CALCRIM Brief Bank # CCB-001 [Re: Blue Ribbon Committee]
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I. THE INSTRUCTIONS GIVEN IN APPELLANT’S TRIAL WERE NOT SUFFICIENTLY UNDERSTANDABLE TO SATISFY THE FEDERAL CONSTITUTION.
A. Introduction
Because heightened reliability is required as to both guilt and penalty in a death penalty case, it is especially important that the jurors fully understand the instructions they are given by the judge. However, the California Judicial Council’s Blue Ribbon Jury Instruction Committee and respected researchers have questioned the understandability of the CALJIC instructions given in appellant’s trial. In fact, as a result of the Blue Ribbon Commission findings that the CALJIC instructions are on occasion “simply impenetrable to the ordinary juror” [preface to CALCRIM draft], the CALJIC instructions were completely replaced by the new CALCRIM instructions effective January 2006. And, as a result of numerous studies by the academic community, it has been empirically demonstrated that appellant’s jurors more than likely labored under fundamental misunderstandings of the crucial precepts they were required to apply before imposing a death sentence.
Hence, instructions which are confusing or difficult to understand undermine the very foundation of the right to trial by jury: “Many lawyers share the belief that instructions are given little consideration in the deliberations of jurors. While this may be true in some cases, I believe they follow them to the extent they understand them and give up only when they become bewildered.” (Werkman v. Howard Zink Corp. (1950) 97 Cal.App.2d 418, 428; Shinn, P.J. concurring.)
B. The Importance Of Jury Instructions Is Beyond Dispute
“It is quite simply a hallmark of our legal system that juries be carefully and adequately guided in their deliberations.” (Gregg v. Georgia (1976) 428 U.S. 153, 193 [opn. of Stewart, Powell, and Stevens, JJ.]; see also Carter v. Kentucky (1981) 450 U.S. 288, 302; Bollenbach v. United States (1946) 326 U.S. 607, 612; People v. Thompkins (1987) 195 Cal.App.3d 244, 250.)
“Jurors are not experts in legal principles; to function effectively, and justly, they must be accurately instructed in the law.” (Carter v. Kentucky, supra, 450 U.S. at 302.) “Discharge of the jury’s responsibility for drawing appropriate conclusions from the testimony depend[s] on discharge of the judge’s responsibility to give the jury the required guidance by a lucid statement of the relevant legal criteria.” (Bollenbach v. United States, supra, 326 U.S. at 612.)
Hence, instructions which are confusing or difficult to understand undermine the very foundation of the right to trial by jury: “Many lawyers share the belief that instructions are given little consideration in the deliberations of jurors. While this may be true in some cases, I believe they follow them to the extent they understand them and give up only when they become bewildered.” (Werkman v. Howard Zink Corp. (1950) 97 Cal.App.2d 418, 428; Shinn, P.J. concurring.)
C. The Judicial Council’s Blue Ribbon Commission Has Found That The CALJIC Instructions Do Not Ensure Juror Understanding Of The Law.
The preface to the drafts for the Proposed Judicial Council instructions provided the following description of why the Blue Ribbon Commission found that CALJIC should be “totally rewritten:”
In December of 1995, the Judicial Council established a Blue Ribbon Commission on Jury System Improvement. The Commission’s mission was to “conduct a comprehensive evaluation of the jury system and [make] timely recommendations for improvement.” After extensive study, the commission made a number of recommendations to the Chief Justice and the Judicial Council, one of which was that the Council create a Task Force on Jury Instructions to draft more understandable instructions. The recommendation stemmed from the Commission’s conclusion that “jury instructions as presently given in California and elsewhere are, on occasion, simply impenetrable to the ordinary juror.” In light of the Commission’s view that jurors could be accurately instructed on the law in language more easily absorbed and understood, the Judicial Council acted on the recommendation, creating the current Task Force. The Chief Justice noted the two principal goals underlying the creation of more intelligible instructions are “(1) making juror’s experiences more meaningful and rewarding and (2) providing clear instructions that will improve the quality of justice by insuring that jurors understand and apply the law correctly in their deliberations.” [Emphasis added.]
If after “extensive study” by a Blue Ribbon Commission the Judicial Council decides to embark upon a long and costly total “re-writing” of the standard jury instructions, then it must be concluded that the CALJIC instructions – such as those given in the present case – were seriously defective and not able to effectively convey the necessary legal principles to the jury.
