Party With Burden of Proof Loses When the Fact Finder is “On the Fence”
March 12th, 2018

Placing any burden at all on the defense, however slight, can be a “game changer” because such a burden requires uncertain or undecided jurors to side with the prosecution instead of the defense. In other words, when the fact finder is uncertain the unburdened party “‘must win.'[Citation.]” (People v. Jackson (2014) 58 Cal. 4th 724, […]

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CC 1191 Is Anomalous and Confusing When Evidence of the Uncharged Offense Consists Solely of the Victim’s Testimony
March 9th, 2018

The concurring opinion of Justice Perren in People v. Gonzales (2017) 16 Cal. App. 5th 494, 505-07 identified a serious problem with CC 1191 when the “the proffered evidence of the uncharged offenses consists solely of the victim’s testimony.” (Id. at 507.) The problem results from anomalous language in the instruction which allows the jurors […]

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CC 2300 — Transportation of a Controlled Substance — Does Not Adequately Explain the Specific Intent Element of the Offense
March 6th, 2018

Effective January 1, 2014, Health and Safety Code section 11379 was amended to limit the meaning of “transports” under the statute to transportation “for sale.” The jury instruction for section 11379 offenses was modified to reflect the 2014 amendment to the statute by inserting the words “for sale” after the word “transported” — “To prove […]

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Proof of Prior Convictions: The Constitutional Right to a Jury Trial “Sweeps More Broadly than Our Case Law Previously Recognized”
February 26th, 2018

People v. Gallardo (2017) 4 Cal.5th 120 (rehearing denied 1/24/18) determined that the trial court violated the defendant’s Sixth Amendment right to a jury trial when it found a disputed fact about the conduct underlying the defendant’s prior assault conviction that had not been established by virtue of the conviction itself:   “We today hold […]

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Double Jeopardy–Issue-Preclusive Effect of Acquittal After Consent to Severance of Multiple Charges into Sequential Trials
February 23rd, 2018

“A jury’s verdict of acquittal represents the community’s collective judgment regarding all the evidence and arguments presented to it. Even if the verdict is “based upon an egregiously erroneous foundation, its finality is unassailable.” (Yeager v. United States, (2009) 557 U.S. 110, 122-23, internal citations and punctuation omitted. Thus, if the jury necessarily resolved a […]


Preview of CALCRIM March 2018 Revisions
February 20th, 2018

CALCRIM has proposed new and revised instructions to be effective March 2, 2018 —   Below is a brief preview of the coming revisions. After the proposed revisions are formally approved they will be discussed further in a subsequent post.   New Instructions   CALCRIM No. 377. Presence of Support Person/Dog: PC § § […]

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 […]

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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 […]

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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 […]

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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 […]

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