Return to CALJIC Part 1-2 – Contents
F 0.25 n1 Pretrial Instructions During Voir Dire: Impact On Jury Instruction Errors At Trial.
While PC 1093 permits the court to give the jury instructions at the beginning of the trial and from time to time during the trial, instructions given to the prospective jurors before trial commenced are “outside of the time frame covered by section 1093.” (People v. Crawford (97) 58 CA4th 815, 823 [68 CR2d 546].) Such instructions are “given not to actual jurors, but to prospective jurors who at the time did not know whether they would ultimately serve in the case. As a result, the members of the panel could well have viewed the court’s remarks as hypothetical and thus have failed to give the instruction the same focused attention they would have had they been impaneled and sworn.” (People v. Elguera (92) 8 CA4th 1214, 1222 [10 CR2d 910]; see also, Crawford, 58 CA4th at 823.)
Accordingly, Crawford held that the giving of the reasonable doubt instruction during voir dire did not cure the prejudice from failing to give the reasonable doubt instruction during trial. (See also, People v. Vann (74) 12 C3d 220, 226-27 [115 CR 352] [omission of reasonable doubt instruction not cured by instruction that inferences from circumstantial evidence must be proved beyond a reasonable doubt]; People v. Elguera, 8 CA4th at 1222-23 [same].)
As observed by the United States Supreme Court in Penry v. Johnson (2001) 532 US 782 [150 LE2d 9; 121 SCt 1910, 1923], “we are skeptical that, by the time their penalty phase deliberations begin, the jurors would have remembered the explanations given during voir dire, much less taken them as a binding statement of the law….the comments of the court and counsel during voir dire were surely a distant and convoluted memory by the time the jurors began their deliberations on Penry’s sentence.” (See also Boyde v. California (90) 494 US 370, 384 [108 LEd2d 316; 110 SCt 1190]; but see People v. Carter (2003) 30 C4th 1166, 1199-1200 [in finding lack of prejudice court relies, in part, on fact that PC 1122 admonition, omitted at trial, was given during voir dire].)
F 0.25 n2 Voir Dire Instructions: Cautionary Instruction Regarding Potential Jurors’ Prejudicial Statements.
Statements made by potential jurors during voir dire may be prejudicial if they impact the jurors who are actually selected to sit on the trial. (See, e.g., Mach v. Stewart (9th Cir. 1998) 137 F3d 630, 633.) Hence, the attorneys and courts should be alert to such potentially prejudicial statements during voir dire and if necessary conduct further voir dire to determine whether the panel has in fact been infected by the prejudicial statements. (Ibid.) Additionally, appropriate limiting and cautionary instructions should be considered at voir dire and later at trial.
F 0.25 n3 Pretrial Admonition: Admonition Not To Converse During Voir Dire.
PC 1122(b) only requires an admonition to the jury not to converse among themselves after the jury is sworn. (People v. Horton (95) 11 C4th 1068 [47 CR2d 516].) However, giving the admonition during voir dire constitutes a sound judicial practice. (Ibid.)
F 0.25 n4 Voir Dire: Identification Of Parties And Crimes Charged When Victim’s Identity Is Withheld (PC 293.5).
(See FORECITE F 1.12a.)
F 0.25 n5 Instructional Issues At Voir Dire: Duty Of DA To Disclose Theory Of Culpability.
California Rules of Court Rule 4.200(a)(3) requires the prosecution to disclose its “theory of culpability” prior to voir dire. The content of any instructions and questions at voir dire may depend on the DA’s theory of culpability.
See Rule 4.200 [Pre–voir dire conference in criminal cases] and Rule 4.201 [voir dire in criminal cases].
F 0.25 n6 Judge Conducted Voir Dire In Capital Cases.
RESEARCH NOTE: See “Capital Cases: The Trouble With Judge-Conducted Voir Dire And What You Can Do About It” by Lois Heaney, FORUM, July 1998.
F 0.25 n7 Voir Dire: Duty Of Court To Question Regarding Racial Bias.
In cases where racial issues are likely to be inextricably bound up with the conduct of the trial (e.g., black defendant, white victim) the court should conduct voir dire on the issue of racial bias. Such cases “are the type of special circumstance in which ‘an impermissible threat to the fair trial guaranteed by due process is posed by a trial court’s refusal to question prospective jurors specifically about racial prejudice during voir dire.’ [Citation.]” (People v. Wilborn (99) 70 CA4th 339, 347 [82 CR2d 583].)
F 0.25 n8 Voir Dire: Jury Selection Resources.
The ALI-ABA Criminal Law & Litigation Library contains the following references regarding jury research:
Jury Research: A Review And Bibliography, Walter F. Abbott, Flora Hall and Elizabeth Linville (1993) ALI-ABA Publications (Item No. B638.) This comprehensive book is a valuable resource that helps trial attorneys and social-behavioral scientists locate jury research easily and quickly. It focuses on the application of behavioral sciences to the analysis of juries as a social group functioning within an adversarial framework.
Divided into two parts, Part I is an insightful, concise overview of jury research, and Part II is a convenient annotated bibliography of jury research literature with approximately 1,400 entries.