The preface to the completed CALCRIM instructions repeated the Blue Ribbon Commission’s finding about the CALJIC instructions being “impenetrable” and further explained why this lack of understandability impaired the jurors’ ability to “apply the law fairly and accurately.”
The reason instructions are so often impenetrable is that they are based on the language of case law and statutes written by and for a specialized legal audience and expressed in terms of art that have evolved through multiple languages, in many countries, over several centuries. We do not seek to lose either the majesty of the law or the rich language in which lawyers and judges have expressed it. However, our work reflects a belief that sound communication takes into account the audience to which it is addressed. Jurors perform an essential service in our democracy. We are absolutely dependent upon them to apply the law fairly and accurately. In order to do so, they must be able to understand the instructions they are asked to follow. (Preface to CALCRIM, paragraph 2.)
D. Empirical Studies Corroborate The Blue Ribbon Commission’s Findings That The CALJIC Instructions Are “Impenetrable To The Ordinary Juror”.
Empirical studies further corroborate the Blue Ribbon Commission’s findings as to the inability of jurors to understand and follow the CALJIC instructions.
For example, in a study of ten separate California juries, the following findings were made: (1) Consideration of mitigating evidence – “[F]ully 8 out of the 10 California juries included persons who dismissed mitigating evidence because it did not directly lessen the defendant’s responsibility for the crime itself.” (2) Comprehension of Legal Crimes and Legal Terms – “Of the 30 California jurors interviewed, only 13 showed reasonably accurate comprehension of the concepts of aggravating and mitigating.” (See Haney, Sontag and Costanzo, “Deciding to Take a Life: Capital Juries, Sentencing Instructions, and the Jurisprudence of Death,” 50 Journal of Social Sciences No. 2 (Summer 1994).)
This study and others established that a substantial majority (almost 25%) of death-qualified jurors erroneously believed that life without parole will allow the parole or judicial system to release the defendant in less than 10 years due to overcrowding and other factors; over 75% disbelieve the literal language of life without parole. (Haney, Sontag and Costanzo, supra [“Four of five death juries cited as one of their reasons for returning a death verdict, the belief that a sentence of life without parole did not really mean that the defendant would never be released from prison. . . .”]; see also Simmons v. South Carolina (1994) 512 U.S. 154.) Moreover, a juror’s belief as to the meaning of the sentences is the single most important reason for voting for a particular verdict. (CACJ Forum (1994) Vol. 21, No. 2, p. 45.)
Other corroborative studies include the following:
James Frank and Brandon K. Applegate, Assessing Juror Understanding of Capital Sentencing Instructions, 44 Crime and Delinquency No. 3 (1998) – A mock jury study revealed that juror comprehension of sentencing instructions is limited, especially with regard to instructions dealing with mitigation. The defendant is typically disadvantaged by the misunderstandings. However, juror comprehension can be improved by rewriting the instructions and by giving jurors copies of the instructions.
Richard Weiner, The Role of Declarative Knowledge in Capital Murder Sentencing , 28 Journal of Applied Psychology, No. 2 (1998) – A mock jury study indicated that juror comprehension was low and the less the jurors understand the mitigation instructions, the more likely they are to impose the death penalty.
Marla Sandys, Cross-Overs–Capital Jurors Who Change Their Minds About the Punishment: A Litmus Test for Sentencing Guidelines, 70 Indiana Law Journal 1183, 1220-1221 (1995) – The decision-making process is “governed by confusion, misunderstanding and even chaos. Jurors decide life- and-death questions laboring under numerous misconceptions about the utility and operation of capital punishment – sometimes unclear about the import of certain kinds of evidence (including something as basic as whether the evidence is aggravating or mitigating), almost always confused over the meaning of the all important capital instructions, in some instances [they were] wrong about the decision rules by which they are to reach a sentencing verdict, and unclear about (or highly skeptical of) the ultimate consequences of the very alternatives between which they must choose.” (Id. at 1225.) Furthermore, jurors who are misled by the capital instructions into believing that the judicial formulas dictate a certain outcome in their deliberations usually have the outcome of death in their mind. (Id. at 1226.)
Constanzo & Constanzo, Jury Decision Making in the Capital Penalty Phase, 16 Law and Human Behavior, 185 (1992) – Mock jurors do not fully understand the meaning of the most critical legal terminology used in the sentencing phase instructions, especially the terms aggravation and mitigation . (Id. at 188.)
In sum, these studies corroborate the Blue Ribbon Commission’s finding that the CALJIC instructions are “impenetrable to ordinary jurors.”
