SERIES 200 POST-TRIAL: INTRODUCTORY
F 225 CIRCUMSTANTIAL EVIDENCE: INTENT OR MENTAL STATE
TABLE OF CONTENTS
F 225 Inst 1 Circumstantial Evidence To Prove Intent Or Mental State: Inculpatory Versus Exculpatory Mental States
F 225 Inst 2 Mere Suspicion Or Possibility Insufficient For Inference Of A Fact
F 225 Inst 3 Modification For Crimes Involving “Specific Intent” And “Mental State”
F 225 Inst 4 Knowledge As Mental Element
F 225 Inst 5 Limitation Of Reasonable Doubt/Burden Of Proof Principles To Circumstantial Evidence Improperly Implies That Such Principles Do Not Apply To Direct Evidence
F 225 Inst 6 Applicability Of Circumstantial Evidence Principles To Expert Testimony
F 225 Inst 7 Improper To Define Burden Of Proof In Terms Of Being Convinced Or Satisfied
F 225 NOTES
F 225 Note 1 Unconstitutional Inference Argument Rejected
F 225 Note 2 Circumstantial Evidence Instruction Applicable When Circumstantial Evidence Relates To Intent
F 225 Note 3 Applicability Of Circumstantial Evidence Principles To Expert Testimony
F 225 Note 4 Mental State And Intent Are Normally Proven By Circumstantial Evidence
Return to Series 200 Table of Contents.
F 225 Inst 1 Circumstantial Evidence To Prove Intent Or Mental State: Inculpatory Versus Exculpatory Mental States
*Add to CC 225 when appropriate:
As to the [specific intent] [knowledge] [and] [mental state] included in the definition of _______ <insert exculpatory defense or theory: e.g., self-defense, heat of passion, duress, etc.> if the evidence permits two reasonable interpretations, one of which points to the existence of the [specific intent] [or] [mental state] and the other to its absence, you must adopt that interpretation which points to its existence.
Points and Authorities
Application Of CALCRIM 225 To Exculpatory Facts—As currently worded, CALCRIM 225 undermines the salutary constitutional principles of proof beyond a reasonable doubt which it is intended to promote in cases where the jury is required to make determinations as to exculpatory mental states of the defendant.
It is well established that the state and federal constitutions require the prosecution to prove the defendant guilty beyond a reasonable doubt. (See In re Winship (1970) 397 US 358, 364 [25 LEd2d 368; 90 SCt 1068]; People v. Carter (1957) 48 C2d 737, 758-61; Jackson v. Virginia (1979) 443 US 307, 339 [61 LEd2d 560; 99 SCt 2781]. From these principles flow the equally-established principle that the prosecution does not meet its burden when there are two equally reasonable inferences to be drawn from the evidence. (See Turner v. U.S. (1970) 396 US 398, 423 [24 LEd2d 610; 90 SCt 642] [evidence must provide a reasonable basis to conclude that one inference is more probable than the other]; see also U.S. v. Ramirez-Rodriguez (9th Cir. 1997) 552 F2d 883, 844.) When conflicting inferences are equally probable, in other words, when the evidence is in equipoise, the party with the burden of proof loses. Simons v. Blodgett (9th Cir. 1997) 110 F3d 39, 41-42; see also Wilson v. Caskey (1979) 91 CA3d 124, 129 [“equal probability does not satisfy a burden of proof…” ].)
CALCRIM 225 and CALCRIM 224 purport to instruct the jury upon this crucial aspect of the burden of proof in the context of circumstantial evidence. However, the wording of CALCRIM 225 is such that the jury may apply the principle incorrectly to mental states, which are exculpatory, such as self defense, duress, heat of passion, etc. (See FORECITE F 3517 Inst 2 [reasonable doubt as to greater or lesser verdict must be resolved in favor of the lesser].) The current version of CD 225 simply tells the jury that it must “adopt that interpretation which points [to the absence of the mental state] if there are two reasonable interpretations from the evidence.” Obviously, if the jury were to follow this instruction with respect to the determination of an exculpatory mental state, the burden would be turned around and the defendant’s constitutional rights undermined.
Accordingly, CALCRIM 225 should be modified as set forth above.
Knowledge As Mental Element—See FORECITE F 225 Inst 4.
Identification Of Parties—See FORECITE F 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 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.5 [Right To Present Evidence And Fair Opportunity To Defend]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CAVEAT I: This instruction is included for use in cases where the defendant is relying upon an exculpatory mental state such as heat of passion to obtain a lesser verdict. However, where the prosecution is relying on such a mental state to support its theory, and the defense is contesting the evidence of the mental state, this modification of CALCRIM 225 would not be appropriate.
CAVEAT II:As to defense theories which the prosecution must disprove beyond a reasonable doubt (e.g., self-defense), the instructions should not imply a defense obligation to prove or establish any of the so-called elements of the defense theory. (See Constitutional Grounds 4.2.)
CALJIC NOTE: See FORECITE F 2.02a.
F 225 Inst 2 Mere Suspicion Or Possibility Insufficient For Inference Of A Fact
*Add CC 225:
Alternative a:
You may not infer a fact based on a mere possibility that the prosecution has proven it. A mere possibility is nothing more than a suspicion, which is not a sufficient basis for an inference that a fact has been proven.
Please remember, the defendant is not required to prove any fact.
Alternative b:
You may not infer a fact based on a mere possibility that the fact is true. A mere possibility is nothing more than a suspicion, which is not a sufficient basis for an inference of fact.
Please remember, the defendant is not required to prove any fact
Points and Authorities
See FORECITE F 224 Inst 2.
CALJIC NOTE: See FORECITE F 2.02b.
