CALCRIM Article Bank # CCA-002

The Jury Instruction Corner

Peeling Back The Plain English Facade

by Thomas Lundy

Thomas Lundy is a graduate of King Hall, University of California School of Law at Davis. He has been challenging standard pattern jury instructions for over 30 years in his appellate practice and professional writings. He founded and continues to edit FORECITE which originally challenged and supplemented CALJIC. He also authors a national publication on criminal jury instructions. He is currently authoring a fully revised version of FORECITE in response to the new CALCRIM instructions.

CONTACT: Tom Lundy, 2777 Yulupa Avenue, PMB 179, Santa Rosa, CA 95405, FAX (707) 538-0125, or email tlundy@ juryinstruction.com.

A. Fighting The Battle In The Trenches

In less than two weeks the CALCRIM instructions will effectively become the “law of the land” in the eyes of most judges and prosecutors. Hopefully we defense practitioners will be more cautious and wary of CALCRIM. While there is a lot in CALCRIM that can help our clients, all that glitters is not gold.

I may be wrong, but I have this uneasy feeling that in many cases CALCRIM will grease the skids to conviction. In fact, in a radio interview on KQED, San Francisco, Chief Justice Ronald George cited fewer hung juries and fewer appellate reversals as two expected benefits of CALCRIM. Maybe some of those hung juries will be turned into acquittals but a tiny voice is telling me that more will be turned into convictions.

Don’t get me wrong, I’m not arguing in favor of CALJIC over CALCRIM–that debate has long been settled. CALCRIM is clearly a done deal. But that doesn’t mean that CALCRIM should be given a free pass. In my view, it would be a major mistake to assume that the CALCRIM instructions are (1) correct statements of the law, (2) good for the criminal defendant in any given case, and (3) preemptive of the defendant’s right to have non-CALCRIM instructions given. In other words, like CALJIC, CALCRIM should not be sacrosanct.

Granted, there are likely to be years of litigation in the state and federal courts over specific CC issues. But the time to challenge CC is now and, as usual, this battle should begin in the trial court trenches.

To that end, in early January, I will be posting an article and draft motion in support of non-CALCRIM instructional requests.

Meanwhile, I am attaching some draft proposed modifications to CC 105 and 206 from Forecite which illustrate the fallibility of the CALCRIM instructions and demonstrate a technique for identifying potential defects in the CALCRIM instructions which I call: “Peeling back the plain English facade.”

B. Peeling Back The “Plain English” Facade Of CC 206 & CC 226

The CALCRIM committee was charged with the task of converting court approved legal terminology into “plain, straight forward language.” (See Judicial Council “News Release” #46, August 22, 2005.) The “News Release” further explained:

A sample comparison of the old and new instructions demonstrates the new approach:

Old “Innocent misrecollection is not uncommon.” [CALJIC 2.21.1]

New [CALCRIM 105/226, para. 3, sent. 3] “People sometimes honestly forget things or make mistakes about what they remember.” (Press Release #46.)

Certainly, the “New” language is plainer and more straight forward than the “Old.” But does it accurately convey the legal terminology it is interpreting? The answer is a resounding “NO.”

The term “sometimes” [i.e.”occasionally,” “at times” or “now and then”(Roget’s New Millennium Thesaurus, First Edition, 2005)] does not convey the same meaning as “not uncommon.” For example, one could accurately say that it “sometimes” snows in San Francisco but to say that snow is “not uncommon” in San Francisco wouldn’t fit.

Moreover, CALCRIM 105/226, para.3, sent.3, actually replaced two sentences in CALJIC 2.21.1; the sentence quoted in the News Release and the prior one which provides: “Failure of recollection is common.” It is beyond dispute that saying “people sometimes … forget” conveys a much different meaning than saying that “people commonly … forget.”

One need look no further than CALCRIM’s sister publication, CACI, to verify the CALCRIM defect. CACI 105 & 5003, para.3, sent.2 admonish civil jurors that:

“People often forget things or make mistakes in what they remember.” [emphasis added]

[This instruction was also used as the prototypical sample in the CACI News Release in 2003. (Judicial Council “News Release” #42, August 22, 2003.)]

Thus CACI corroborates the fact that CALCRIM’s use of the term “sometimes” does not accurately convey the language it replaced. And, this inaccuracy could have a devastating impact upon criminal defendants. For example, in eyewitness identification cases mistaken identification is often the primary defense theory. To merely tell the jurors that people “occasionally” forget or misremember gives the eyewitness a false aura of credibility by implying that more often than not eyewitness identification is accurate. This, combined with CALCRIM’s omission of any specific instruction on mistaken eyewitness identification (see CALCRIM 315, Related Issues), unjustifiably “loads the deck” in favor of the eyewitness and reduces the reliability of any eyewitness-based conviction under CALCRIM.

So, to sum up…

Even though CALCRIM 105 & 226 were subjected to an exhaustive eight year vetting and review process [see Preface to CC] during which they were:

1. Drafted by Task Force staff, and

2. Reviewed by a subcommittee, and

3. Considered by the full committee, and

4. Submitted to the bench and bar for review, and

5. Used as the prototypical example in the CALCRIM News Release…

…they are still FLAT WRONG and directly contradicted by the same instructions in CACI.

How could this happen…Simply because nobody peeled back the “plain English” facade. Everyone, myself included, looked at the Old and New instructions and said, “Yes, that sounds right. There’s no double negative and we also got rid of that big ‘misrecollection’ word, so the CALCRIM must be better.”

The lesson is clear: we must closely scrutinize any instruction that purports to translate established legal terminology into “plain English” to assure that the essential meaning embodied in the legal terminology has come through. If the very instruction the committee used to typify its work is dead wrong, how many other defective instructions will we find.

The answer, in my view, is plenty.