CALCRIM Motion Bank # CCM-006 (Re: Motion To Use “The Government” Or “The State” In Lieu Of “The People” ].)
__________ COURT OF CALIFORNIA
COUNTY OF __________
PEOPLE OF THE STATE OF CALIFORNIA,
MOTION TO USE “THE GOVERNMENT” OR “THE STATE” IN LIEU OF “THE PEOPLE” IN FRONT OF JURY AND IN JURY INSTRUCTIONS; POINTS AND AUTHORITIES IN SUPPORT OF MOTION
Defendant requests that the prosecution be referred to as “the government” or “the state” in front of the jury and that following changes be made where ever the word “the People” appears in the jury instructions:
Change “People” to “government” or “state“
POINTS AND AUTHORITIES IN SUPPORT OF MOTION
A. Reference To The Prosecution As “The People” Unfairly Favors The Prosecution
Referring to the prosecution as “The People” violates a criminal defendant’s state and federal substantive and procedural due process rights as well as the right to fair trial by jury. (U.S. Const., 5th, 6th and 14th Amendments; but see People v. Black (2003) 114 CA4th 830 [California statutes mandate that prosecutions be conducted in the name of “The People of the State of California”].) Whether a substantive due process right exists and has been violated requires the court to “…[e]xamine our Nation’s history, legal traditions and practices.” (Washington v. Gulcksberg (1997) 521 US 702, 710 [138 LEd2d 772; 117 SCt 2258].) Both our Nation’s history and legal practices indicate that referring to the prosecution as “The People” violates substantive due process rights. The vast majority of jurisdictions in the United States recognize the constitutionally correct way for a jurisdiction’s legal system to refer to its prosecution is not as “The People.” Of all the state and federal jurisdictions, only California, Colorado, Illinois, Michigan and New York refer to the prosecution as “The People.”
Calling the prosecution “The People” blurs and confuses critical distinctions. It is the prosecution’s duty, on behalf of the executive branch of government, to litigate against criminal defendants. It is the jury’s duty, as representatives of the people of a defendant’s community, to listen impartially to the evidence presented by the prosecution and then decide guilt. (See e.g., J.E.B. v. Alabama (1994) 511 US 127 [128 LEd2d 89; 114 SCt 1419], Powers v. Ohio (1991) 499 US 400 [113 LEd2d 411; 111 SCt 1364] and Batson v. Kentucky (1986) 476 US 79 [90 LEd2d 69; 106 SCt 1712] [establishing protections to ensure juries are not selected based on impermissible exclusionary practices].) In California, both groups purportedly represent “The People” of the state—the jurors actually, and the prosecution putatively through its title in criminal cases. Thus, confusion necessarily reigns when all are referred to as “the People.”
All, that is, except the defendant. While California’s custom unconstitutionally aligns groups of people who have vastly different tasks to perform in the criminal justice system, it simultaneously excludes the defendant. The caption in every California criminal case reads “The People of the State of California versus The Defendant.” This dichotomy is reinforced by the CALCRIM instructions which use the terms “The People” and “the defendant.
In other words, there are “The People,” and then there is “the defendant.” While the message is subtle, these oppositional phrases necessarily imply to jurors that defendants are somehow “other than” people. And, even more ironically and importantly, while the dichotomy suggests “the Defendant” is not one of “The People,” the dichotomy expressly states the government is.
This distinction in the language that juries hear over and over again in court is critical. From the beginning of the proceedings and consistently throughout trial, pitting “The People” against “the Defendant” literally suggests to a criminal defendant’s jury that the defendant is something (at worst) or someone (at best) other than the rest of us. To the extent this dichotomy suggests criminal defendants are something other than people, this clearly violates due process. To the extent this dichotomy suggests criminal defendants are someone other than the people, this violates the defendant’s right to trial by jury of his or her peers.
Additionally, reference to “The People” as the plaintiff improperly tends to align the jury with the prosecution and against the defendant. “[I]t is not entirely correct to say that the People are the real complainants…it is perhaps better to say that the People are the ‘arbiters, umpires, the judges — to see the accused gets a fair and impartial trial.’” (People v. Schoos (IL 1948) 78 NE2d 245, 247; see also People v. Brown (MI 1972) 43 Mich.App. 170, 175 [204 NW2d 72] [error to suggest to jury that “in presenting the charge the prosecution was acting for the entire citizenry, including the jurors…”].)
In sum, California’s reference to the prosecution as “The People” versus “the Defendant” violates both the letter and spirit of the due process and trial by jury clauses of the state (Art. I, §7, §15 and §16) and federal (5th, 6th and 14th Amendments) Constitutions. The phrase “The People” impermissibly aligns two separate bodies with different functions — the prosecution and the jury — at the same time the phrase “versus the Defendant” excludes the defendant from the community of his peers who form his jury.
Moreover, the juxtaposition of the defendant and the People creates an overly advantageous position for the prosecution. This lack of balance between the prosecution and the defense violates the due process clause of the federal constitution. (See, e.g., Wardius v. Oregon (1973) 412 US 470 [37 LEd2d 82; 93 SCt 2208]; Reagan v. United States (1895) 157 US 301, 310 [15 SCt 610; 39 LEd 709]; People v. Moore (1954) 43 C2d 517, 526-27 [“There should be absolute impartiality as between the People and the defendant in the matter of instructions”].)
B. “People” Should Not Be Capitalized
Assuming, arguendo, that the term “People” is used in referring to the prosecution (but see above), there is no basis for capitalizing the term. This unfairly gives the prosecution undue stature, especially since the term “defendant” is not capitalized. (People v. Moore, 43 C2d at 526-27.)
C. Additional Constitutional Grounds For These Requests
These requests are 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 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, supra, 43 C2d at 526-27 [“There should be absolute impartiality as between the People and the defendant in the matter of instructions”]; Reagan v. United States, supra, 157 US at 310.) 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.)
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].)