CALCRIM Article Bank # CCA-004
The Jury Instruction Corner
The Jury Should Be Instructed That It Must Find “Each Element” Or “Every Element” Of The Charge
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 in his appellate practice and professional writings. He founded and continues to edit FORECITE which originally challenges and supplements the standard California Instructions: CALJIC & CALCRIM. He also authors a national publication on criminal jury instructions at www.JuryInstruction.com.
CONTACT: Tom Lundy, 2777 Yulupa Avenue, PMB 179, Santa Rosa, CA 95405, FAX (707) 538-0125, or email tlundy@juryinstruction.com.
This article contends that the judge should replace paragraph 2, sentence 2 of CALCRIM 220 [Revised August 2006] with the following language from CALCRIM 220 [New January 2006] and the August 2006 version of CALCRIM 103:
This presumption requires that the prosecution prove each element of a crime [and special allegation] beyond a reasonable doubt.
The Federal Constitution Requires The Prosecution To Prove Every Element — 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 beyond 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, 831: People v. Figueroa (1986) 41 C3d 714.)
California Case Law Requires The Prosecution To Prove Every Element – The California courts have consistently expressed the prosecution’s burden in terms proving each or every element of the charge. (See e.g., People v. Cole (2004) 33 C4th 1158, 1208 (main charge) [ “The prosecution has the burden of proving beyond a reasonable doubt each element of the charged offense.”]; People v. Rodriguez (2004) 122 CA4th 121, 128 (special allegation) [ “The prosecution has the burden of proving beyond a reasonable doubt each element of a prior conviction used to enhance a defendant’s sentence.”].)
The need to instruct in such language was emphasized in People v. Phillips (1997) 59 CA4th 952, in which the trial court failed to give adequate jury instructions regarding reasonable doubt and the presumption of innocence. The prosecution argued that it was harmless error because the jury received instruction from counsel, but the Court of Appeal reversed, finding that the jurors had to specifically be advised that each element had to be proved beyond a reasonable doubt in order to convict on a charge:
In our view, the trial court’s error suffered no less a constitutional defect than did the trial court in Sullivan [Sullivan v. Louisiana (1993) 508 US 275]. The reversal per se rule of Sullivan does not allow for exceptions where counsel refer to the reasonable doubt instruction in argument. The structural infirmity present in Sullivan is present here as well.
The attorneys’ references to the requirement of proof beyond a reasonable doubt fell “short of apprising the jurors that defendants were entitled to acquittal unless each element of the crimes charged was proved to the jurors’ satisfaction beyond a reasonable doubt buttressed by additional instructions on the meaning of that phrase.” (People v. Phillips, supra, 59 CA4th 952, 957-958; quoting People v. Vann (1974) 12 C3d 220, 227; emphasis added.)
In sum, the California cases stand for the proposition that jury instructions which do not specifically require proof beyond a reasonable doubt of each element are inadequate. (People v. Harris (1994) 9 C4th 407, 438; see also People v. Vann (1974) 12 C3d 220.)
California Evidence Code Section 502 Requires Correct Instruction On The Burden Of Proof – The requested instruction is also justified by Evidence Code Section 502 which provides as follows:
The court on all proper occasions shall instruct the jury as to which party bears the burden of proof on each issue and as to whether that burden requires that a party raise a reasonable doubt concerning the existence or nonexistence of a fact or that he establish the existence or nonexistence of a fact by a preponderance of the evidence, by clear and convincing proof, or by proof beyond a reasonable doubt. [Emphasis added.]
The Language Of The Requested Instruction Was Approved By The CALCRIM Committee After Nine Years Of Input From Respected Judges, Practitioners And Scholars – A Blue Ribbon committee of judges, practitioners and scholars labored for 9 years to produce the original set of CALCRIM instructions. Moreover, the instructions were vetted to the public and numerous members of the legal community submitted input. Finally, the CALCRIM instructions were officially “endorsed” by the Judicial Council. (Rule 2.1050 (formerly Rule 855(b)), Calif. Rules of Court.)