F 225 Inst 3 Modification For Crimes Involving “Specific Intent” And “Mental State”
*Modify CC 225, paragraph 1, 2 and 4 as follows [added language is underlined; deleted language is stricken]:
[Change “intent or mental state” to “intent, knowledge and mental state” ]
Points and Authorities
Conjunctive vs. Disjunctive— Careful consideration should be given to the material issues presented by the evidence before limiting an instruction to intent or mental state. For example, a charge of first degree murder based on premeditation and deliberation requires intent to kill as a “specific intent” and premeditation and deliberation as a “mental state.” Moreover, many non-homicide cases may have other mental state issues, such as willfulness or knowledge. (See FORECITE F 250 Inst 2.) Limitation of CALCRIM 225 to intent “or”mental state in such cases may be erroneous since the prosecution must prove every material element of the charge beyond a reasonable doubt. (See Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348].)
Knowledge As Mental Element—See FORECITE F 225 Inst 4.
Identification Of Parties—See FORECITE F 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 2.2 [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 2.02 n4.
F 225 Inst 4 Knowledge As Mental Element
*Modify CC 225, paragraph 1, 2 and 4 as follows:
[Change “intent or mental state” to “intent, knowledge and mental state” ]
Points and Authorities
“Mental State, Including Knowledge”— Knowledge or awareness may be an essential element of the offense. (See e.g., Implied Malice—Knowledge Of Risk Of Harm Required, see FORECITE F 8.11d.) Therefore, if the general term “mental state” is used, the jurors should be specifically instructed that knowledge and/or awareness is a mental state within the meaning of the instruction. (See e.g., People v. Danks (2004) 32 C4th 269 [recognizing that jurors make unwarranted assumptions about instructions which are not specifically spelled out].)
Identification Of Parties—See FORECITE F 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 2.2 [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 7.2 [Jury’s Duty To Fully And Fairly Apply The Law]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 225 Inst 5 Limitation Of Reasonable Doubt/Burden Of Proof Principles To Circumstantial Evidence Improperly Implies That Such Principles Do Not Apply To Direct Evidence
*Modify CC 225 as follows [added language is underlined; deleted language is stricken]:
The People must prove not only that the defendant did the acts charged, but also that (he/she) acted with a particular intent, knowledge and/or mental state. The instructions for each crime explain the intent or mental state required.
An intent, knowledge and/or mental state may be proved by circumstantial any evidence.
Before you may rely on circumstantial any evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.
Also, before you may rely on circumstantial the evidence to conclude that the defendant had the required intent, knowledge and/or mental state, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required intent, knowledge and/or mental state. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that the defendant did have the required intent, knowledge and/or mental state and another reasonable conclusion supports a finding that the defendant did not, you must conclude that the required intent, knowledge and/ or mental state was not proved by the circumstantial evidence. However, when considering circumstantial the evidence, you must accept only reasonable conclusions and reject any that are unreasonable.
Points and Authorities
Direct Evidence—See FORECITE F 224 Inst 3.
Disjunctive vs. Conjunctive—See FORECITE F 225 Inst 3.
Identification Of Parties—See FORECITE F 100.2 Note 1.
F 225 Inst 6 Applicability Of Circumstantial Evidence Principles To Expert Testimony
See FORECITE F 224 Inst 4.
F 225 Inst 7 Improper To Define Burden Of Proof In Terms Of Being Convinced Or Satisfied
*Modify CC 225, paragraph 3 as follows [added language is underlined; deleted language is stricken]:
Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced find that the People have proved each fact essential to that conclusion beyond a reasonable doubt.
*Modify paragraph 4, sentence 1, as follows:
Also, before you may rely on circumstantial evidence to conclude that the defendant had the required intent or mental state, you must be convinced find that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required intent or mental state.
Points and Authorities
See FORECITE F 224 Inst 5.
F 225 NOTES
F 225 Note 1 Unconstitutional Inference Argument Rejected
FORECITE has briefing available, to subscribers, arguing that CJ 2.00, CJ 2.01 and CJ 2.02 are constitutionally deficient unless limited to situations where it can be said “with substantial assurance” that the inferred fact more likely than not follows from the proved fact upon which it is made to depend. This argument was rejected in People v. Wilson (1992) 3 C4th 926, 942-43, but the issue may still be preserved for federal habeas or certiorari.
CALJIC NOTE: See FORECITE F 2.02 n2.
F 225 Note 2 Circumstantial Evidence Instruction Applicable When Circumstantial Evidence Relates To Intent
Use of CJ 2.01 (now CALCRIM 224) rather than CJ 2.02 (now CALCRIM 225) is proper unless the only element of the offense that rests substantially or entirely on circumstantial evidence is that of specific intent or mental state. (People v. Marshall (1996) 13 C4th 799, 849.)
See People v. Djou DEPUBLISHED (1995) 34 CA4th 1361, 1368.
CALJIC NOTE: See FORECITE F 2.02 n3.
F 225 Note 3 Applicability Of Circumstantial Evidence Principles To Expert Testimony
See FORECITE F 224 Inst 4.
F 225 Note 4 Mental State And Intent Are Normally Proven By Circumstantial Evidence
Intent is inherently an issue of circumstantial evidence. (E.g., People v. Gilbert (1992) 5 CA4th 1372, 1380; People v. Buckley (1986) 183 CA3d 489, 494-95.) Thus, for example, an attempt to commit crime requires specific intent which must normally be proven by circumstantial evidence. “There is rarely direct evidence of a defendant’s intent. Such intent must usually be derived from all the circumstances of the attempt, including the defendant’s actions [Citations.]” (People v. Palacios REV GTD (5/11/2005, S132144) 126 CA4th 428, 441.)
CALJIC NOTE: See FORECITE F 2.02 n6.