Brief Bank # B-694 (Re: F 2.01 n5 Applicability Of Circumstantial Evidence Principles To Direct Evidence/F 224 Inst 3 Limitation Of Reasonable Doubt/Burden Of Proof Principles To Circumstantial Evidence Improperly Implies That Such Principles Do Not Apply To Direct Evidence].)
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APPLICABILITY OF CIRCUMSTANTIAL EVIDENCE PRINCIPLES TO DIRECT EVIDENCE (F 2.01)
The defendant’s requested instruction and limitation of his argument to the jury conveyed an erroneous burden of proof to the jury regarding direct evidence.
Several crucial aspects of the prosecution’s case were predicated upon direct evidence. For example, the attempted murder count against (defendant) involving (victim 4) was primarily predicated upon her identification of appellant, his house, and his car. Moreover, important aspects of the (victim 1) and (victim 5) cases were also based upon direct evidence. This is so because the defense challenged the chain of custody regarding crucial evidence such as (victim 5)’s fingernails, the dog chain and the note in (victim 1 case). Much of the evidence relating to the question of whether the chain of custody was established was direct evidence. (See e.g. RT .) Because this case involved important jury instructions based both upon direct evidence and circumstantial evidence, the defense requested that the standard circumstantial evidence instructions (CALJIC 2.01 and 2.02) be supplemented with an instruction informing the jury that “if direct evidence is susceptible of two reasonable interpretations, one of which points to the defendant’s guilt and the other to his innocence, you must adopt that interpretation which points to the defendant’s innocence, and reject that interpretation which points to his guilt.” (CT 14496. See also RT 11,308-08; 11,398-400.) The trial court’s refusal of this instruction, combined with its refusal to allow the defense to argue that (victim 4)’s identification testimony should be subjected to the circumstantial evidence instructions, (See RTT 11,321, 11,421-3; CT 14,523.) erroneously permitted appellant to be convicted upon direct evidence despite the existence of a reasonable interpretation of that evidence pointing to the defendant’s innocence. This error violated appellant’s state and federal constitutional rights to trial by jury and due process. (Sixth and Fourteenth Amendments.) It is of course axiomatic that due process “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” (In Re Winship (1970) 397 U.S. 358, 364.) This requires the state to prove “‘every ingredient of the offense beyond a reasonable doubt . . . .’” (Sanstrom v. Montana (1979) 442 U.S. 510, 524.) Moreover, it is a violation of due process for a statutory scheme to relieve or shift the burden of the prosecution to prove each of the statutory required elements. (Mullaney v. Wilbur (1975) 421 U.S. 684, 699.)
It has been long and widely recognized that the prosecution’s burden to prove guilt beyond a reasonable doubt is equally applicable whether the evidence is direct, circumstantial or a combination of both. (See CALJIC 2.00; see also 9th Circuit Model Jury Instructions (1995) Instruction 3.06, page 35 [FOOTNOTE 1]. See also People v. Towler (1982) 31 Cal.3d 105, 118 [standard of review on appeal is the same for direct and circumstantial evidence].)
Because the nature of a burden of proof is to require one party to produce more evidence than the other (See People v. Nixon (1990) 225 CA3d 147, 148), when the evidence is evenly balanced, the party having the burden of proof loses. (See CALJIC 2.50-2.) In the context of proof beyond a reasonable doubt, this principle was long conveyed to the jury in terms of instructions such as the following:
“If the evidence in this case is susceptible of two constructions or interpretations each of which appears to you to be reasonable, and one of which points to the guilt of the defendant, and the other to his innocence, it is your duty, under the law, to adopt that interpretation which will admit of the defendant’s innocence, and reject that which points to his guilt.”
