-04.) However, even if there is no sua sponte obligation to define the term, a party has the right to clarification of instructions upon request. (See People v. Medina (1990) 51 C3d 870, 902.) Hence, the above instruction adapted, from People v. Mixon (1990) 225 CA3d 1471, 1484, should be given when requested in order to protect the defendant’s federal (6th and 14th Amendment) constitutional rights to trial by jury and due process.

Identification Of Parties—See FORECITE 100.2 Note 1.

Potential constitutional grounds for this request include, but are not limited to:

FORECITE CG 2.1 [Burden Of Proof: Failure To Adequately Define]

In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

RESEARCH NOTES

See FORECITE BIBLIO 2.90.

CALJIC NOTE: See FORECITE 2.90a.

F 103.4 Inst 4 (a & b) Rejection Or Disbelief Of Defense Evidence Does Not Satisfy The Prosecution’s Burden Of Proof

*Add to CC 103:

Alternative a:

This burden requires the prosecution to present affirmative evidence of guilt. However, rejection or disbelief of the defense evidence does not create such affirmative evidence. Even if you should reject all or part of the defense evidence, you may not convict the defendant unless the prosecution has presented other evidence which you believe to prove guilt beyond a reasonable doubt.

Alternative b:

As I have instructed you, you are the sole judges of the credibility of witnesses and of the weight to be given the testimony of each. If, however, you should disbelieve the testimony of a witness, that circumstance does not warrant your finding that the direct opposite of such testimony is true, for disbelief in testimony, in whole or in part, is not the equivalent of affirmative evidence to the contrary of the disbelieved testimony.

Points and Authorities

“[D]isbelief of a witness does not establish that the contrary is true, only that the witness is not credible. [Citations.] “ (People v. Woodberry (1970) 10 CA3d 695, 704.) Hence, “rejection of testimony ‘does not create affirmative evidence to the contrary of that which is discarded.’ [Citation.]” (Edmondson v. State Bar (1981) 29 C3d 339, 343; see also In re Anthony J. (2004) 117 CA4th 718, 733 [trial court’s rejection of defendant’s version of the events did “not matter” because “[t]here still was no positive evidence introduced supplying the necessary elements …” ]; People v. Brown (1989) 216 CA3d 596, 600 [officer’s testimony “[gave] equal support to two inconsistent inferences” regarding which color lights were activated, and therefore “neither [were] established” ]; People v. Acevedo (2003) 105 CA4th 195, 197 [evidentiary gap could not be filled by presumption that it was the police officer’s official duty to have his vehicle equipped with a red light visible from the front]; People v. Farnam (2002) 28 C4th 107, 143.)

Accordingly, when the prosecution has failed to present sufficient credible evidence to meet its burden of proof, the jury should not be permitted to utilize its disbelief of the defendant’s testimony or other defense evidence to conclude that the prosecution’s burden has been met. (See FORECITE F 100.1 Inst 1; cf., Deerings EC 702, “Suggested Forms.” )

The failure to adequately inform the jury concerning this principle implicates the defendant’s federal constitutional rights to trial by jury and due process (6th and 14th Amendments) by allowing the jury to convict the defendant even though the prosecution has not met its burden of proving the defendant guilty beyond a reasonable doubt. (In re Winship (1970) 397 US 358 [25 LEd2d 368; 90 SCt 1068]; see also FORECITE F 100.1 Inst 1.)

Identification Of Parties—See FORECITE 100.2 Note 1.

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 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge]

In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

CALJIC NOTE: See FORECITE F 2.90b.

F 103.4 Inst 5 Prosecution Bound by Defendant’s Statement Unless Contrary Evidence Presented

*Add to CC 103:

The prosecution, having presented as part of its case the statements of the defendant as to [his] [her] lack of [lewd] intent, is bound by that evidence in the absence of proof to the contrary.

This burden requires the prosecution to present competent and substantial evidence to disprove defendant’s statement that [he] [she] __________ <e.g. acted in self-defense> Unless the prosecution has presented credible evidence contrary to defendant’s statement that [he] [she] __________, the prosecution is bound by that statement and you may not find defendant guilty.

