Brief Bank # B-803 (Re: F 0.50d [Improper To Refer To Prosecution As “The People”])
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EXCERPT FROM APPELLANT’S OPENING BRIEF
III. APPELLANT WAS DENIED HIS RIGHTS TO STATE AND FEDERAL DUE PROCESS AND TO A FAIR TRIAL BY JURY BY THE PROSECUTION’S REFERENCE TO ITSELF AS “THE PEOPLE.”
A. Summary Of Proceedings Below And Introduction.
During final argument, the prosecutor stated, “[I] do have a client. He is not sitting or she –” which defense counsel objected was improper argument. (R.T. 351.) The trial court overruled defense counsel’s objection and the prosecutor continued: “My client is the people of the state of California, and I am an advocate for them.” (Ibid.)
Defense counsel’s objection to the prosecutor’s characterization raises for this Court a fundamental issue of apparently first impression: whether it is constitutionally permissible to refer to the prosecution as “The People.” Contrary to what one would assume from the ubiquitous reference to the prosecution as “The People” at every stage of every criminal case in California state history, appellant respectfully maintains that the answer must be no. It is fundamentally unfair and contrary to the letter and spirit of the state and federal Constitutions to refer to the prosecution as “The People,” rather than correctly as the governmental branch responsible for prosecuting individual people.
Calling the prosecution “The People” is a structural defect, requiring reversal per se. However, assuming arguendo this Court does not agree with appellant’s systemic argument, reversal of appellant’s convictions is still required in this case because the prosecutor’s argument amounted to prejudicial misconduct.
B. Calling The Prosecution “The People” Violates State and Federal Constitutional Principles and The Rights They Guarantee.
Appellant respectfully maintains it is fundamentally incorrect and unfair to refer to the prosecuting bodies of the state of California as “The People” in criminal cases. The prosecution is part of the executive branch of government we the people established in the federal constitution. (Clinton v. Jones (1997) 520 U.S. 681, 117 S.Ct. 1636, 1997 U.S.LEXIS 3254, *33.) The prosecution is part of the State. It is not “The People.” Indeed, this is a distinction which every federal district and 45 of the 50 states recognize by referring to the prosecution in criminal cases as either “The State,” “The Commonwealth,” or “The United States,” depending upon the jurisdiction. In stark contrast, only California, Colorado, Illinois, Michigan and New York refer to the prosecution as “The People.” [Footnote 1]
Referring to the prosecution as “The People” violates criminal defendants’ state and federal substantive due process rights. In Washington v. Glucksberg (1997) 521 U.S. 702, 1997 U.S.LEXIS 4039, the United States Supreme Court recognized that to find whether a substantive due process right exists and has been violated, “We . . . examin[e] our Nation’s history, legal traditions, and practices.” (Id. at p. *13 [Washington state statute criminalizing assisted suicide did not violate substantive due process because historical analysis and current state consensus showed no fundamental right to assisted suicide].) Both our nation’s history and legal practices indicate that referring to the prosecution as “The People” violates substantive due process rights.
As appellant has set forth above, 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.” The Supreme Court recognized in Duncan v. Louisiana (1968) 391 U.S. 145 that while “virtually unanimous adherence” to a standard “may not conclusively establish it as a requirement of due process,” such overwhelming consensus “does reflect a profound judgment about the way in which law should be enforced and justice administered.” (Id. at p. 155.) California currently operates in a tiny minority of jurisdictions which have not yet recognized the more constitutionally sound manner of administering justice. The virtually unanimous adherence to this standard elsewhere indicates California’s practice of calling the prosecution “The People” violates due process.
Historically, it is virtually beyond dispute that the framers of the federal Constitution and its amendments envisioned “the People” and “the State” as fundamentally different. According to its Preamble, “We the People . . . ordain and establish this Constitution for the United States of America.” [Footnote 2] In this Constitution, we the people vested powers in three branches of government — executive, legislative and judiciary. These checks and balances were designed to prevent the state from overzealously usurping the rights of the very people who granted authority to those branches of government.