Part I provides an overview of jury research on such topics as understanding how juries behave and how attorneys need to anticipate such behavior, the dynamics of jury behavior in an adversarial system, the effects of different forms of exposures on juror perception, the dynamics of juries considered as a group in deliberations, and more.
Part II brings together and codifies the research produced by psychologists, sociologists, political scientists, and legal researchers into a framework useful for the specialized needs of social scientists and practitioners. It is an efficient and convenient compilation of the research information listed on main on-line computer-retrieval systems and in earlier jury bibliographies.
Analytic Juror Rater, Walter F. Abbott (1987) ALI-ABA Publications (Item No. B588.) The purpose of Analytic Juror Rater is to aid the lawyer in selecting jurors with the limited data available from official and other sources. Going beyond such factors as age, sex, race, and occupation, the book uses national survey data to analyze and evaluate persons in a variety of status categories and reports these values in the form of “profilers.” The profilers are designed to estimate four types of values that have relevance for different kinds of cases — authoritarianism, economic orthodoxy (or conservatism), cosmopolitanism, and racial tolerance.
The profilers are meant to be used to rate all jurors in the panel before voir dire and to challenge jurors in voir dire on the basis of their rankings in the panel. For example: It is generally believed that defense counsel in criminal cases needs to have jurors who are not authoritarian or who are not predisposed toward retributive punishment. The nonauthoritarian profiler is designed to assign a high score to persons who are nonauthoritarian and a low score to authoritarians; the book describes, through a hypothetical case, the procedures to be used in arriving at an individual’s score in the value of authoritarianism.
Chapters describe the nature of profiling, the value scales, the characteristics included in the profilers, the minimum number of characteristics considered necessary for profiling, and the method of applying the profilers to a case.
These books are available from The American Law Institute (800-CLE-NEWS (ext. 7000); FAX (215) 243-1664; or visit the ALI website at http://www.ali.org/.
F 0.25 n9 Voir Dire/Jury Not To Consider Penalty: Whether Jury Should Be Informed That Non-Capital Special Circumstance Case Does Not Involve The Death Penalty.
In a non-capital murder trial the jury should not be concerned about the defendant’s sentence or punishment. (See, e.g., CJ 17.24 [jury not to consider penalty]; see also Shannon v. U.S. (94) 512 US 573 [129 LEd2d 459; 114 SCt 2419].)
However, in murder cases, especially when special circumstances are alleged, some jurors may wonder whether the case involves the death penalty. This issue often becomes a concern at voir dire where the jurors may raise the issue of penalty. Normally, the prosecution and the court will want to inform the jury that the case does not involve the death penalty. From the prosecution’s standpoint, juror knowledge that the case does not involve the death penalty may make a conviction easier to obtain. From the court’s point of view, informing the jury that the case does not involve the death penalty will reduce the number of jurors seeking dismissal from jury service and increase the number of potential jurors available to try the case. (See, e.g., State v. Townsend (WA 1999) 979 P2d 453)
However, both of these approaches violate the well settled rule that jurors should not consider punishment or sentence. (See Shannon v. U.S, supra; see also People v. Baca (96) 48 CA4th 1703 [56 CR2d 445]; People v. Nichols (97) 54 CA4th 21 [62 CR2d 433].)
Accordingly, defense counsel may wish to oppose any general instruction of the jurors that the case does not involve the death penalty.
Alternatively, if the jury will be informed that the case does not involve the death penalty, the defense should have the right to inform the jury that it does involve the penalty of life without possibility of parole (in the case of a special circumstance situation). (See Simmons v. South Carolina (94) 512 US 154 [129 LEd2d 133; 114 SCt 2187] [state, which has raised specter of defendant’s future dangerousness, violated defendant’s due process rights by refusing to instruct jury that, as alternative to death sentence, sentence of life imprisonment carried with it no possibility of parole]; People v. Smithey (99) 20 C4th 936, 1008 [86 CR2d 243] [“[T]he prosecutor in the present case urged the jury to return a verdict of death, in part because of the potential that defendant would be dangerous in prison or to society if he escaped. Therefore, under Simmons, defendant was entitled to advise the jury that he was ineligible for parole”].) Moreover, a one-sided admonition that “this is not a death case” would violate the well-settled rule and due process principle that instructions must be balanced and not favor one party over the other. (See FORECITE PG VII(C)(21).)
PRACTICE NOTE: To avoid broaching the subject of penalty in front of all the jurors during voir dire, a pre-voir dire questionnaire may be utilized. Any jurors who question whether the case involves the death penalty can then be voir dired in chambers to avoid tainting the rest of the jurors.
[See Motion Bank # M-3008 for a sample motion and points and authorities which were successfully used in a non-capital special circumstance trial.]
F 0.25 n10 Voir Dire: Web Site For Jurors.
The Administrative Office of the Courts has announced a web site designed to help jurors understand the basics of jury service. http://www.courtinfo.ca.gov/jury answers the most frequently asked questions by potential jurors and their employers. It also provides a means for the potential juror to ask questions on-line and to express their views about jury service. In addition, the site provides basic information about the trial process, the role of the jurors and their employers and includes a glossary of legal terms.