Points and Authorities

The prosecution, having presented defendant’s statement in order to prove their case, is bound by that statement and its explanation for the conduct in the absence of proof to the contrary. (People v. Lines (1975) 13 C3d 500, 505-06; People v. Collins (1961) 189 CA2d 575, 589.) Hence, to meet its federal constitutional burden to prove guilt beyond a reasonable doubt (14th Amendment), the prosecution must present “competent and substantial evidence” beyond the defendant’s statement to establish guilt.

Identification Of Parties—See FORECITE 100.2 Note 1.

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 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge]
FORECITE CG 11.3 [Prosecution Misconduct: Inconsistent Theories]

In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

NOTES

This rule is analogous to the principle that rejection of a party’s evidence does not create affirmative evidence to the contrary and is not alone sufficient to establish guilt. (See FORECITE F 103.4 Inst 4.)

CALJIC NOTE: See FORECITE F 2.90c.

F 103.4 Inst 6 Duty To Presume Defendant Innocent: No Necessity For Defendant To Produce Evidence

*Add to CC 103:

I take this occasion to state to the jury one of the fundamental principles of American jurisprudence, which is that the burden is upon the [prosecution] in a criminal case to prove every essential element of every alleged offense beyond a reasonable doubt. That is, the burden is upon the [prosecution] to prove guilt beyond a reasonable doubt. This burden never shifts throughout the trial. The law does not require a defendant to prove his innocence or to produce any evidence. There’s no burden on [defendant] to produce any evidence. In every case, and I have no doubt in this case as well, the defendant will be presenting evidence by way of cross-examination of [prosecution] witnesses. The defendant relies upon evidence elicited by cross-examination. So that the opportunity that [defendant] will have, as the defendant in every case has, to bring out certain facts by way of cross-examination and by way of argument and analysis to the jury, does not in any way imply a necessity on the part of the defendant to produce any evidence. That’s fundamental. There is no need of the defendant to produce any evidence. There is no need in law for him to take advantage of the opportunity. He doesn’t have to put a single question on cross-examination if counsel decides not to do so. The bottom line is that the burden is on the [prosecution] to prove guilt beyond a reasonable doubt. There is no burden on the defendant to prove his innocence, and there’s no burden on the defendant to come forward with a single item of evidence or testimony.

Points and Authorities

This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]

Propriety Of Instruction – The above instruction was given in U.S. v. Maccini (1st Cir. 1983) 721 F2d 840, 843, in response to an implication by the prosecutor in the opening statement that the defendant would be presenting evidence. However, even absent such a statement by the prosecution, the jury should understand that the defendant has no obligation to present evidence and that any attempt by the defendant to present evidence – either through cross-examination or by affirmative testimony – does not alter the burden of the prosecution. (See People v. Hill (1998) 17 C4th 800, 831 [… [T]o the extent [the DA] was claiming there must be some affirmative evidence demonstrating a reasonable doubt, she was mistaken as to the law, for the jury may simply not be persuaded by the prosecution’s evidence…]; People v. Woods (2006) 146 CA4th 106, 112-13 [A prosecutor may not suggest that “a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence.”].) [See also FORECITE PG VII(C)(8).]

See also FORECITE F 100.1 Inst 1.

Identification Of Parties—See FORECITE 100.2 Note 1.

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 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge]

In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

CALJIC NOTE: See FORECITE F 2.90d.

F 103.4 Inst 7 Clarification Of The Burden Of Proof When One Defendant Points The Finger At Another

*Add to CC 103:

It is crucial that you understand that only the prosecution, not a defendant, bears the burden of proof. In this case, both the defendant ____________ and the prosecution contend that codefendant _______ is guilty of ____________. However, because the prosecution has the burden of proof and defendant________ does not, your decision as to whether codefendant ________ committed _______must actually be made twice under two different standards.

One decision must be made as to whether the prosecution has met its burden of proving _________ guilty of _____ beyond a reasonable doubt.