Maintaining the correct relationship between individual people and the state was so overwhelmingly crucial that when the Constitution was amended with the Bill of Rights, four of the ten amendments explicitly delineated the rights of “the people” (Fourth Amendment), a “person” (Fifth Amendment) and “the accused” (Sixth Amendment) in criminal matters. [Footnote 3] Later, the Fourteenth Amendment articulated specific protection of individual liberties from state (versus federal government) encroachment:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law.”
On the other hand, the government is emphatically not referred to as “The People” anywhere in the document. It is the people whose rights the constitution was drafted to protect. (See Collins v. Harker Heights (1992) 503 U.S. 115, 126 [noting that the Due Process Clause was intended to prevent government officials “from abusing [their] power, or employing it as an instrument of oppression”]; Wolff v. McDonnell (1974) 418 U.S. 539, 558 [“[T]he touchstone of due process is protection of the individual against arbitrary action of the government“; emphasis added]; People v. Hill (1998) 17 Cal.4th 800, 818-819 [the prosecution represents “a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest . . . is . . . that justice shall be done,” citing Berger v. United States (1935) 295 U.S. 78, 88].)
As well as violating substantive due process rights, referring to the prosecution as “The People” also violates criminal defendants’ state and federal constitutional rights to a fair trial by a jury of their peers, and to the presumption of innocence. The fact that “The People” have charged a defendant with a crime necessarily means that the people of his community cannot presume he is innocent. “The People” are not starting with a tabula rosa. “The People” have charged him with a crime. Calling the prosecution “The People” necessarily 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 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. [Footnote 4] Unfortunately, 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 in every criminal case when, inter alia, the jury is instructed with CALJIC No. 1.00 (“Both the People and a defendant have a right to expect that you will conscientiously consider and weigh the evidence . . . .”) and CALJIC No. 17.40 (“The People and the defendant are entitled to the individual opinion of each juror”).
In other words, there are “The People,” and then there is “the defendant.” Appellant acknowledges that while the message is subtle and likely unintentional, 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. One need only look to recent changes in legal language to see that the courts are becoming increasingly aware of what linguists and sociologists have learned: language shapes people’s perceptions. [Footnote 5] We no longer exclusively use “he” to refer to the third person, singular. Similarly, CALJIC No. 1.27 defines “firefighter,” rather than only a “fireman” and CALJIC No. 1.26 defines “peace officer,” rather than “highway patrolman,” or “policeman.” These changes in the language of the criminal justice system reflect our belief that the precise words we choose actually do reflect and shape people’s perceptions.
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.
In sum, California’s reference to the prosecution as “The People” versus “the Defendant” violates both the letter and spirit of the state and federal 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.
Appellant urges this Court to recognize this error, which is simple to remedy. [Footnote 6] Appellant respectfully requests this Court require the prosecuting bodies of the state of California to do as 45 other states and the federal government — refer to itself as “the State of California.” Let “The People” judge a defendant’s guilt, as the state and federal constitutions demand.
* * * * * * *
D. These Prejudicial Errors Require Reversal
1. Referring to the prosecution as “The People” is a structural defect that requires reversal per se.
Referring to the prosecution as “The People” represents the quintessence of structural, rather than trial, error and thus requires reversal per se. A structural error is a “defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.” (Arizona v. Fulminante (1991) 499 U.S. 279, 310.) That is precisely what occurs when the prosecution is referred to as “The People.” This ubiquitous reference permeates the criminal justice system and necessarily affects the framework within which any defendant’s trial proceeds.
