SERIES 300 EVIDENCE
F 359 Corpus Delicti: Independent Evidence of a Charged Crime
TABLE OF CONTENTS
F 359 Inst 1 Corpus Delicti: Unanimity Requirement
F 359 Inst 2 Corpus Delicti: Jurors Must Find Independent Evidence As To All Elements Of The Charged Offense
F 359 Inst 3 Corpus Delicti: Prosecution Must Proof Every Essential Fact And Element Beyond A Reasonable Doubt
F 359 Inst 4 Admissions And Corpus Delicti: Jurors Are “Exclusive Judges“ Of Whether Statement Was Made And Whether It Was True
F 359 Inst 5 Corpus Delicti: Applies To Specific Intent And Mental Elements
F 359 Inst 6 Proof Of Corpus Delicti: Prior Offenses
F 359 NOTES
F 359 Note 1 Corpus Delicti: Error To Refuse CC 359
F 359 Note 2 Failure To Require Corroborating Evidence Of Corpus Reversible Error
F 359 Note 3 Applicability of Corpus Rule to Felony Which Underlies a Felony Murder Charge
F 359 Note 4 Applicability Of Apprendi To Corpus Rule [Reserved]
F 359 Note 5 Corpus Delicti: Impact Of Proposition 8
F 359 Note 6 Corpus Rule Not Applicable To Administrative Proceeding
F 359 Note 7 Corpus Delicti Requirement Inapplicable To Statements Which Constitute The Crime Itself
F 359 Note 8 Corpus Instruction: Inapplicable To Sentencing Enhancements
Return to Series 300 Table of Contents.
F 359 Inst 1 Corpus Delicti: Unanimity Requirement
*Modify CC 359, paragraph 1, sentence 2, as follows [added language is underlined; deleted language is stricken]:
Unless you all unanimously conclude [agree] [find] that other evidence shows someone committed the charged crime [or a lesser included offense], you may not rely on any out-of-court statement[s] by the defendant to convict (him/her) [of that crime or lesser offense].
Points and Authorities
Because the corpus delicti is a necessary element of the charged offense (see People v. Jennings (1991) 53 C3d 334, 369), juror unanimity principles should apply to the corpus delicti. (Richardson v. U.S. (1999) 526 US 813 [143 LEd2d 985; 119 SCt 1707] [juror unanimity required as to statutory elements of the charge]; see also McKoy v. North Carolina (1990) 494 US 433, 445 [110 SCt 1227; 108 LEd2d 369] (Blackmun, concurring) [there must be substantial agreement as to the principle factual elements underlying a specified offense]; U.S. v. Duncan (6th Cir. 1988) 850 F2d 1104; U.S. v. Fawley (7th Cir. 1998) 137 F3d 458 [due process requires juror unanimity as to every element of the charge].)
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 5.7 [Preliminary Facts]
FORECITE CG 12.2 [Duplicity/Unanimity]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 359 Inst 2 Corpus Delicti: Jurors Must Find Independent Evidence As To All Elements Of The Charged Offense
*Modify CC 359, paragraph 1, sentence 2, as follows:
[Delete “[or a lesser included offense]” and “[… or lesser offense].”]
*Add after paragraph 2:
If the other evidence only shows that the crime of _______________ <insert name of lesser offense> was committed you may not rely on any alleged out-of-court statement[s] by the defendant to convict (him/her) of _______________ <insert name of greater offense>. However, you may rely on such statements in considering whether the prosecution has proved the defendant guilty beyond a reasonable doubt of _______________ <insert name of lesser offense>.
Points and Authorities
CALCRIM 359 may be read to only require corroboration of a lesser-included offense. Such an interpretation would be erroneous. (See generally People v. Frye (1998) 18 C4th 894, 959-60 [quoting CJ 2.72 with approval]; People v. Zapien (1993) 4 C4th 929, 985-86 [finding some independent evidence of “each element” of the special circumstance]; People v. Brucker (1983) 148 CA3d 230, 237 [failure to give CG 2.72 was error]; but cf. People v. Alvarez (2002) 27 C4th 1161, 1172 [no need for independent evidence of “every physical act constituting an element of an offense” so long as there is a showing of injury, loss or harm by a criminal agency].)
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 5.14 [Corpus Delicti]
FORECITE CG 7.4 [Juror Consideration Of Evidence For An Improper Purpose]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 359 Inst 3 Corpus Delicti: Prosecution Must Proof Every Essential Fact And Element Beyond A Reasonable Doubt
*Add at the end of CC 359:
Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.
Points and Authorities
The above language from CC 376, paragraph 4, accurately states the prosecution’s burden. (See In re Winship (1970) 397 US 358 [25 LEd2d 368; 90 SCt 1068]; see also FORECITE F 103.2 Inst 2.)
