CALCRIM Motion Bank # CCM-005 (Re: Motion To Use The Defendant’s Name Instead Of The Term “Defendant”.)
__________ COURT OF CALIFORNIA
COUNTY OF __________
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff,
vs.
Defendant(s).
_________________________/
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NO. _________ |
MOTION TO USE THE DEFENDANT’S NAME IN FRONT OF JURY AND IN JURY INSTRUCTIONS INSTEAD OF THE TERM “DEFENDANT”; POINTS AND AUTHORITIES IN SUPPORT OF MOTION
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Defendant requests that the defendant be referred to by name in front of the jury and that following changes be made whereever the word “defendant” appears in the jury instructions:
Alternative a:
[Change “defendant” to “[Mr.] [Ms.] ________________________ <name of defendant> in all instructions]
Alternative b:
[Change “defendant” to “the accused” in all instructions]
POINTS AND AUTHORITIES IN SUPPORT OF MOTION
Generally for convenience purposes jury instructions should include the names of the defendant with the appropriate title (e.g., Ms., Mrs., Mr., etc). (See, e.g., Levenson & Ricciardulli, California Criminal Jury Instruction Handbook (West 2012-2013), § 2:2, Authors’ Notes, p. 25.)
Moreover, use of the term “defendant” undermines the presumption of innocence by implying an obligation to “defend” by coming forth with evidence or proof to justify an acquittal. Except for affirmative defenses (see, e.g., People v. Lam (2004) 122 CA4th 1297, 1301) and preliminary facts (see Evidence Code §403), the defendant has no burden to present evidence or prove anything at trial. (See In re Winship (1970) 397 US 358, 363 [90 SCt 1068; 25 LEd2d 368]; People v. Hill (1998) 17 C4th 800, 831; United States v. Blankenship (11th Cir. 2004) 382 F3d 1110, 1127.)
Additionally, use of the term “defendant” dehumanizes and stigmatizes the defendant. Most other parties to the proceeding, especially the witnesses against the defendant, will likely be referred to by their names. This gives the prosecution and accusing witnesses greater dignity and stature than the accused in the eyes of the jurors. This imbalance undermines the presumption of innocence and implicates due process fairness principles. (See Wardius v. Oregon (1973) 412 US 470 [37 LEd2d 82; 93 SCt 2208].)
This request is based, inter alia, on the Due Process, Trial By Jury, Confrontation, Compulsory Process and Right to Counsel Clauses of the California Constitution (Art I, §7, 15 and 16) and the federal constitution (5th, 6th and 14th Amendments) as applied to California through the Incorporation Doctrine. (Duncan v. Louisiana (1968) 391 US 145 [20 LEd2d 491; 88 SCt 1444]; see also Tennessee v. Lane (2004) 541 US 509, 562 [158 LEd2d 820; 124 SCt 1978].)
Unless this instructional request is granted the trial and jury instructions will abridge the defendant’s rights under the above constitutional provisions by:
A. Eliminating, shifting or lessening the prosecution’s burden of proof under the presumption of innocence in violation of one or more following constitutional principles:
(1) Any person accused of a crime is presumed innocent unless and until the jury finds that every essential fact necessary to prove the charged crime and every element of the crime has been proved by the prosecution by a reasonable doubt. (Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348]; U.S. v. Gaudin (1995) 515 US 506 [132 LEd2d 444; 115 SCt 2310]; Sullivan v. Louisiana (1993) 508 US 275, 278-81 [113 SCt 2078; 124 LEd2d 182]; Carella v. California (1989) 491 US 263, 265-66 [105 LEd2d 218; 109 SCt 2419]; Sandstrom v. Montana (1979) 442 US 510 [61 LEd2d 39; 99 SCt 2450]; In re Winship (1970) 397 US 358 [25 LEd2d 368; 90 SCt 1068]; U.S. v. Voss (8th Cir. 1986) 787 F2d 393; People v. Hill (1998) 17 C4th 800; People v. Figueroa (1986) 41 C3d 714.)
(2) The defendant has no duty to present any evidence, to prove any fact or to establish anything at all. (United States v. Blankenship (11th Cir. 2004) 382 F3d 1110, 1127; Mahorney v. Wallman (10th Cir. 1990) 917 F2d 469, 472.)
