Category Archives: Blog

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Use Of The Term “Expert“ In Jury Instruction As Improper Comment On The Evidence

As recently recognized by the United States Supreme Court, the effect of testimony on a jury can be “heightened due to the source of the testimony.” (Buck v. Davis (2/22/2017) ___US___[187 Led 2d 35].) For example, when testimony in a death penalty trial regarding the defendant’s future dangerousness comes from a “medical expert bearing the court’s imprimatur … [r]easonable jurors might well have valued his opinion concerning the central question before them. See Satterwhite v. Texas, 486 U. S. 249, 259, 108 S. Ct. 1792, 100 L. Ed. 2d 284 (1988) (testimony from “a medical doctor specializing in psychiatry” on the question of future dangerousness may have influenced the sentencing jury).” (Ibid.)

Accordingly when the judge uses the term “expert“ in the jury instructions to describe a witness the jury may view this as a judicial comment on the value of the witness which, in turn, may encourage the jurors to give greater weight to the “expert” testimony than it deserves. (See FORECITE, F 101.10 Inst 3 Jurors Not To Take Cue From Judge As Distinct Principle and F 101.10 Inst 4 Jurors Not To Take Cue From Judge Re: Defendant, Counsel.)

This is of particular concern in light of the modern reality that the “expert witness“ is no longer likely to be neutral and objective (the idea once upon a time when expert witnesses were new to the judicial system), but rather will almost certainly be a partisan of the party that hired him or her.

A way of dealing with the danger that jurors may be unduly deferential to “expert” opinion testimony is to preclude both the judge and counsel from using the term “expert.“ Instead, the expert witnesses could be referred to as “opinion witnesses.“ (See e.g., Stephen A. Saltzburg, “Testimony from an Opinion Witness: Avoid Using the Word ‘Expert‘ at Trial,“ Criminal Justice, Summer 1994, p. 35; see also 5th Circuit Pattern Jury Instructions—Criminal 1.17 [Expert Witness] (2001); 7th Circuit Federal Jury Instructions—Criminal 3.07 [Weighing Expert Testimony] & & 1 Comment (1999) [“term ‘expert’ has been omitted to avoid the perception that the court credits the testimony of such a witness“ ]; 11th Circuit Pattern Jury Instructions—Criminal Basic Instructions 7 [Expert Witnesses] (1997) [witness not referred to as expert in body of instruction]; Oklahoma Uniform Jury Instructions—Criminal, OUJI-CR 9-42 [Credibility Of Opinion Witness] (Oklahoma Center for Criminal Justice, 2nd ed. 1996, 1997 Supp.).)

 

In the next blog post sample instructions on this issue will be provided.

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CC 370 (Motive): Will Lay Jurors Understand the Subtle Difference Between Intent – Which Is an Element of the Charge – and Motive – Which Is Not?

The CSC has suggested that lay jurors will readily understand the subtle distinction between intent – which is an element of many crimes – and motive – which is generally not an element

…[A]lthough malice and certain intents and purposes are elements of the crimes, as the court correctly instructed the jury, motive is not an element. ‘Motive, intent, and malice–contrary to appellant’s assumption–are separate and disparate mental states. The words are not synonyms. Their separate definitions were accurate and appropriate.’ [Citation.] Motive describes the reason a person chooses to commit a crime. The reason, however, is different from a required mental state such as intent or malice.” (People v. Hillhouse (2002) 27 Cal. 4th 469, 503-04.)

However, it is problematic to assume that lay jurors will readily understand that the “reason” a person commits an act is different than his intent which is defined as “the state of a person’s mind that directs his or her actions toward a specific object.” (See Dictionary.com.) “We must bear in mind that the audience for these instructions is not a room of law professors deciphering legal abstractions, but a room of lay jurors reading conflicting terms.” (People v. Maurer (1995) 32 Cal. App. 4th 1121, 1127.)

The legal abstraction advanced by the CSC in Hillhouse is simply not something that jurors can be expected to accurately decipher. Often the defendant’s motive and intent are so intertwined that any technical distinction between the two will not likely be seen or understood by the jurors.

For example, although it concluded that the instructions as a whole were not erroneous, People v. Fuentes (2009) 171 Cal.App.4th 1133, 1139-1140 acknowledged that the “commonsense concept of motive” may create confusion:

Any reason for doing something can rightly be called a motive in common language, including—but not limited to—reasons that stand behind other reasons. For example, we could say that when A shot B, A was motivated by a wish to kill B….”