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 5.4 [Argumentative, Improper Comment, Undue Emphasis Of Evidence]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 359 Inst 4 Admissions And Corpus Delicti: Jurors Are “Exclusive Judges” Of Whether Statement Was Made And Whether It Was True
*Add to CC 359:
[See FORECITE F 357 Inst 5.]
F 359 Inst 5 Corpus Delicti: Applies To Specific Intent And Mental Elements
*Modify CC 359, paragraph 1, sentence 2 as follows [added language is underlined]:
Unless you conclude that other evidence shows someone committed the charged crime [or a lesser included offense], including any specific intent and/or mental state element of the crime, you may not rely on any out-of-court statement[s] by the defendant to convict (him/her) [of that crime or lesser offense].
Points and Authorities
Intent And Mental State Are Part Of Corpus: It is sometimes said that the corpus delicti consists of all the elements of the crime. (See e.g., Cal. Criminal Law: Procedure and Practice (CEB 7th Ed. 2004) §30.22, p. 790.) However, this is not always true since some elements are not subject to the corpus delicti rule such as the identity of the perpetrator. (See People v. Hawkins (2004) 124 CA4th 675, 680.)
On the other hand, it is incorrect to suggest that the intent, purpose, or mental state of the perpetrator is generally not an element of the corpus delicti. (See e.g., 1 Witkin and Epstein, Cal. Criminal Law (2d Ed. 2000) Elements §46, p. 251.) For certain crimes, it has been held that the corpus delicti includes evidence of the defendant’s mental state. (See e.g., People v. Lopez (1967) 254 CA2d 185, 190 [corpus delicti of selling narcotics included knowledge that the substance sold was a narcotic]; People v. Lawrence (1956) 141 CA2d 630, 633 [corpus delicti of child abuse shown by evidence that corporal injury was inflicted on child deliberately and intentionally].)
Accordingly, the intent, purpose, and/or mental state is an element of the corpus delicti which must be proven independent of the defendant’s admissions. (People v. Hawkins, supra, 124 CA4th at 681.)
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 5.14 [Corpus Delicti]
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 2.72c.
F 359 Inst 6 Proof Of Corpus Delicti: Prior Offenses
*Modify CC 359 to apply to prior offenses as follows [added language is underlined; deleted language is stricken]:
The defendant may not be convicted of any crime a prior offense based on (his/her) out-of-court statement[s] alone. Unless you conclude that other evidence shows someone committed the charged crime [or a lesser included offense] prior offense, you may not rely on any out-of-court statement[s] by the defendant to convict (him/her) [of that crime or lesser offense] to find the prior offense to be true.
The other evidence may be slight and need only be enough to support a reasonable inference that someone’s criminal conduct caused an injury, loss, or harm. The other evidence does not have to prove beyond a reasonable doubt that the charged crime prior offense actually was committed.
The identity of the person who committed the crime [and the degree of the crime] may be proved by the defendant’s statement[s] alone.
You may not convict the defendant unless the People have proved (his/her) guilt beyond a reasonable doubt.
Points and Authorities
Priors Offered Per PC 190.3(b) In Death Penalty Case.—There is authority for the proposition that the commission of a prior crime may not be proved by evidence of the defendant’s extrajudicial admission without independent proof that such a crime was committed. (People v. Williams (1988) 44 C3d 883, 910-11; People v. Robertson (1982) 33 C3d 21, 41.) Under this authority, it may be argued that a prior offense should not be admitted without independent proof of that offense.
Identification Of Parties.—See FORECITE F 100.2 Note 1.
Priors Offered To Prove Propensity (EC 1108 & EC 1109).—Under the reasoning of Williams and Robertson priors offered to show criminal propensity should be subject to the corpus rule. (See generally CC 359.)
Priors Offered Per EC 403(c).—Even if the evidence is admitted, pursuant to EC 403(c)(1) the defendant should have the right to an instruction, upon request, requiring the jury to find the corpus delicti of the offense independent of an admission or a confession before it may consider the evidence.
EC 1101(b) Priors.—However, the applicability of this rule to situations where the uncharged conduct is offered for a limited purpose under EC 1101(b) has been questioned in People v. Denis (1990) 224 CA3d 563, 567. In Denis, the court concluded that Williams and Robertson proclaimed the rule but did not apply it. Therefore, the court refused to expand the corpus rule to cover uncharged conduct offered for a limited purpose. (Denis, 224 CA3d at 569.)