The other decision must be made as to whether the evidence of _______ guilt leaves you with a reasonable doubt as to the guilt of defendant ___________.

Thus, even if you decide that the prosecution failed to prove _______ guilty of _______ beyond a reasonable doubt, this does not prevent you from deciding that there still is enough evidence of codefendant’s guilt to leave you with a reasonable doubt as to the guilt of the defendant.’

Points and Authorities

In multi-defendant trials when one defendant points the finger at another, the jury is required to perform the difficult task of judging a single factual issue under two distinct standards. In other words, when one defendant contends that the other is the guilty party, or otherwise is culpable, such as having provoked an altercation, the situation is analogous to third party guilt situations where the evidence of the other party’s guilt need only leave the jury with a reasonable doubt as to defendant’s guilt. (See People v. Hall (1986) 41 C3d 826, 833; FORECITE F 4.020; see also FORECITE F 100.1 Inst 1.) However, when the alleged third party is a codefendant in the trial, the jury must also judge the party’s guilt under the prosecution’s burden of proof beyond a reasonable doubt. In such cases, there is a danger that the jury may not differentiate between the two different standards and reject the defendant’s contention that the co-defendant is guilty or culpable on the basis that the prosecution did not succeed in proving the co-defendant guilty beyond a reasonable doubt.

The above instruction is intended to clarify this distinction which is a difficult task due to the complexity of the principles involved. It is likely that the concept will have to be elucidated in argument to the jury.

Identification Of Parties—See FORECITE 100.2 Note 1.

Potential constitutional grounds for this request include, but are not limited to:

FORECITE CG 2.1 [Burden Of Proof: Failure To Adequately Define]
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge]

In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

PRACTICE NOTE: The complexity of this legal principle and difficulty of the jury in understanding it should be an added basis for severance. (See People v. Massie (1967) 66 C2d 899, 916; see Calderon v. Superior Court (2001) 87 CA4th 933 [multiple defendants charged with crimes arising from separate, unrelated incidents should not be tried together if it would result in unfair prejudice].)

CALJIC NOTE: See FORECITE F 2.90j.

F 103.4 Inst 8 Strong Suspicion No Substitute For Proof Beyond A Reasonable Doubt

*Add to CC 103:

An abiding conviction based on proof beyond a reasonable doubt is the highest level of certainty recognized in the law. A strong suspicion that someone is involved in criminal activity is no substitute for proof beyond a reasonable doubt.

Points and Authorities

“Evidence which merely raises a strong suspicion of the defendant’s guilt is not sufficient to support a conviction. Suspicion is not evidence; it merely raises a possibility, and this is not a sufficient basis for an inference of fact.” (People v. Redmond (1969) 71 C2d 745, 755; see also Jackson v. Virginia (1979) 443 US 307, 315-18 [99 SCt 2781; 61 LEd2d 560] [near certitude required]; People v. Martin (1973) 9 C3d 687, 695; In re Leanna W. (2004) 120 CA4th 735, 741; People v. Briggs (1967) 255 CA2d 497, 500-501; People v. Tatge (1963) 219 CA2d 430, 435-436; Piaskowski v. Bett (7th Cir. 2001) 256 F3d 687; Johnson v. State (OK 1988) 764 P2d 530, 535; Whaley v. Commonwealth (VA 1973) 200 SE2d 556, 558.)

Moreover, when a fact is inferred based on a mere possibility or suspicion, it cannot be said “with substantial assurance” that the inference is “more likely than not” to flow from the underlying facts. Therefore, such an inference is constitutionally deficient. (See Ulster County v. Allen (1979) 442 US 140, 157 [60 LEd2d 777; 99 SCt 2213] [instruction embodying a permissive inference may be unconstitutional “if, under the facts of the case, there is no rational way the trier of fact could make the connection permitted by the inference” ]; Leary v. U.S. (1969) 395 US 6, 36 [23 LEd2d 57; 89 SCt 1532] [permissive presumption is unconstitutional “unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact upon which it is made to depend” ]; Schwendeman v. Wallenstein (9th Cir. 1992) 971 F.2d 313, 316.)