(3) The presumption of innocence is alone sufficient to acquit the defendant and that a reasonable doubt as to guilt may be based on a lack of evidence or a conflict in the evidence. (People v. Hill (1998) 17 C4th 800; see also Taylor v. Kentucky (1978) 436 US 478 [56 LEd2d 468; 98 SCt 1930]; United States v. Hollister (8th Cir. 1984) 746 F2d 420, 424.)
(4) The jury instructions must not lessen the prosecution’s burden of proof as to any essential fact or element of the charge. (See Carella v. California (1989) 491 US 263, 265-66 [105 LEd2d 218; 109 SCt 2419]; Francis v. Franklin (1985) 471 US 307 [85 LEd2d 344; 105 SCt 1965]; County Court of Ulster County v. Allen (1979) 442 US 140, 157 [60 LEd2d 777; 99 SCt 2213]; see also cases cited above.)
(5) Jury instructions must not shift the burden of proof so as to imply an obligation on the part of the defendant to prove or show any matter by testifying. (Griffin v. United States (1991) 502 US 46, 59 [116 LEd2d 371; 112 SCt 466]; Doyle v. Ohio (1976) 426 US 610 [49 LEd2d 91; 96 SCt 2240]; U.S. v. Hubbell (2000) 530 US 27 [120 SCt 2037, 2044; 147 LEd2d 24].)
(6) Instructions on the presumption of innocence and the prosecution’s burden of proof must not be conflicting or contradictory. (Francis v. Franklin (1985) 471 US 307 [85 LEd2d 344; 105 SCt 1965]; Baldwin v. Blackburn (5th Cir. 1981) 653 F2d 942, 949; People v. Noble (2002) 100 CA4th 184, 191; People v. Elguera (1992) 8 CA4th 1214, 1222; People v. Valenzuela (1977) 76 CA3d 218, 222.)
B. Unfairly favoring the prosecution. (See Wardius v. Oregon (1973) 412 US 470 [93 SCt 2208; 37 LEd2d 82]; see also United States v. Harbin (7th Cir. 2001) 250 F3d 532.) Although Wardius involved reciprocal discovery rights, the same principle should apply to jury instructions. (See Cool v. United States (1972) 409 US 100, 103 n. 4 [34 LEd2d 335; 93 SCt 354] [reversible error to instruct jury that it may convict solely on the basis of accomplice testimony but not that it may acquit based on the accomplice testimony]; People v. Moore (1954) 43 C2d 517, 526-27 [275 P2d 485] [“There should be absolute impartiality as between the People and the defendant in the matter of instructions”]; Reagan v. United States (1895) 157 US 301, 310 [15 SCt 610; 39 LEd 709].) Therefore, instructions which give an unfair advantage to the prosecution violate the “balance” required by Wardius and implicate due process. (Fourteenth Amendment.)
This request is also based on the Fourteenth Amendment’s Due Process Clause which is violated by:
(1) The arbitrary denial of a state created right. (Hicks v. Oklahoma (1980) 447 US 343 [65 LEd2d 175; 100 SCt 2227].)
(2) Multiple errors of state law which cumulatively render the trial unfair. (Greer v. Miller (1987) 483 US 756, 765 [107 SCt 3092; 97 LEd2d 618]; Taylor v. Kentucky (1978) 436 US 478, 488 [98 SCt 1930; 56 LEd2d 468]; Mak v. Blodgett (9th Cir. 1992) 970 F2d 614, 622; People v. Hill (1998) 17 C4th 800, 844-45.)
Furthermore, because this instruction request is necessary to assure the reliability of the jury’s disposition of this case, it is required by the above provisions of the federal constitution. (See generally Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354]; White v. Illinois (1992) 502 US 346, 363-64 [112 SCt 736; 116 LEd2d 848]; Donnelly v. DeChristoforo (1974) 416 US 637, 646 [94 SCt 1868; 40 LEd2d 431]; Thompson v. City of Louisville (1960) 362 US 199, 204 [80 SCt 624; 4 LEd2d 654].)
If this instruction request is not granted there is a reasonable likelihood that the jury will apply the instructions in a way that will prejudicially violate the defendant’s federal constitutional rights. (Estelle v. McGuire (1991) 502 US 62 [116 LEd2d 385; 112 SCt 475]; McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 839.)
Dated: __________
Respectfully submitted,
_____________________________
TRIAL COUNSEL CAVEAT: ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases additional federal constitutional claims will apply, above and beyond the claims discussed above. (Insert appropriate grounds into Points and Authorities including, but not limited to, those applicable from FORECITE [(PG VII(I)(c)] [Constitutional Grounds: Death Penalty].)