Accordingly, CALCRIM 220 was a proper and accurate instruction when initially written by the CALCRIM Committee and endorsed by the Judicial Council. Therefore, the request to instruct using this original and correct language should be granted.
The Requested Language Is Widely Used And Approved In Other Jurisdictions – A substantial majority of other jurisdictions – state, federal and military – use the “every element” or “each element” construction when defining the presumption of innocence. (See Jury Instruction Survey, below [only 4 out 34 jurisdictions randomly surveyed did not use the “every element” or “each element” formulation.) This fact further demonstrates that the January 2006 language of CALCRIM 220 is preferable to the revised version and should be given when requested.
STRATEGY NOTE — If the judge continues to deny a request for the “each element” formulation of CALCRIM 220 there are several tactical options for utilizing closing argument to emphasize the requirement. (See FORECITE F 200.5 Inst 2.)
Moreover, counsel may also rely on CALCRIM 103 [August 2006 Version] which still contains the “each element” language.
Other Jurisdictions Instruct Jurors On The Prosecution’s Burden To Prove Every Element
A. State Jurisdictions
In a random partial survey of state jurisdictions only 2 out of 23 (Alabama and Montana) did not use the “each element” or “every element” formulation when defining the presumption of innocence.
Alaska: “every essential element ” (ALASKA PATTERN CRIMINAL JURY INSTRUCTIONS, 1.06 (Alaska Bar Association, 1987).)
Colorado: “each and every element ” (State of Colorado Unofficial Draft for Review and Comment (September 2003).)
Connecticut: “the essential elements” (Connecticut Selected Jury Instructions – Criminal A. Preliminary Instructions to Voir Dire Panel, 1.6 Burden of Proof (The Commission on Official Legal Publications – Judicial Branch, 3rd ed. 1996).)
Florida: “[The presumption of innocence] stays with the defendant as to each material allegation in the [information] [indictment] through each stage of the trial unless it has been overcome by the evidence to the exclusion of and beyond a reasonable doubt.”] (Florida Standard Jury Instructions Online 3.7 [Plea Of Not Guilty; Reasonable Doubt; And Burden Of Proof]; see also Florida Standard Jury Instructions in Criminal Cases 2.03. [Plea Of Not Guilty; Reasonable Doubt; And Burden Of Proof] (Florida Bar, 1987).)
Hawaii: “every material element” (Hawaii Pattern Jury Instructions – Criminal, HAWJIC 3.02 PRESUMPTION OF INNOCENCE; REASONABLE DOUBT(West, 1998).)
Kansas: “doubt as to any of the claims required to be proved” (Pattern Instructions for Kansas – Criminal, PIK – Criminal 3d, 52.02 para 2 (Kansas Judicial Council, 3rd ed. 1999).)
Kentucky: “every element of the case”(Cooper, Kentucky Instructions to Juries, 1.01 para 1 (Anderson, 4th ed. 1999).)
Louisiana: “each element of the crime” (Joseph & LaMonica, Louisiana Civil Law Treatise Criminal Jury Instructions, 3.02, para 1 (West, 1994).)
Maryland: “each of the elements” (Aaronson, Maryland Criminal Jury Instructions and Commentary, 1.02 para 1 (Lexis, 2nd ed. 1988).)
Massachusetts: “each element of each charge” (Hrones & Homans, Massachusetts Jury Instructions —Criminal Form 1-1. Presumption of Innocence (Lexis, 2nd ed. 1999).)
Maine: “each and every element” (Alexander, Maine Jury Instructions Manual, 3rd ed. 4- 2 para 2 (Lexis, 1999).)
Michigan: “each element” (Michigan Criminal Jury Instructions (ICLE, 2nd ed. 1999).)
Minnesota: “each element” (Minnesota Jury Instruction Guides – Criminal, CRIMJIG 3.20 (West, 4th ed. 1999).)
New Jersey: “each and every essential element ” (NEW JERSEY MODEL JURY CHARGES —CRIMINAL, PRESUMPTION OF INNOCENCE, BURDEN OF PROOF, REASONABLE DOUBT (New Jersey ICLE 4th ed. 1997).)