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 5.8 [Preliminary Factual Finding: Non-Element]
FORECITE CG 5.14 [Corpus Delicti]
FORECITE CG 7.4 [Juror Consideration Of Evidence For An Improper Purpose]
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 2.72 n1.
F 359 NOTES
F 359 Note 1 Corpus Delicti: Error To Refuse CC 359
It is error to refuse a defense request for CJ 2.72 (now CC 359). (People v. Daly (1992) 8 CA4th 47, 59.)
Compare CC Bench Notes: AThe court has a sua sponte duty to instruct on corpus delicti whenever an accused’s extrajudicial statements form part of the prosecution’s evidence. (People v. Howk (1961) 56 Cal.2d 687, 707.)@
[RESEARCH NOTE: See Annotation, Sufficiency of corroboration of confession for purpose of establishing corpus delicti as question of law or fact, 33 ALR 5th 571 and Later Case Service]
CALJIC NOTE: See FORECITE F 2.72 n2.
F 359 Note 2 Failure To Require Corroborating Evidence Of Corpus Reversible Error
See FORECITE PG X(C)(9).
F 359 Note 3 Applicability of Corpus Rule to Felony Which Underlies a Felony Murder Charge
California adheres to the majority rule that does not require independent corroboration of the corpus for a felony which is used as the predicate for first degree felony murder under PC 189. (See People v. Cantrell (1973) 8 C3d 672, 679-81.) However, a person is just as likely to confess to a non-existing felony as he is to a non-existing murder. Therefore, logically the corpus delicti rule should apply with equal force to compound crimes—where one crime has occurred, but, absent the confession from the defendant, there is no evidence indicating that the underlying crime, in fact, has taken place. (See DeJesus v. State (1995) 655 A2d 1180.)
CALJIC NOTE: See FORECITE F 2.72 n4.
F 359 Note 4 Applicability Of Apprendi To Corpus Rule [Reserved]
F 359 Note 5 Corpus Delicti: Impact Of Proposition 8
People v. Alvarez (2002) 27 C4th 1161, 1180 held that Proposition 8 (PC 28(d)) “did not eliminate the independent-proof rule insofar as the rule prohibits conviction where the only evidence that the crime was committed is the defendant’s own statements outside of court. Thus, section 28(d) did not affect the rule to the extent it (1) requires an instruction to the jury that no person may be convicted absent evidence of the crime independent of his or her out-of-court statements or (2) allows the defendant, on appeal, directly to attack the sufficiency of the prosecution’s independent showing.” [Emphasis in original.] (See also People v. Gutierrez (2002) 28 C4th 1083 [identity of the perpetrator, as well as the knowledge and intent of the aider and abettor, “are not elements of the corpus delicti rule that must be proved independently of any extrajudicial admissions … .” ]; People v. Jones (1998) 17 C4th 279; People v. Riccio (1996) 42 CA4th 995, 1001; People v. Culton (1992) 11 CA4th 363, 373-77.)
CALJIC NOTE: See FORECITE F 2.72 n5.
F 359 Note 6 Corpus Rule Not Applicable To Administrative Proceeding
Corrigan v. Zolin (1996) 47 CA4th 230 held that the corpus delicti rule does not apply in an administrative proceeding to revoke a defendant’s drivers license. (But see, Creutz v. Superior Court (1996) 49 CA4th 822 [reaffirming the corpus delicti rule and rejecting the prosecution’s argument that “all criminal statutes must be construed so as to permit the most efficacious prosecution of suspects.” ] (Creutz, at 831.)
CALJIC NOTE: See FORECITE F 2.72 n6.
F 359 Note 7 Corpus Delicti Requirement Inapplicable To Statements Which Constitute The Crime Itself
People v. Carpenter (1997) 15 C4th 312 concluded that, although the corpus rule applies to pre-offense statements of later intent as well as post-offense statements, it does not apply to a statement that is “part of the crime itself.” [Emphasis added.] (Id. at 394; see also People v. Chan (2005) 128 CA4th 408.) For example, a statement to the victim of current intent is part of the crime and does not have to be independently proved and, therefore, the court need not instruct with CALCRIM 359 as to such a statement.
CALJIC NOTE: See FORECITE F 2.72 n7.
F 359 Note 8 Corpus Instruction: Inapplicable To Sentencing Enhancements
Because an enhancement does not define a crime, but “merely” imposes additional punishment for a crime when certain circumstances are found to exist (People v. Best (1983) 143 CA3d 232, 236), the corpus delicti rule would not serve its purpose by application to an enhancement. (People v. Shoemaker (1993) 16 CA4th 243, 252-56.)
[RESEARCH NOTE: See FORECITE BIBLIO 2.92]
CALJIC NOTE: See FORECITE F 2.72 n8.
