Return to CALJIC Part 5-8 – Contents
F 8.75 n1 Partial Verdict: Discretion As To When To Instruct (PC 187).
The trial court has the discretion to give CJ 8.75 at the outset of deliberations, when deadlock occurs or not at all. (See People v. Craig DEPUBLISHED (95) 38 CA4th 1018 [45 CR2d 777]; see also, People v. Jackson (89) 49 C3d 1170, 1197 [264 CR 852].) However, a jury which is not given an acquittal-first instruction in advance and which deadlocks on the greater offense may assume it is free to reach a verdict on the lesser. (Craig, 38 CA4th at 1035-36.) Therefore, counsel may wish to request that the instruction either be given at the outset or later depending upon counsel’s evaluation of the impact of the instruction.
[Research Note: See FORECITE BIBLIO 8.75]
F 8.75 n2 Partial Verdict: CJ 8.75 As Overly Confusing (PC 187).
It has been successfully argued at trial that CJ 8.75 is overly confusing and another simpler instruction, such as CJ 17.10, should be given instead.
[Research Note: See FORECITE BIBLIO 8.75]
F 8.75 n3 Partial Verdict: Verdict On Lesser Included Offense (PC 187).
When a jury is unable to unanimously agree as to whether or not the defendant has been proven guilty of a crime within the accusatory pleading, and the prosecution is willing to forego its right to a verdict or mistrial on that charge, the court may receive a verdict on a lesser included offense to that crime. (People v. Zapata (92) 9 CA4th 527, 534 [12 CR2d 118].)
[Research Note: See FORECITE BIBLIO 8.75]
F 8.75 n4 Partial Verdict: Dismissal Of Greater Offense In Response To Deadlock (PC 187).
The question of whether the court may withdraw from a deadlocked jury consideration of the greater offense in order to obtain a verdict on a lesser offense was discussed in People v. Bordeaux (90) 224 CA3d 573, 581-82 [273 CR 717]. The majority indicated that the judge is permitted to effectively dismiss the greater offense pursuant to PC 1385. (Bordeaux 224 CA3d at 581.) However, the wisdom of the majority’s suggestion is questionable as demonstrated by the dissent of Justice Wiener who concluded that such a procedure is “contrary to both the people’s and defendant’s respective rights to a jury verdict free from judicial interference.” (Bordeaux 224 CA3d at 584-86.)
[Research Note: See FORECITE BIBLIO 8.75]
F 8.75 n5 Partial Verdict: Whether CJ 8.75 Violates Due Process By Undermining CJ 8.71 And PC 1097 (PC 187).
(See People v. Johnson (92) 3 C4th 1183, 1236-1238 [14 CR2d 702].)
[See also FORECITE F 8.75 n6.]
CAVEAT: Counsel should consider whether this issue should be preserved in state court for federal habeas or certiorari. (See generally, FORECITE PG VII.)
[Research Note: See FORECITE BIBLIO 8.75]
F 8.75 n6 Constitutional Challenge To Acquittal First Rule (PC 187).
People v. Fields (96) 13 C4th 289, 310-11 [52 CR2d 282] reaffirmed the rule that the jury must unanimously agree to acquit the defendant of the greater charge before returning a verdict as to the lesser charge. However, this rule may implicate the due process and trial by jury clauses of the federal constitution (6th and 14th Amendments) by precluding a fair and reliable jury determination of the elements of the charge, and by giving an unfair advantage to the prosecution. “Members of the jury who have substantial doubts about an element of the greater offense, but believe the defendant guilty of the lesser offense, may very well choose to vote for conviction of the greater rather than to hold out until a mistrial is declared, leaving the defendant without a conviction of any charge.” (Jones v. U.S. (88) 544 A2d 1250, 1253; see also U.S. v. Tsanas (2nd Cir. 1978) 572 F2d 340, 346 [“if the jury is heavily for conviction on the greater offense, dissenters favoring the lesser may throw in the sponge rather than cause a mistrial that would leave the defendant with no conviction at all, although the jury might have reached sincere and unanimous agreement with respect to the lesser charge”]; Cantrell v. State (96) 469 SE2d 660 [266 Ga. 700].) As the Georgia Supreme Court recognized in Cantrell, this “gives the prosecution an unfair advantage.” (Cantrell 469 SE2d at 662.) Accordingly, the “acquittal-first” instruction violates the settled principle that “[t]here should be absolute impartiality as between the People and the defendant in the matter of instructions.” (People v. Moore (54) 43 C2d 517, 526-27 [275 P2d 485];Reagan v. U.S. (1895) 157 US 301, 310 [39 LEd 709; 15 SCt 610].) Furthermore, when the prosecution is given an unfair advantage over the defendant the due process clause of the federal constitution is implicated. (See Wardius v. Oregon (73) 412 US 470, 473-74 [37 LEd2d 82; 93 SCt 2208]; see also Izazaga v. Superior Court (91) 54 C3d 356, 372-77 [285 CR 231].)
