Jury Instructions Should not Permit Jurors to Reject Defense Evidence Without Considering It
September 14th, 2018
It is a fundamental tenet of the federal constitutional rights to fair trial by jury and due process (5th, 6th and 14th Amendments) that the jury consider exculpatory evidence upon which the defendant relies to leave the jury with a reasonable doubt as to any element of the charge. (See e.g., Martin v. Ohio (87) […]
Tags: CC 105, CC 2100, CC 2101, CC 2102, CC 2110, CC 2111, CC 2113, CC 2114, CC 2200, CC 226, CC 2430, CC 2431, CC 2432, CC 2470, CC 2514, CC 2745, CC 2746, CC 2747, CC 316, CC 3450
CC 320 Should Be Limited When a Gang Associate’s Refusal to Testify Is Admitted for the Limited Purpose of Supporting Gang Expert Testimony
September 12th, 2018
CC 320, which applies to situations where a witness refuses to testify based on an invalid exercise of privilege, provides as follows: <Alternative B—Invalid Exercise of Privilege> [ <Insert name of witness> did not have the right to refuse to answer questions in this case. You may consider that refusal during your deliberations.] This instruction […]
Tags: CC 320, Gangs, Sample Instructions
Trial Counsel Has Duty to Request Clarification or Modification of “Otherwise Correct” Instruction but Instruction Which Is “Incorrect in Law” May Be Reviewed on Appeal Without Objection Below
September 12th, 2018
In People v. Capistrano (2014) 59 Cal.4th 830, 875, fn. 11 the attorney general contended that the defendant forfeited any objection to various instructions because he failed to object to them in the trial court. The CSC responded by differentiating between an instruction which is “incorrect in law” — which does not require an instruction […]
Tags: Appeal, Duty to Request Instruction, PG VI(A) - Cognizability of Instructional Error on Appeal
Impact of Defendant’s Inability to Remember His Commission of the Offense on Whether He Should be Executed.
September 6th, 2018
Madison v. Alabama (17-7505) will be argued in the United States Supreme Court on October 2, 2018. Questions presented: “1. Consistent with the Eighth Amendment, and this Court’s decisions in Ford and Panetti, may the State execute a prisoner whose mental disability leaves him without memory of his commission of the capital offense? See […]
Tags: CC 763, CC 766, Death Penalty
Preview of CALCRIM September 2018 Revisions
August 23rd, 2018
The following proposed revisions – which were published via an invitation to comment (May 22- June 22, 218) are scheduled to be adopted on September 20, 2018. See http://www.courts.ca.gov/documents/CALCRIM-2018-01.pdf Instruction Number Instruction Title 580 Involuntary Manslaughter 800 Aggravated Mayhem 1520 Attempted Arson 1600 Robbery 1820 Unlawful Taking or Driving of Vehicle 2181 Evading Peace […]
Juror’s “Common Sense and Experience” May Not Override Presumption of Innocence
August 22nd, 2018
CC 105 and CC 226 — which tell the jurors to rely on their “common sense and experience” regarding their consideration of evidence – have been approved in an appellate ruling. (See People v. Campos (2007) 156 Cal.App.4th 1228, 1239-1241; see also People v. Centeno (2014) 60 Cal.4th 659, 669 [“jurors may rely on common knowledge […]
Tags: Burden Of Proof, CC 105, CC 226, Jury Deliberation, Presumption of Innocence, Sample Instructions
Witness Credibility: Expected Benefit from Prosecutor
August 14th, 2018
Nevada capital murder conviction and death sentence vacated because prosecution failed to disclose, inter alia evidence that the key prosecution witness expected a benefit from the prosecution in exchange for his testimony. (Browning v. Baker (9th Cir. 2017) 875 F.3 444.) Brady violation resulted from prosecutor’s failure to disclose that the key prosecution witness—who […]
Tags: CC 105, CC 316, Witness Credibility
Witness Credibility: Membership in Rival Gang
August 13th, 2018
California state conviction for first degree gang murder vacated because the prosecution failed to disclose that its key witness “had pleaded guilty to committing a robbery, that he was on probation for that offense [at the time of defendant’s trial], and that [he] had been a member of the Piru Bloods,” who were rivals of […]
Tags: CC 105, CC 316, Witness Credibility
Dog Tracking Evidence: Limitations of CALCRIM 374
August 6th, 2018
CC 374 includes the following language: Before you may rely on dog tracking evidence, there must be: Evidence of the dog’s general reliability as a tracker; AND Other evidence that the dog accurately followed a trail that led to the person who committed the crime. This other evidence does not need to independently […]
Tags: CC 374, Sample Instructions
Death Penalty; Factor B (Other Violent Conduct) – Judge Decides Whether Prior Conduct is:
July 30th, 2018
In People v. Manibusan (2013) 58 Cal.4th 40 the California Supreme Court held that although the jury decides whether alleged acts of other violent criminal activity (PC 190.4 (b)) occurred, “the characterization of those acts as involving an express or implied use of force of violence, or the threat thereof, is a legal matter for […]
Tags: CC 764, CC 765, Death Penalty