Accordingly, due to the danger of juror confusion, CC 370 should not be given.

Moreover, CC 370 is argumentative: (1) it is “aimed at specific evidence” which is properly addressed in argument not in the instructions (see People v. Harris (1989) 47 CA3d 1047, 1098, fn. 31); and (2) it serves as unnecessary and improper judicial comment on the evidence by addressing matters which the prosecution does not need to prove. (See FORECITE PG III(B); F 362 Note 6; F 372 Note 6; F 416.3 Inst 4.)

However, even if the CC 370 is given it should be modified to assure that the jurors will not read CC 370 as conflicting with the intent element(s) of the charge. In this regard sample instructions such as the following could be requested:

Alternative a:

Modify CC 370, ¶ 1, sentence 1, to provide as follows:

The people are not required to prove that the defendant had a motive to commit (any of the crimes/the crime) charged other than the intent and mental state elements enumerated in Instruction # _______which specifies what the prosecution is required to prove.

Alternative b:

Add to CC 370 when appropriate:

This instruction is not intended to eliminate or reduce the mental state and intent requirements for the charge of ______________ <insert charge with purposeful conduct requirements, e.g., torture [PC ____]; killing for financial gain [PC _____]; torture murder [PC 189]; premeditated and deliberate murder [PC 189], etc.>.

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Lesser Included Offenses: Accusatory Pleading Test – Consideration of Evidence from Probable Cause Showing

People v. Ortega (2015) 240 Cal.App.4th 956, 967 held that: “Due process principles of fairness, and defendant’s right to be prosecuted only on the noticed charges consistent with the probable cause showing supporting the accusatory pleading, compel us to agree that sexual battery is a lesser included offense of forcible sexual penetration where, as here, the preliminary hearing testimony identified defendant’s fingers as the only object supporting the forcible sexual penetration charge.”

In so doing the reviewing court rejected the Attorney General’s claim that the probable cause showing is not relevant under the accusatory pleading test:“The evidence adduced at the preliminary hearing must be considered in applying the accusatory pleading test when the specific conduct supporting a holding order establishes that the charged offense necessarily encompasses a lesser offense.” (Ibid, citing People Marshall, supra, 48 Cal.2d at p. 405.)

“The salient point in Marshall—that the specific language in the information could inform the lesser included offense question because the information provided defendant with notice of the lesser included offense—supports our conclusion that the accusatory pleading cannot be examined in isolation. The due process principle that informed Marshall requires that the facts derived from the preliminary hearing be factored into the accusatory pleading analysis.” [emphasis added] (Ortega, supra at 968.)

The Ortega court also relied on mutual fairness concerns expressed in People v. Birks, supra, 19 Cal.4th 108, 128:

[W]hether sexual battery is a lesser included offense of forcible sexual penetration in a case involving digital penetration should not hinge on whether the prosecutor chooses to mention fingers in the charging document. Here, the prosecutor was bound by the preliminary hearing testimony to prove that defendant digitally penetrated Doe’s vagina. Given that constraint on proof, felony sexual battery was necessarily a lesser included offense of forcible sexual penetration, and it would be unjust to allow the prosecutor, by controlling the language in the charging document, to also control whether the jury considers that lesser offense. [Citation to Birks.]

The Ortega court found prejudicial error under People v. Watson (1956) 46 Cal.2d 818, 836 and reversed the judgement.

CC Revision Note: A cite to Ortega was added to the CC 1045 Bench Notes in August 2016.

https://jcc.legistar.com/View.ashx?M=F&ID=4623226&GUID=641F40EC-97A0-4201-A770-A106865720D8

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Motive Instruction: Clarification Of Problematic Burden Shifting Language

As revised in August 2016, CALCRIM 370 provides as follows:

The People are not required to prove that the defendant had a motive to commit (any of the crimes/the crime) charged. In reaching your verdict you may, however, consider whether the defendant had a motive. Having a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending to show the defendant is not guilty.

This instruction contains two problematic passages which unconstitutionally shift the burden of proof.

First, CALCRIM 370 erroneously implies that absence of motive may only be considered if proven by the defendant. A jury instruction is erroneous if it permits the jurors to conclude that the defendant has the burden of proving all or part of a defense theory which negates an element of the charge. (See Carella v. California (1989) 491 US 263, 265-66; Sandstrom v. Montana (1979) 442 US 510, 521-24.)