The acquittal-first rule has been criticized and abandoned by the Arizona Supreme Court in State v. LeBlanc (Ariz. 1996) 924 P2d 441 [186 Ariz. 437]. The court concluded that “requiring a jury to do no more than use reasonable efforts to reach a verdict on the charged offense is the better practice and more fully serves the interest of justice and the parties.” Hence, the court concluded that the jury should be instructed that it may deliberate on and return a lesser offense “if it either (1) finds the defendant not guilty on the greater charge, or (2) after reasonable efforts cannot agree whether to acquit or convict on that charge.” (LeBlanc, 924 P2d at 442.) Although it held that the acquittal-first doctrine did not violate the state or federal constitution (Id. at 443-44), the court made clear its view that the instruction improperly encouraged “false unanimity” and “coerced verdicts.” This comports with the view that the acquittal-first rule violates due process because it gives the prosecution an unfair advantage. Moreover, LeBlanc did not consider whether the “acquittal-first” instruction would violate the heightened reliability required by the 8th Amendment in capital cases. The LeBlanc court also concluded that the “reasonable efforts” instruction furthers both the prosecution’s interest in the full and fair adjudication of the charged offenses and the public’s interest in the effective use of jury resources. “The ‘reasonable efforts’ approach diminishes the likelihood of a hung jury, and the significant costs of retrial, by providing options that enable the fact finder to better gauge the fit between the state’s proof and the offenses being considered” citing to State v. Labanowski (91) 816 P2d 26, 34 [117 Wash.2d 405]. Finally, LeBlanc criticized the acquittal-first rule as overly restrictive of the jury’s discretion. “For too long, we have treated jurors like untrustworthy children instead of responsible adults, insulting their individual and collective intelligence by attempting to micromanage their discussions and deliberations. [The “acquittal-first” instruction] is an example of this unwarranted intrusion and, as noted previously, is fraught with dangers of its own. As with other recently abandoned traditions surrounding juries, there is nothing particularly sacred about the acquittal-first procedure. What we do today is neither radical nor novel …” (LeBlanc, 924 P2d at 443.)
People v. Dennis (98) 17 C4th 468, 535-37 [71 CR2d 680] held that CJ 8.75 and CJ 17.10 do not improperly tilt or channel the deliberations in favor of the greater offense because they permit consideration of the lesser offense. However, Dennis did not address the argument above that the acquittal-first instruction improperly encourages jurors to reach a verdict as to the greater offense in order to avoid the risk of a total mistrial. Cases are not authority for issues not considered therein. (People v. Dillon (83) 34 C3d 441 [194 CR 390].)
CAVEAT: In deciding whether to make this argument, counsel should consider the relative merits of the acquittal-first instruction. The acquittal-first instruction offers advantages to some defendants. First, abandoning the acquittal-first rule would seem to encourage jury compromise as a means of avoiding hard decisions or avoiding a deadlock. (See generally U.S. v. Tsanas (2nd Cir. 1978) 572 F2d 340, 346 [discussing advantages and disadvantages of acquital first vs. non-acquittal first and concluding choice should be with defendant]; see also FORECITE Practice Guide PG IX(K).) Second, in many cases it is entirely possible that in the process of hard deliberation to the end over the charged offense, the jury may conclude that not only does the evidence not support the charged offense, but by the same conclusion reached in those deliberations, it also doesn’t support the lesser. Third, while some defendants like a default to a lesser-included offense, some defendants are truly seeking acquittal and don’t want the lesser, such as the defendant who is forced into having the jury instructed on the lesser against their wishes per People v. Barton (95) 12 C4th 186 [47 CR2d 569].
[Additional briefing upon this issue is available to FORECITE subscribers. Ask for Brief Bank # B-558.]
