CC 401 SHOULD EXPRESSLY ADDRESS THE FACT THAT MERE KNOWLEDGE OF THE CRIME IS INSUFFICIENT FOR AIDER AND ABETTOR LIABILITY
September 5th, 2017
CALCRIM 401 correctly states that “being present as the scene of the crime or [failure] to prevent the crime does not, by itself, make [a person] an aider and abettor.” (See People v. Durham (1969) 70 C2d 171, 181; In re Jose T. (1991) 230 CA3d 1455, 1460.) However, the CALCrim language is incomplete […]
Tags: Accomplice Liability, Aider and Abettor, CC 400, CC 401, Defense Theory
Murder Conviction Reversed Due to Erroneous Reliance on CALCRIM Instructions
August 14th, 2017
In Washington v. Texas (1967) 388 U.S. 14, the United States Supreme Court held that a criminal defendant has a Sixth Amendment right to present exculpatory testimony of an accomplice to the jury. In Cool v. United States (1972) 409 U.S. 100, 104, the Court held that instructing a jury to ignore defense accomplice testimony […]
Tags: CC 301, CC 334, CC 335, Sample Instructions
Confusing Language of CC 121 Regarding Foreign Language Recordings Should Be Clarified
April 28th, 2017
In August 2016 the CALCRIM committee revised CC 121 to provide as follows: You must rely on the transcript, even if you understand the language in the recording. Do not restranslate the recording for other jurors. If you believe the transcript is incorrect, let me know immediately by writing a note and giving it to […]
Tags: CALCRIM Revisions, CC 121, Evidence and Witnesses, Sample Instructions
Sample Instructions: Use Of The Term “Expert“ In Jury Instruction As Improper Comment On The Evidence
April 6th, 2017
In this prior post it was suggested that the term “expert” should not be used when referring to witnesses in the jury instructions. Below is a non-exhaustive list of sample instructions which eliminate the term “expert” from the instructions: F 332 Inst 7 (a-d) Deletion Of The Term “Expert” From Expert Witness Instruction *Modify CC […]
Tags: CC 332, CC 361, Judge Comment on the Evidence, Sample Instructions
Use Of The Term “Expert“ In Jury Instruction As Improper Comment On The Evidence
April 6th, 2017
As recently recognized by the United States Supreme Court, the effect of testimony on a jury can be “heightened due to the source of the testimony.” (Buck v. Davis (2/22/2017) ___US___[187 Led 2d 35].) For example, when testimony in a death penalty trial regarding the defendant’s future dangerousness comes from a “medical expert bearing the […]
Tags: CC 332, CC 361, Death Penalty, Judge Comment on the Evidence
CC 370 (Motive): Will Lay Jurors Understand the Subtle Difference Between Intent – Which Is an Element of the Charge – and Motive – Which Is Not?
March 14th, 2017
The CSC has suggested that lay jurors will readily understand the subtle distinction between intent – which is an element of many crimes – and motive – which is generally not an element …[A]lthough malice and certain intents and purposes are elements of the crimes, as the court correctly instructed the jury, motive is not […]
Tags: CC 370, Mens Rea, Mens Rea: Intent, Mens Rea: Knowledge, motive, Sample Instructions
Lesser Included Offenses: Accusatory Pleading Test – Consideration of Evidence from Probable Cause Showing
March 14th, 2017
People v. Ortega (2015) 240 Cal.App.4th 956, 967 held that: “Due process principles of fairness, and defendant’s right to be prosecuted only on the noticed charges consistent with the probable cause showing supporting the accusatory pleading, compel us to agree that sexual battery is a lesser included offense of forcible sexual penetration where, as here, […]
Tags: CC 1045, CC Revisions, lesser included offenses, Sexual Battery, sexual offenses, Standard of Prejudice
Motive Instruction: Clarification Of Problematic Burden Shifting Language
March 14th, 2017
As revised in August 2016, CALCRIM 370 provides as follows: The People are not required to prove that the defendant had a motive to commit (any of the crimes/the crime) charged. In reaching your verdict you may, however, consider whether the defendant had a motive. Having a motive may be a factor tending to show that the defendant […]
Tags: CC 370, Mens Rea, Mens Rea: Intent, Mens Rea: Knowledge, Sample Instructions
Improper to Give CC 370 [Motive Not an Element] in Cases Requiring Motive
December 5th, 2016
Conflicting intent instructions—where one instruction requires the prosecution to prove intent while another instruction eliminates that requirement—can remove an element of the charge in violation of the Due Process Clause of the federal constitution. (See People v. Maurer (1995) 32 Cal.App.4th 1121, 1128; see also People v. Lee (1987) 43 Cal.3d 666, 673–674.) This is […]
Tags: CC 1121, CC 1122, CC 1125, CC 1126, CC 370, motive
Motive Instruction (CC 370): The Latest Calcrim Revision
December 5th, 2016
Effective August 26, 2016 the CALCRIM committee modified the bench notes for CC 1121, CC 1122, CC1125, and CC 1126 to add an admonition to not give CC 370 in such cases. See: here. The following post addresses that change. However, there are several issues and tactics regarding instruction on motive which CALCRIM does NOT address […]
Tags: CC 370, motive