Structural error occurs in only a very limited number of situations: lack of an impartial trial judge (Tumey v. Ohio (1927) 273 U.S. 510); total deprivation of right to counsel (Gideon v. Wainwright (1963) 372 U.S. 335); denial of right of self-representation at trial (McCaskle v. Wiggins (1984) 465 U.S. 168); denial of right to public trial (Waller v. Georgia (1984) 467 U.S. 39); unlawful exclusion of grand jurors of defendant’s race (Vasquez v. Hillery (1986) 474 U.S. 254); and erroneous reasonable-doubt instruction to jury (Sullivan v. Louisiana (1993) 508 U.S. 275).
It is clear that referring to the prosecution as “The People” fits precisely into this list. All these errors represent “structural defects in the trial mechanism, which defy analysis by `harmless-error’ standards.” (Arizona v. Fulminante, supra, 499 U.S. at p. 309.) As appellant has set forth above in Argument III.B., it is undeniably error to refer to the prosecution as “The People.” However, it is not possible to measure that error on a case-specific basis. The error defies harmless error analysis. The defect is structural, and thus requires reversal per se.
OPENING BRIEF FOOTNOTES
Footnote 1: This result is based on a November 16, 1998 Lexis search of official reporters’ case titles in each jurisdiction. Appellant is currently conducting research regarding jury instructions and case captions in criminal complaints and informations throughout the country.
Footnote 2: The Preamble to the California state Constitution begins similarly: “We, the People . . .”
Footnote 3: The Eighth Amendment guarantees against excessive bail, fines and cruel and unusual punishment, but does not refer specifically to any actors.
Footnote 4: See J.E.B. v. Alabama (1993) 511 U.S. 127, Powers v. Ohio (1991) 499 U.S. 400 and Batson v. Kentucky (1986) 476 U.S. 79 (establishing protections to ensure juries are not selected based on impermissible exclusionary practices).
Footnote 5: “We dissect nature along lines laid down by our native languages. The categories and types that we isolate from the world of phenomena we do not find there because they stare every observer in the face; on the contrary, the world is presented in a kaleidoscopic flux of impressions which has to be organized by our minds — and this means largely by the linguistic systems in our minds. We cut nature up, organize it in this way — an agreement that holds throughout our speech community and is codified in the patterns of our language. The agreement is, of course, an implicit and unstated one, but its terms are absolutely obligatory; we cannot talk at all except by subscribing to the organization and classification of data which the agreement decrees.” (Whorf, Language, Thought and Reality (MIT Press 1956), pp. 247-248.
Footnote 6: Appellant respectfully maintains that the fact criminal cases in California have always referred to the prosecution as “The People” does not necessarily mean the behavior comports with the state and federal constitutions. For example, before the United States Supreme Court decided Gideon v. Wainwright (1963) 372 U.S. 335, the courts had not recognized for nearly two hundred years that the federal constitution guaranteed indigent criminal defendants the right to counsel.
EXCERPT FROM APPELLANT’S REPLY BRIEF:
III. APPELLANT WAS DENIED HIS RIGHTS TO STATE AND FEDERAL DUE PROCESS AND TO A FAIR TRIAL BY JURY BY THE PROSECUTION’S REFERENCE TO ITSELF AS “THE PEOPLE.”
Appellant argues what is paradoxically an issue of first impression: referring to the prosecution as “The People” is a state and federal due process violation amounting to structural error. (AOB pp. 22-30, 32-33.) Assuming arguendo this Court does not recognize that systemic violation, the prosecutor in this case committed prejudicial misconduct when he argued “[I] do have a client. He is not sitting or she —. [Para.] My client is the people of the state of California, and I am an advocate for them.” (R.T. p. 35; AOB pp. 22-23, 30-32, 33-35.)
Respondent maintains there is nothing untoward in either instance. Without daring even to imagine otherwise, respondent contends that simply because the prosecution has always been referred to as “The People,” there is no problem. (RB pp. 20-21.) The prosecutor’s argument was therefore correct. (RB pp. 24-25.) Finally, if there was any error, it was obviously harmless. (RB pp. 22-23, 25.)