To the extent that this web site contains information that might be relevant to a juror’s consideration of the case, it may be worth reviewing as a possible subject of voir dire inquiry.
Also, if a particular term was not defined in the instructions during trial, it may be possible to rely on the definitions included on the AOC’s jury service web site. (See FORECITE CHK III(C).)
F 0.25 n11 Voir Dire Instructions: Requirement That Jurors Be Truthful In Response To Voir Dire Inquiry.
By encouraging prospective jurors to lie regarding their racial bias, the trial court committed structural error — “which inevitably skewed the integrity of the entire voir dire process and adversely affected the manner in which the jurors would evaluate the evidence….” (People v. Mello (2002) 97 CA4th 511, 519 [118 CR2d 523].) Such an error is a “defect affecting the framework within which the trial proceeds” and is not subject to harmless error analysis. (Ibid; see also Arizona v. Fulminante (91) 499 US 279, 309-310 [113 LEd2d 3002; 111 SCt 1246]; People v. Abbaszadeh (2003) 106 CA4th 642 [130 CR2d 873] [Mello error was reversible despite lack of objection]; People v. Flood (98) 18 C4th 470, 500 [76 CR2d 180]; People v. Sarazzawski (45) 27 C2d 7, 18-19 [161 P2d 934].)
F 0.25 n12 Inadequate Voir Dire Not Cured By Peremptory Challenges.
“When voir dire is inadequate, the defense is denied information upon which to intelligently exercise both its challenges for cause and its peremptory challenges. Because the exercise of peremptory challenges cannot remedy the harm caused by inadequate voir dire, we have never required, and do not now require, that counsel use all peremptory challenges to preserve for appeal issues regarding the adequacy of voir dire.” (People v. Bolden (2002) 29 C4th 515, 537-38 [127 CR2d 802].)
F 0.25 n13 Opening Argument Before Voir Dire
See California Rules of Court, Rule 2.1034.
F 0.25a Cautionary Instruction Regarding Juror Anonymity Procedures.
[See FORECITE F 0.50b.]
F 0.25b Voir Dire Instructions: Jurors Must Agree To Set Aside Instructions In Previous Civil Cases.
[To be given if any juror acknowledges having been impaneled on a civil trial]:
May I see the hands of those jurors who have served on civil cases, but who have never served on a criminal case? (Response.) You must understand that there are substantial differences in the rules applicable to the trial of criminal cases from those applicable to the trial of civil cases. This is particularly true respecting the burden of proof that is placed on the People. In a civil case we say that the plaintiff must prove (his) (her) case by a preponderance of the evidence. In a criminal case, the defendant is presumed to be innocent, and before (he)(she) may be found guilty, the People must prove (his)(her) guilt beyond a reasonable doubt. If the jury has a reasonable doubt, the defendant must be acquitted. Will each of you be able to set aside the instructions that you received in your previous cases and try this case on the instructions given by me in this case?
Points and Authorities
The above instruction is from Standard 4.30(b)(14) [ Examination of prospective jurors in criminal cases] (amended effective January 1, 2007), California Standards of Judicial Administration.
Proof beyond a reasonable doubt is a “much higher standard” than preponderance of the evidence. (People v. Allen (93) 20 CA4th 846, 857 [25 CR2d 26]; see also Brown v. Bowen (7th Cir. 1988) 847 F2d 342, 345-46 [“All burdens of persuasion deal with probabilities. The preponderance standard is a more-likely-than-not rule, under which the trier of fact rules for the plaintiff if it thinks the chance greater than 0.5 that the plaintiff is in the right. The reasonable doubt standard is much higher, perhaps 0.9 or better”]; Binion v. Chater (7th Cir. 1997) 108 F3d 780, 783 [same]; Lane v. Sullivan (8th Cir. 1990) 900 F2d 1247, 1252 [“much higher”]; U.S. v. Clawson (D.C. Ore. 1994) 842 FSupp 428, 430; U.S. ex rel. Sumner v. Washington (93) 840 FSupp 562, 573 [“substantially more demanding legal standard”].) In fact, the reasonable doubt standard is “significantly higher than the ‘clear and convincing’ standard.” (State v. Terrazas (AZ 1997) 944 P2d 1194, 1198 [187 Ariz. 387]; see also State v. Hughes (AZ 1967) 426 P2d 386, 390-91 [102 Ariz. 118]; State v. Kennedy (MN 1998) 585 NW2d 385, 389; Yellow Cab Co v. Sanders (AR 1971) 465 SW2d 326, 334 [250 Ark. 418].) And, the clear and convincing standard is itself “much higher” than the preponderance standard. (See Beardshall v. Minuteman Press International, Inc. (3rd Cir. 1981) 664 F2d 23, 25 [“much higher”]; Lostutter v. Estate Of Larkin (KS 1984) 679 P2d 181, 188 [“much higher”]; State ex rel. R.N.J. (UT 1995) 908 P2d 345, 351 [“significantly higher”].)
PRACTICE NOTE: This voir dire instruction may be a useful basis for arguing that a comparison of standards instruction should be given to the jury at trial. (See FORECITE F 2.90e.)