[Research Note: See FORECITE BIBLIO 8.75]
RESEARCH NOTE: See Annotation, When Should Jury’s Deliberation Proceed From Charged Offense To Lesser-Included Offense, 26 ALR5th 603, and Later Case Service.
F 8.75 n7 Partial Verdict: Order of Deliberation May Influence Verdict (PC 187).
The following quotation shows how an instruction which requires consideration of the charges seriatim may be prejudicial: “Considering the instructions as a whole, we note that the murder instruction precedes the two voluntary manslaughter instructions. This has significance because just as a supplemental instruction may take on special prominence in the jury’s mind, (citation to Bollenbach v. U.S. (46) 326 US 607 [90 LEd 350; 66 SCt 402]) so the murder instruction stands at the top of the jury instruction check-list. Jurors are therefore encouraged by the structure of the instruction to answer its requirements first and then move on only if those requirements cannot be met.” (Falconer v. Lane (7th Cir. 1990) 905 F2d 1121, 1136.)
[Research Note: See FORECITE BIBLIO 8.75]
F 8.75 n8 Specification Of Degree Of Murder On Verdict Form (PC 187).
(See FORECITE F 8.74 n2.)
F 8.75a
Return Of Partial Verdict: Requirement That Jury Consider Lesser Offenses
(PC 187)
*To be added after 2nd sentence of 3rd ¶ of CJ 8.75 (1989 Revision):
You should consider the lesser offenses before reaching a verdict upon the greater.
Points and Authorities
In People v. Kurtzman (88) 46 C3d 322, 329-31 [250 CR 244], the Supreme Court suggested that the then existing CJ 8.75 could improperly mislead the jurors into concluding that they must resolve the greater offense before considering the lesser offenses. In response to Kurtzman, the 1989 revision of CJ 8.75 modified the prior instruction and included the following language regarding consideration of lesser offenses:
“Thus you are to determine whether the defendant is guilty or not guilty of murder in the first degree or of any lesser crime thereto. In doing so, you have discretion to choose the order in which you evaluate each crime and consider the evidence pertaining to it. You may find it to be productive to consider and reach tentative conclusions on all charged and lesser crimes before reaching any final verdict[s].”
While this instruction avoids the vice of its predecessor by informing the jurors that they “may” consider the lesser offenses before reaching a verdict on the greater, it is questionable whether consideration of the lesser offenses is a matter of discretion for the jury. The jury’s consideration of lesser offenses is an essential component of the defendant’s 14th Amendment federal constitutional right to due process and a fair trial. (See FORECITE PG VII(C)(13); but see People v. Berryman (93) 6 C4th 1048, 1077 fn 7 [25 CR2d 867].) Moreover, consideration of the lesser offenses is an important factor in promoting the reliability of the jury’s verdict. (See People v. Toro (89) 47 C3d 966, 974-75 [254 CR 811].)
These important principles are compromised if the jury does not consider the lesser offenses. Therefore, the jury should not be given the discretion to ignore the lesser offenses as suggested by CJ 8.75. But see People v. Mickey (91) 54 C3d 612, 673, fn 10 [286 CR 801], concluding that CJ 8.75 would be understood by the jurors to govern how the panel was to return its verdicts and not affect how it was to deliberate.
NOTES
[See Brief Bank # B-794 and ask for Brief Bank # B-646 for additional briefing on this issue.]
Requirement That Jury Consider Lesser Offenses: Issue Alert. Despite the modification of CJ 8.75 in response to People v. Kurtzman (88) 46 C3d 322, 329-31 [250 CR 244], there continues to be a propensity on the part of some judges to erroneously suggest to the jury that the lesser offenses may not be considered until the greater offenses are resolved. (FORECITE subscriber Jim Fahey reports that this has occurred in three different cases over the past 1 1/2 years in cases he is handling on appeal.) Accordingly, caution should be exercised at trial to assure that the jury is not misled on this point and appellate records should be closely reviewed to assure that any elaboration of these instructions is accurate.
RESEARCH NOTE: See Annotation, When should jury’s deliberation proceed from charged offense to lesser-included offense, 26 ALR5th 603 and Later Case Service.
F 8.75b
Jury Deadlock:
Jurors Not To Surrender Honest Belief For Purpose Of Returning Verdict
(PC 187)
(See FORECITE F 17.55a.)