Respondent is wrong in each regard. Respondent apparently does not wish to — and perhaps cannot — address appellant’s major substantive contentions. Respondent’s only substantive assertion is that calling the prosecution “The People” is correct because we have always done it that way. Respondent’s authorities actually support appellant’s position. Finally, calling the prosecution “The People” is a structural error warranting reversal per se, and the prosecutor’s argument in this case amounts to prejudicial misconduct.
A. Calling The Prosecution “The People” Violates State And Federal Constitutional Principles And The Rights They Guarantee.
As appellant set forth at length in his Opening Brief, calling the prosecution “The People” violates individuals’ state and federal constitutional rights to substantive due process, and to a fair trial by jury. (AOB pp. 23-30.) The practice flies directly in the face of both the language and the spirits of the state and federal constitutions — wherein we, the people created a tripartite form of government in order to protect individuals against potential overreaching by the state.
Calling the prosecution “The People” violates the very principles those constitutions establish and protect. In order for jurors to comprehend their role in the prosecution of an individual, the jurors must understand they are not the government. They are the judges of the facts presented by the state against a defendant. Calling the prosecution “The People” blurs this critical distinction between the state and the jurors; simultaneously, the practice impermissibly excludes the defendant from his community of people. As set forth at length in appellant’s opening brief, this violates substantive due process and the right to fair trial by jury.
Respondent does not acknowledge any of this.
Respondent’s only substantive contention is that calling the prosecution “The People” must be correct because we have always done it this way and there is no authority that says we should do otherwise. (RB pp. 20-21.) Yet respondent has not — and cannot — point to any authority saying we should call the prosecution “The People”: no statute, no legislative history, no case law, no public policy guide.
If the practice were indeed as sacrosanct as respondent asserts, authority would abound. What respondent refuses to acknowledge is that the prosecution in California has traditionally been called “The People” apparently only because no one has ever asked for the practice to end.
Under respondent’s own logic of convention, the practice should end. As appellant set forth in his opening brief, California is one of only five states which call the prosecution “The People” in case titles. (AOB p. 24.) In jury instructions, California is a member of an even smaller minority. Only in California, New York and Colorado does the court instruct jurors that “The People” — rather than the state, the commonwealth, the government, or the prosecution — are proceeding against the defendant. (See Appendix A.) While this “virtually unanimous adherence” to a standard “may not conclusively establish it as a requirement of due process,” such overwhelming consensus “does reflect a profound judgment about the way in which law should be enforced and justice administered.” (Duncan v. Louisiana (1968) 391 U.S. 145, 155.)
Moreover, the cases on which respondent relies support appellant’s position. The California Supreme Court in People v. Fierro (1991) 1 Cal.4th 173 acknowledged “It is not a distortion but a simple fact that the prosecutor is a representative not of any ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all . . . .” (Id. at p. 207; internal quotations and citation omitted; emphasis added.) Similarly, the court in People v. Hill (1998) 17 Cal.4th 800 recognized, “A prosecutor is held to a standard higher than that imposed on other attorneys because of the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the state.” (Id. at p. 820; emphasis added.)
In these cases, the California Supreme Court has recognized what is clearly true. It is a governmental entity that prosecutes defendants. [Footnote 7] “The People” do not. If indeed “the people” prosecuted individuals, there would be no need for trial judges nor appellate justices. The prosecutor would represent the interests, ideals, and wills of “the people,” and justice would necessarily be done. [Footnote 8]
Of course, this is absurd. The judiciary protects against, inter alia, prosecutorial overreaching. One of the functions of the judicial branch is as a check on the executive branch’s prosecution of individuals. Our court system itself is, among other things, an inherent recognition that individuals — the people — will be prosecuted by the state, and a neutral third party will need to arbitrate. It is incorrect to lump all players together as “The People.” As trial judges in the state of Idaho explain to potential jurors in criminal cases:
“This criminal case has been brought by the state of Idaho. I will sometimes refer to the state as the prosecution. The state is represented at this trial by the prosecuting attorney . . . .”