Second, CALCRIM 370 employs erroneous burden shifting language by implying a defense obligation to “show the defendant is not guilty.” The defendant has absolutely not burden or obligation to present any “affirmative evidence demonstrating a reasonable doubt …” (People v. Hill (1998) 17 C4th 800, 831.) “[T]he jury may simply not be persuaded by the prosecution’s evidence.” (Ibid.)

A sample instruction intended to correct these defects is the following:

Add at end of CC 370:

However, the defendant has no burden to prove (1) that he did not have a motive or (2) that he is not guilty. If the prosecution has failed to prove every element of the charged crime he is not guilty under the law and you must vote to acquit.

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Improper to Give CC 370 [Motive Not an Element] in Cases Requiring Motive

Conflicting intent instructions—where one instruction requires the prosecution to prove intent while another instruction eliminates that requirement—can remove an element of the charge in violation of the Due Process Clause of the federal constitution. (See People v. Maurer (1995) 32 Cal.App.4th 1121, 1128; see also People v. Lee (1987) 43 Cal.3d 666, 673–674.) This is so even where the court’s instructions on the offense itself correctly explain the required intent, because we have “no way of knowing which of the two irreconcilable instructions the jurors applied in reaching their verdict.” (Francis v. Franklin (1985) 471 U.S. 307, 322 [85 L. Ed. 2d 344, 105 S.Ct. 1965]; see also People v. Gay (2008) 42 Cal.4th 1195, 1225–1226.)

People v. Valenti, 243 Cal. App. 4th 1140, 1164-65, 197 Cal. Rptr. 3d 317, 336-37 (2016) held that CC 1122 and CC 370 are one such pair of conflicting instructions. CC 1122 correctly tells the jury that to convict a defendant of violating PC 647.6, the prosecution must prove the defendant was motivated by an unnatural sexual interest in a particular child or in children generally. (See People v. Hillhouse (2002) 27 Cal.4th 469, 503–504.) However, CC 1122 incorrectly instructs that the prosecution does not have to prove motive. Thus, when motive is an element of the charge, the judge errs by giving an unmodified version of CC 370, which is an optional instruction. ( (People v. Maurer (1995) 32 Cal. App. 4th 1121, 1128; see also People v. Romo (1975) 14 Cal.3d 189, 196 [not error to refuse instruction on motive].)

CALCRIM Revision Note – Effective August 26, 2016 the CALCRIM committee modified the bench notes for CC 1121, CC 1122, CC1125, and CC 1126 to add an admonition to not give CC 370 in such cases. See: here.

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Motive Instruction (CC 370): The Latest Calcrim Revision

Effective August 26, 2016 the CALCRIM committee modified the bench notes for CC 1121, CC 1122, CC1125, and CC 1126 to add an admonition to not give CC 370 in such cases. See: here.

The following post addresses that change.

However, there are several issues and tactics regarding instruction on motive which CALCRIM does NOT address which will be discussed in subsequent posts including the following:

Will Lay Jurors Understand the Subtle Difference Between Intent – Which Is an Element of the Charge – and Motive – Which Is Not?

Does “Tending to Show” language in CC 370 encourage jurors to vote for guilt based on motive alone?

Should Jurors be affirmatively instructed that motive is not alone sufficient to prove guilt?

Should the motive instruction be modified when the defense argues that someone else committed the crime?

Should CC 370 be modified in cases requiring premeditation and deliberation to require consideration of planning and manner evidence?

Does CC 370 employ unconstitutional burden shifting language?

Even when motive is not an element of the charge may a juror vote to acquit based solely on the absence motive?

Does the defense have the right to a pinpoint instruction relating the absence of motive to the prosecution’s burden of proof?

Does CC 370 provide a template for defense pinpoint instructions such as the absence of flight?

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Premeditation and Deliberation Is Not Alone Sufficient to Prove Lying In Wait

In People v. Nelson (2016) 1 Cal.5th 513 the evidence of “a substantial period of watching and waiting” was insufficient, so the finding of lying in wait was set aside (both as a theory of first-degree murder and as a special circumstance).  “The evidence showed, directly or by reasonable inference, that Nelson rode his bicycle to the area near the Target parking lot, where he had reason to believe the victims would be waiting to go to work. He concealed his bicycle and came up behind his victims on foot to take them by surprise. He shot the two victims in quick succession. After ensuring his victims were dead by shooting them a second time, he retrieved his bicycle and left. [¶] There is no evidence, however, that Nelson arrived before the victims or waited in ambush for their arrival. In the absence of such evidence, there is no factual basis for an inference that before approaching the victims, he had concealed his bicycle and waited for a time when they would be vulnerable to surprise attack. The jury was presented with no evidence from which it could have chosen, beyond a reasonable doubt, that scenario over one in which defendant arrived after the victims, dismounted from his bicycle, and attacked them from behind without any distinct period of watchful waiting.” (1 C3d at 551.)