New York: “every element” (Criminal Jury Instructions – New York, CJI (NY) 2d PRESUMPTION OF INNOCENCE, BURDEN OF PROOF, REASONABLE DOUBT (New York Office of Court Administration 1996).)
Oklahoma: “each element” (Oklahoma Uniform Jury Instructions – Criminal, OUJI – CR 10-4 GENERAL CLOSING CHARGE – PRESUMPTION OF INNOCENCE (Oklahoma Center for Criminal Justice, 2nd ed. 1996 (2000 Supp.).)
Pennsylvania: “each and every element of the crime charged” (Pennsylvania Suggested Standard Criminal Jury Instructions, Pa.SSJI (Crim) 7.01 (Pennsylvania Bar Institute, PBI Press, 2000).
South Carolina: “each and every essential element” (Ervin’s, South Carolina Criminal Jury Instructions 1-14, [Reasonable Doubt Charge] ¶ 1. (South Carolina Bar, 1995).)
Tennessee: “all of the elements” (Tennessee Pattern Instructions – Criminal, 2.04 Burden of Proof: Elements and Date of the Offense, T.P.I.- Crim (West, 5th ed. 2000).)
Texas: “each and every element of the offense” (McClung, & Carpenter, Texas Criminal Jury Charges 1:350 [General Instruction – Reasonable Doubt, Presumption Of Innocence] (James Publishing, 2000).)
Washington: “each element of every crime charged” (Washington Pattern Jury Instructions – Criminal, WPIC 31.01 (West, 2nd ed. 1994).)
B. Federal Circuit, Military, District Of Columbia
A random survey of eight federal circuit (1st, 5th, 6th, 7th, 8th, 9th, 10th and 11th), the four Military Justice Courts and the District of Columbia revealed that only three out of the thirteen jurisdictions (5th, 10th and 11th1 Circuits) did not use the “each element” or “every element” formulation.
1st Circuit: “each of the elements of the crime[s]” (1st Circuit Pattern Jury Instructions – Criminal, 3.02 Presumption of Innocence; Proof Beyond a Reasonable Doubt (2002).)
1st Circuit: “each essential element of the offense” (1st Circuit Pattern Jury Instructions – Criminal, 6.06 Charge to a Hung Jury (2002).)
6th Circuit: “every element of the crime charged” (6th Circuit Pattern Jury Instructions – Criminal, 1.03 Presumption of Innocence, Burden of Proof, Reasonable Doubt (1991).)
7th Circuit: “each of these propositions” (7th Circuit Federal Jury Instructions – Criminal 4.01 Elements of Offense – Single Offense Cases (1999).)
8th Circuit: “each essential element” (8th Circuit Model Jury Instructions – Criminal, 3.05 Description of Charge; Indictment Not Evidence; Presumption of Innocence; Burden of Proof (2000).)
8th Circuit: “all of [these] [the] essential elements” (8th Circuit Model Jury Instructions – Criminal 3.09 Elements of Offense; Burden of Proof (2000).)
9th Circuit: “every element of the charge” (9th Circuit Model Jury Instructions – Criminal 3.2 Charge Against Defendant Not Evidence – Presumption of Innocence – Burden of Proof (2000).)
11th Circuit: “each of the essential elements of the offense” (11th Circuit Pattern Jury Instructions – Criminal, SI 14 Alibi (2003), but see BI 3 [Definition Of Reasonable Doubt].)
District of Columbia: “every element” (Criminal Jury Instructions for the District of Columbia, 2.08 para 2 (Bar Association of the District of Columbia, 4th ed. 1993).)
Military: “every element ” (Military Judge’s Benchbook – 2001, 2-5-12 [used by all four military jurisdictions].)
C. Miscellaneous
Federal Pattern/Model Instructions: “each and every element of the offense charged” (O ’Malley Grenig, & Lee, Federal Jury Practice and Instructions, 12.10 para 4 (West, 5th ed. 2000).)
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