* * * *
“Service on a jury affords you an opportunity to be a part of the judicial process, by which the legal affairs and liberties of your fellow men and women are determined and protected under our form of government. You are being asked to perform one of the highest duties of citizenship, that is, to sit in judgment on facts which will determine the guilt or innocence of persons charged with a crime.” (ICJI Nos. 102, 001 (Idaho Criminal Jury Instructions, Idaho Law Foundation, 1995; emphasis added.)
Similarly, Pennsylvania jurors are instructed:
“Members of the jury, you are about to perform one of the most serious duties of citizenship. You are going to decide whether a fellow person, Mr. _________, is guilty of a crime charged by the Commonwealth of Pennsylvania.” (No. 2.01 (Crim.) (Pennsylvania Suggested Standard Criminal Jury Instructions, Penn. Bar Inst., 1995; emphasis added.)
Ultimately, what the state and federal constitutions establish — and what respondent fails to acknowledge — are protections for people against governmental overreaching. These rights are intended to protect us against a sovereignty — not against ourselves, “The People.” Thus it is error to call the prosecution “The People.” The practice impermissibly conflates jurors with the state, at the same time as it impermissibly separates jurors from the defendant. This violates state and federal constitutional rights to substantive due process and fair trial by jury.
B. Assuming Arguendo This Court Does Not Find Systemic Error In Referring To The Prosecution As “The People,” The Prosecutor’s Argument In This Case Constituted Misconduct.
Respondent maintains that because it is correct to call the prosecution “The People,” there was no misconduct in the prosecutor’s argument:
“[I] do have a client. He is not sitting or she —. [Para.] My client is the people of the state of California, and I am an advocate for them.” (R.T. p. 35; RB pp. 20-25.)
Respondent asserts that even if the argument was misconduct, appellant waived the issue when trial counsel failed to request an admonition. (RB p. 24.) Both contentions fail.
As appellant sets forth above, it is manifestly incorrect for the prosecution to refer to itself as “The People.” This improperly suggests to the jurors — who are supposed to be impartial fact-finders — that they are in fact aligned with the prosecutor against the defendant.
In this case, the prosecutor’s argument exacerbated that error. The prosecutor argued he represented “the people of the state of California” and that he was “an advocate for them.” Thus, the prosecutor argued he represented a set of people — including the jurors — rather than a governmental body. This was error. It is manifestly unfair for a prosecutor to align himself with individuals, including the jury, against a defendant.
For example, in People v. Fierro, supra, 1 Cal.4th 173, when the prosecutor stated to prospective jurors during voir dire that his “client” was the people of the state, the prosecutor explained “he was thereby obligated to ensure that `people receive fair trials’ and not simply `convict those charged with crimes and throw justice and equity out the door.'” (Id. at p. 207.) While appellant disapproves of the prosecutor’s characterization in Fierro of who was his “client,” the prosecutor in Fierro at least explained to the prospective jurors that it was his duty to be fair to everyone — including the defendant.
Here, the prosecutor did precisely the opposite. The prosecutor excluded appellant from those whose rights it was his duty to protect. The prosecutor told the jury his “client” was not seated at counsel table — thus, it was not appellant. Appellant acknowledges that a prosecutor is not appointed to represent a criminal defendant in an adversarial proceeding. However, this prosecutor’s exclusion of appellant from “the people” whom he represented impermissibly aligned the prosecutor with the jurors to whom he had to prove the case against appellant. [Footnote 9] The prosecutor’s argument was thus misconduct.
