Are Jurors More Likely to Acquit Under CALCRIM than CALJIC?
March 29th, 2021

The California Supreme Court permits criminal jurors to be instructed on the definition of proof beyond a reasonable doubt using either CALJIC 2.90 or CALCRIM 2.20.


California law imposes a duty on the trial court to instruct the jury in a criminal case on the presumption of innocence in favor of the defendant and the prosecution’s burden of           proving guilt beyond reasonable doubt. Specifically, Evidence Code section 502 requires a trial court to instruct the jury concerning which party bears the burden of proof on each issue, and the applicable standard of proof. The prosecution’s burden of proof in a criminal case is controlled by section 1096 of the Penal Code, the substance of which has, in turn, been incorporated into the standard reasonable doubt instructions, CALJIC No. 2.90 and CALCRIM No. 220. Tracking the language of section 1096, the standard instructions describe the presumption of innocence and the requirement of proof beyond a reasonable doubt, and provide the legislatively approved definition of reasonable doubt. A court satisfies its statutory obligation to instruct on these principles by giving CALJIC No. 2.90 or CALCRIM No. 220. As section 1096a explains, “[i]n charging a jury, the court may read to the jury Section 1096, and no further instruction on the … presumption of innocence or defining reasonable doubt need be given.”


With respect to the principles that a defendant is accorded the presumption of innocence and the prosecution bears the burden of proving guilt beyond a reasonable doubt,           instruction with CALJIC No. 2.90 or CALCRIM No. 220 also satisfies the long-established rule requiring sua sponte instruction on “those principles closely and openly connected with the facts before the court, and … necessary for the jury’s understanding of the case.” [Citation.]


          People v. Aranda (2012) 55 Cal.4th 342, 352-54


However, notwithstanding this purported legal equivalence between  CJ 2.90 versus CJ 2.20, the linguistic structure of the two instructions differ substantially.


CJ 2.90 provides as follows:


A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt. Reasonable doubt is defined as follows: It is not a mere possible doubt, because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.


CC 2.20 provides as follows:


A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt [unless I specifically tell you otherwise]. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] 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 you must find (him/her/them) not guilty. (See Cal. Rules of Court, rule 2.1050 [declaring the CALCRIM instructions the “official instructions” for Cal. criminal courts].)


However, even assuming the two instructions are legally equivalent one empirical study suggests that a criminal defendant is actually better off with CC 220 than with CJ 2.90. This study compared the CALJIC and CALCRIM instructions regarding reasonable doubt. It concluded that mock jurors who were instructed with the CALCRIM definition of reasonable doubt better understood that legal principle than those who received the CALJIC definition. And, as a result, the CALCRIM jurors  returned 73 not guilty verdicts while the CALJIC mock jurors only returned 57 not guilty verdicts. (See “An Empirical Comparison of the Old and Revised Jury Instructions of California: Do Jurors Comprehend Legal Ease Better or Does Bias Still Exist?” (Open Access Library Journal 2017, Volume 4, e3164, ISSN Online: 2333-9721, ISSN Print: 2333-9705.) In other words, the mock jurors instructed with the CALCRIM definition of reasonable doubt returned approximately 28% more not guilty verdicts than those instructed with the CALJIC definition.



This study is significant because some judges continue to give the CALJIC definition even though CALCRIM contains California’s official “official instructions.” (See e.g., . (See e.g., People v. Potts (2019) 6 Cal.5th 1012, 1033 [judge gave CJ 2.90]; see also People v. Martinez UNPUBLISHED (Feb. 16, 2021, B301401) [pp. 5]; People v. Rodriguez UNPUBLISHED (July 10, 2019, B280915) [pp. 50]; People v. Colin UNPUBLISHED (July 2, 2019, B286588) [pp. 18].) Hence, it  may be important to consider the findings of this empirical study when deciding whether or not to oppose a judge’s decision to use CALJIC instead of CALCRIM.. Alternatively, in light of Aranda counsel may wish to consider requesting the CALCRIM definition of reasonable doubt even if the remainder of the instructions are taken from CALJIC.

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