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F 8.58a
Homicide
*Modify ¶ 2 and ¶ 3 of CALJIC No. 8.58 to provide as follows [Deleted language is between <<>>]:
¶2 <<It is probable that>> [A] person in sound physical condition injured in the same way would not have died from the injury,
¶3 <<It is probable that>> [The] injury only hastened the death of the injured person, and,
Points and Authorities
Without doubt, the term “probable” implies application of the preponderance of the evidence standard. (2 McCormick, Evidence (4th ed. 1992) chapter 36, p. 439 and fn. 13.) Thus, by using “probable” in instructing the jury on the issue of the proximate cause of death, CJ 8.58 impermissibly reduces the burden of proof which the prosecution must bear. Thus, absent deletion of the phrase “probable,” CJ 8.58 constitutes federal constitutional error. (Sullivan v. Louisiana (93) 508 US 275 [124 LE2d 182, 188-191; 113 SCt 2078] [mis-instruction on the meaning of proof beyond a reasonable doubt is a structural error requiring per se reversal].)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