Trial counsel properly objected to this argument. (R.T. p. 351.) The trial court overruled the objection. (Ibid.) Respondent maintains that because counsel did not follow up with a request for admonition, appellant has waived this claim. (RB p. 24.) This is absurd. Appellant wonders precisely how respondent envisions the trial court’s admonishment to the jury would go regarding an argument the trial court found proper. Counsel is not required to make futile objections. (People v. Bains (1971) 5 Cal.3d 839, 849, fn. 1; People v. Diaz (1951) 105 Cal.App.2d 690, 696 [when court makes a ruling, it is counsel’s duty to submit to the ruling and not pursue the issue]; Douglas v. Alabama (1965) 380 U.S. 415, 422 [“No legitimate state interest would have been served by requiring repetition of a patently futile objection, . . ., in a situation in which repeated objection might well affront the court or prejudice the jury beyond repair”].)
C. The Error Requires Reversal
1. The structural error
Respondent correctly asserts it is a rare error indeed that affects the framework within which the trial proceeds, rather than simply an error in the trial process itself. (RB p. 22, citing People v. Flood (1998) 18 Cal.4th 470, 493; see also Arizona v. Fulminante (1991) 499 U.S. 279, 310.) Respondent then correctly concludes the prosecutor’s statement in this case was not a structural error.
However, respondent has failed to contend with what appellant asserts: California’s practice of calling the prosecution “The People” is a structural error that requires reversal per se. As appellant set forth in his Opening Brief, this error fits precisely into the category of other — albeit few — structural defects. The practice defies harmless error analysis because it infects the trial insidiously from beginning to end, and there is no way the harm can be evaluated on a case by case basis. Therefore, the defect is structural and requires reversal per se.
2. The trial error
Respondent maintains the prosecutor’s remark was not prejudicial under either the Chapman [Footnote 10] or Watson [Footnote 11] standards. (RB pp. 23-24.) Respondent’s reasoning is flawed.
Respondent maintains that the evidence of appellant’s guilt was so strong the prosecutor’s comments could not have affected the verdict. (RB pp. 23-24.) This is incorrect. As appellant has set forth in his other arguments, the trial was in essence a credibility contest pitting the testimony of the victim and his friends against appellant’s. The jury was not instructed fully regarding self-defense, nor regarding the credibility of the witnesses. The prosecutor’s improper alignment with “the people” against appellant in essence vouched for their testimony, versus appellant’s.
Respondent maintains the trial court’s instructions to the jury “cured any possible prejudice” because the court told the jurors to follow the instructions, rather than argument. (RB pp. 23-24.) To the contrary, the trial court’s instructions exacerbated the prejudice. As appellant set forth in his Opening Brief (and which respondent fails to acknowledge), the trial court instructed the jury over and over again with language indicating the prosecution was “the People.” (See, e.g., “Both the People and a defendant have a right to expect that you will conscientiously consider and weigh the evidence . . . .” (R.T. pp. 293-294; C.T. pp. 66-67); “The People and the defendant are entitled to the individual opinion of each juror.” (R.T. pp. 310-311; C.T. p. 98.); “This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt.” (R.T. pp. 301-302; C.T. p. 80.) Thus, the trial court’s instruction did not cure — and in fact reinforced — the prosecutor’s statement that he represented “The People” against appellant.
REPLY BRIEF FOOTNOTES
Footnote 7: See, e.g., Criminal Jury Instructions — District of Columbia (4th ed., 1996, The Young Lawyers Sect. of the Bar Assn.), sect. 1.03: “This is a criminal case which began when the [grand jury returned an indictment], [United States Attorney] [the Corporation Counsel of the District of Columbia] filed a charging document called an information with the court.”
Footnote 8: For an anecdotal instance, a defendant’s attorney, family members and friends instinctively recoil at the suggestion that “The People” — of which they ostensibly are members — are prosecuting the defendant.
Footnote 9: This confusions indicates precisely what appellant has set forth above: it is error for the prosecution to be called “The People” at all.
Footnote 10: Chapman v. California (1967) 382 U.S. 18, 24.
Footnote 11: People v. Watson (1956) 46 Cal.2d 818, 836.