This instruction was given in People v. Bender (1945) 27 Cal.2nd 164, 175-177 and the Supreme Court held that it was “eminently proper as far as it goes.” (See also People v. Naumcheff (1952) 114 Cal.App.2nd 278, 281 [“If from the evidence you can with equal propriety draw two conclusions, the one of guilt, the other of innocence, then in such a case it is your duty to adopt the one of innocence and find the defendant not guilty.”] ; People v. Haywood (1952) 109 Cal.App.2nd 867, 872 [“The testimony in this case if its weight and effect be such as two conclusions can be reasonably drawn from it, the one favoring the defendant’s innocence, and the other tending to establish his guilt, law, justice and humanity alike demand that the jury shall adopt the former and find the accused not guilty.”] People v. Foster (1926) 198 Cal. 112, 127 [Jury instructed “that, considering the evidence as a whole, if it was susceptible of two reasonable interpretations, one looking ‘toward guilt and the other towards the innocence of the defendant, it was their duty to give such facts and evidence the interpretation which makes for the innocence of the defendant.’”; People v. Barthleman (1898) 120 Cal. 7, 10 “If the evidence points to two conclusions, one consistent with the defendant’s guilt, the other consistent with the defendant’s innocence, the jury are bound to reject the one of guilt and adopt the one of innocence, and acquit the defendant.”]; People v. Carrol (1947) 79 Cal.App.2nd 146, 150 [“You are instructed that if from the evidence you can with equal propriety draw two conclusions, the one of guilt, the other of innocence, it is your duty to adopt the one of innocence and find the defendant not guilty.”].)
In the federal system, the principle set forth above is conveyed to the jury by a standard jury instruction which provides as follows:
“If the jury views the evidence in the case as reasonably permitting either of two conclusions – one of innocence, the other of guilt – the jury must, of course, adopt the conclusion of innocence.” (Devit Blackmar, et al. Federal Jury Practice and Instructions 1992, section 1210, page 354; see also U.S. v. James (9th Cir. 1978) 576 Fed.2nd 323, 327.) [FOOTNOTE 2]
In California, however, CALJIC has limited the applicability of this principle to circumstantial evidence only. This probably stems from the fact that most of the focus of the litigation in this area has been upon whether further elaboration of the “two reasonable interpretations” should be given in cases which are based entirely upon circumstantial evidence. For example, People v. Bender, supra upon which CALJIC relies for its circumstantial evidence instruction (CALJIC 2.01) did not hold that a more general “two reasonable interpretation” instruction should not be given in cases involving direct evidence. To the contrary, Bender stated that such an instruction was “eminently proper.” (People v. Bender 27 Cal.2d at 177.) Thus, Bender did not hold that such an instruction should only be given in circumstantial evidence cases, it merely held that the more general instruction did not go far enough to properly instruct the jury in circumstantial evidence cases. Hence, while the circumstantial evidence instruction itself need not be given when the prosecution does not substantially rely on circumstantial evidence (See People v. Wiley (1976) 18 Cal.3d 162, 175), the more general instruction should be given when direct evidence is involved.
In the present case, the limitation of the “two reasonable interpretation” rule to circumstantial evidence only was especially prejudicial because the jury was permitted to find the defendant guilty based upon direct evidence for which two reasonable interpretations existed. Such a result flowed naturally and reasonably from the distinctions the instructions made between direct and circumstantial evidence and the express limitation of the two “interpretations” rule to circumstantial evidence only. As recognized in People v. Solis (1976) 58 Cal.App.3d 460, 474-75, if an instruction is expressly made applicable to one element to the exclusion of another the jury may reasonably conclude that the instruction is limited to the one specified element. Additionally, the error was especially prejudicial in the present case because the trial court rejected the defense request to argue that the identification testimony in the attempted murder count should be evaluated under the circumstantial evidence instructions. (RTT 11,422-3, CT 14,523.) Moreover, because the error violated appellant’s federal constitutional rights to trial by jury and due process and misinstructed the jurors upon the prosecution’s burden of proof, the error should be considered a structural one which is reversible per se. (See Sullivan v. Louisiana (1993) 503 U.S. ; 124, L.Ed.2nd 182.)
Footnote 1: “Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as testimony of an eyewitness. Circumstantial evidence is indirect evidence, that is, proof of a chain of facts from which you could find that another fact exists, even though it has not been proven directly. You are to consider both kinds of evidence. The law permits you to give equal weight to both, but it is for you to decide how much weigh to give any evidence.”
Footnote 2: The instruction in James provided as follows “. . . if you view the evidence in this case as reasonably permitting either of two conclusions, one pointing to innocence and the other pointing to guilt, you must necessarily adopt the conclusion pointing to innocence, because so long as that is a reasonable conclusion and it exists, it would be impossible to find guilt beyond a reasonable doubt, because the very existence of a reasonable alternative on the other side would preclude you from finding guilt beyond a reasonable doubt.”