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, Sex Crimes, Sexual Battery, 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
Premeditation and Deliberation Is Not Alone Sufficient to Prove Lying In Wait
October 17th, 2016
In People v. Nelson (2016) 1 Cal.5th 513 the evidence of “a substantial period of watching and waiting” was insufficient, so the finding of lying in wait was set aside (both as a theory of first-degree murder and as a special circumstance). “The evidence showed, directly or by reasonable inference, that Nelson rode his bicycle […]
Tags: CC 521, Homicide, Premeditation and Deliberation
Standard of Prejudice: Penalty Phase Error
October 10th, 2016
People v. Grimes (2016)1 Cal.5th 698, 721-23 held that under California law trial court’s erroneous exclusion of evidence is harmless as to penalty unless there is a “reasonable possibility” that the jury would have rendered a different verdict had the erroneously excluded evidence been presented to the jury. The “reasonable possibility” standard is “the same, […]
Tags: Death Penalty, Standard of Prejudice
Death Penalty Mitigation: Fetal Alcohol Evidence (FAE)
October 3rd, 2016
In Trevino v. Davis (5th Cir. 2016) 829 F.3d 328 the district court erred by concluding that evidence of Fetal Alcohol Effect (FAE) was “double-edged,” suggesting future dangerousness, so there was no prejudice from trial counsel’s failure to develop it. According to petitioner’s habeas expert, “his history of FAE clearly had an impact on his […]
Tags: CC 763, Death Penalty
Mayberry Defense Applies to Misdemeanor Sexual Battery
September 19th, 2016
People v. Andrews (2015) 234 CA4th 590, 592 considered whether the Mayberry [People v. Mayberry (1975) 15 Cal.3d 143] defense of honest and reasonable belief in consent is applicable to the crime of misdemeanor sexual battery. Andrews concluded that in an appropriate case honest and reasonable belief in the victim’s consent may be a valid […]
Tags: CC 935, CC 938