“[T]he fact that there was substantial evidence of premeditation and deliberation does not necessarily mean there was substantial evidence of watching and waiting for an opportune time to act [sufficient to support a finding of lying in wait].  (See People v. Sandoval (2015) 62 Cal.4th 394, 424.)” (1 C3d at 552.)

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Standard of Prejudice: Penalty Phase Error

People v. Grimes (2016)1 Cal.5th 698, 721-23 held that under California law trial court’s erroneous exclusion of evidence is harmless as to penalty unless there is a “reasonable possibility” that the jury would have rendered a different verdict had the erroneously excluded evidence been presented to the jury.  The “reasonable possibility” standard is “the same, in substance and effect” as the Chapman test for federal constitutional error which requires reversal unless the reviewing court can say beyond a reasonable doubt that the error was harmless.

In Grimes, while the CSC “cannot say with certainty whether the evidence would ultimately have cause the jury to render a different verdict,”  by the same token the court cannot conclude that the jury’s verdict was “surely unattributable” to the error in the exclusion of exculpatory evidence from the co-perpetrator’s statement against interest.  Consequently, the CSC concludes that there is a “reasonable possibility” that had the jury heard the excluded evidence a different verdict would have been rendered.

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Death Penalty Mitigation: Fetal Alcohol Evidence (FAE)

In Trevino v. Davis (5th Cir. 2016) 829 F.3d 328 the district court erred by concluding that evidence of Fetal Alcohol Effect (FAE) was “double-edged,” suggesting future dangerousness, so there was no prejudice from trial counsel’s failure to develop it.  According to petitioner’s habeas expert, “his history of FAE clearly had an impact on his cognitive development, academic performance, social functioning, and overall adaptive functioning. These factors, along with his significant history of physical and emotional abuse, physical and emotional neglect, and social deprivation clearly contributed to Mr. Treviño’s ability to make appropriate decisions and choices about his lifestyle, behaviors and actions, his ability to withstand and ignore group influences, and his ability to work through and adapt to frustration and anger. These deficits would not only have impacted any of Mr. Treviño’s decisions to participate in or refrain from any activities that resulted in his capital murder charges, but also likely impacted his ability to understand and make appropriate decisions about the plea offer presented by his counsel.”  Treviño’s failure to express remorse was “the most aggravating factor,” but FAE can produce an “inability to express remorse in a recognizable manner.”

Regarding remorse, see F 763.13.

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Mayberry Defense Applies to Misdemeanor Sexual Battery

People v. Andrews (2015) 234 CA4th 590, 592 considered whether the Mayberry [People v. Mayberry (1975) 15 Cal.3d 143] defense of honest and reasonable belief in consent is applicable to the crime of misdemeanor sexual battery. Andrews concluded that in an appropriate case honest and reasonable belief in the victim’s consent may be a valid defense theory in a sexual battery prosecution.

The crime of misdemeanor sexual battery requires a the touching of “an intimate part of another person … against the will of the person touched … for the specific purpose of  sexual arousal, sexual gratification, or sexual abuse.” (PC 243.4(e).) “A defendant therefore commits a sexual battery if he engages in an intimate, nonconsensual touching.” (People v. Babaali (2009) 171 Cal.App.4th 982, 995–996.) In other words sexual battery is a specific intent crime (People v. Chavez (2000) 84 Cal.App.4th 25, 29) and belief in that the victim consented “is incompatible with the existence of wrongful intent.” (People v. Williams (1992) 4 C4th, 352, 360, fn. omitted.)

Accordingly, the Andrews court held that a mistaken but honest and reasonable belief of the victim’s consent is available to defendants charged with sexual battery where there is substantial evidence to support the defense and it is not inconsistent with the defendant’s theory of the case.(Andrews, 234 CA4th at 602-03.)

In light of Andrews the CALCRIM Committee add the Mayberry defense theory to its sexual battery instructions CC 935 and CC 938 as follows:

[The defendant is not guilty of sexual battery if (he/she) actually and reasonably, even if mistakenly, believed that the other person consented to the touching [and actually and reasonably believed that (he/she) consented throughout the act of touching]. The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the other person consented. If the People have not met this burden, you must find the defendant not guilty.]