E. The Use Of “Impenetrable” Jury Instructions In A Criminal Prosecution Violates State Law And The Federal Constitution.
Jury instructions – such as those given in the present case – which are confusing and difficult for lay jurors to understand, violate the state (Cal. Const. Article I, sections 1, 7, 15, 16 and 17) and federal constitutional rights to due process and fair trial by jury (6th and 14th Amendments) which require that the jury fully understand the law stated in the jury instructions and that the jury fairly and accurately apply that law. (See Estelle v. McGuire (1991) 502 U.S. 62, 70-72 [due process implicated if jurors misunderstood instructions]; see also United States v. Gaudin (1995) 515 U.S. 506, 514 [it is “the jury’s constitutional responsibility . . . not merely to determine the facts, but to apply the law to those facts . . .”].)
F. Juror Confusion And Misunderstanding As To Jury Instructions Undermines The Reliability Of The Verdicts And Necessitates Reversal.
1. The 8th And 14th Amendments Requires Heightened Reliability As To Both Guilt And Penalty
a. Death Is Different
“[T]he penalty of death is qualitatively different from a sentence of imprisonment, however long. . . . Because of that qualitative difference, there is a corresponding difference in the need for reliability. . . . ” (Woodson v. North Carolina (1976) 428 U.S. 280, 305; see also Lankford v. Idaho (1991) 500 U.S. 110, 125-26; Johnson v. Mississippi (1988) 486 U.S. 578, 584; Mills v. Maryland (1988) 486 U.S. 367, 377; Caldwell v. Mississippi (1985) 472 U.S. 320, 329-330; California v. Ramos (1983) 463 U.S. 992, 998-999 fn 9.)
b. Greater Reliability Required As To Both Guilt And Penalty
Even in noncapital cases a certain standard of reliability is constitutionally required. This is so because “[r]eliability is . . . a due process concern.” (White v. Illinois (1992) 502 U.S. 346, 363-64.) The Due Process Clauses of the federal constitution (14th Amendment) require that criminal convictions be “reliable and trustworthy.” (California v. Green (1970) 399 U.S. 149, 164 [due process might prevent convictions where a reliable evidentiary basis is totally lacking]; see also Donnelly v. DeChristoforo (1974) 416 U.S. 637, 646 and cases collected at fn. 22 [due process “cannot tolerate” convictions based on false evidence]; Thompson v. City of Louisville (1960) 362 U.S. 199, 204.)
However, an even higher standard of reliability is required under the 8th and 14th Amendments in capital cases, because death is different. The 8th and 14th Amendments require a “greater degree of accuracy” and reliability. (Gilmore v. Taylor (1993) 508 U.S. 333, 342.) Thus when the state seeks death, courts must ensure that every safeguard designed to guarantee “fairness and accuracy” in the “process requisite to the taking of a human life” is painstakingly observed. (Ford v. Wainwright (1986) 477 U.S. 399, 414; see also Gardner v. Florida (1977) 430 U.S. 349; see also Gore v. State (Fla. 1998) 719 So.2d 1197, 1202 [in death case “both the prosecutors and courts are charged with an extra obligation to ensure that the trial is fundamentally fair in all respects”].) As a result, in a capital case heightened reliability is required as to both guilt (see Beck v. Alabama (1980) 447 U.S. 625, 627-46) and penalty. (See Woodson v. North Carolina (1976) 428 U.S. 280, 305; see also Gilmore v. Taylor (1993) 508 U.S. 333, 338-45; Penry v. Lynaugh (1989) 492 U.S. 302, 328; Johnson v. Mississippi (1988) 486 U.S. 578, 587; Green v. Georgia (1979) 442 U.S. 95, 96-97.)
And, this requirement of reliability extends to post-conviction review where “the severity of the death sentence mandates heightened scrutiny in the review of any colorable claim of error.” (Edelbacher v. Calderon (9th Cir. 1998) 160 F.3d 582, 585 see also Kyles v. Whitley (1995) 514 U.S. 419, 422 [“[O]ur duty to search for constitutional error with painstaking care is never more exacting than it is in a capital case.”].)
2. The Fourteenth Amendment Requires That The Guilt And Penalty Verdicts Be Reliable
Verdict reliability is required by the Due Process Clause (14th Amendment) of the federal constitution. (See Beck v. Alabama, supra; White v. Illinois (1992) 502 U.S. 346, 363-64; Donnelly v. DeChristoforo (1974) 416 U.S. 637, 646.)
