PG VII(I)(b) Grounds For All CasesBCapital and Non-Capital
| TABLE OF CONTENTS |
| CG 2 |
Burden Of Proof |
| CG 2.1 |
Burden Of Proof: Failure To Adequately Define |
| CG 2.2 |
Burden Of Proof: Elements And Essential Facts |
| CG 2.3 |
Prosecution’s Burden Of Proof: Irrational Permissive Inference |
| CG 2.4 |
Instructions Which Improperly Shift Burden Of Proof |
| CG 2.5 |
Lightening, Lessening Or Diminishing The Prosecution’s Burden Of Proof |
| CG 2.6 |
Lack Of Evidence May Result In Reasonable Doubt |
| CG 2.7 |
Guilt By Association |
| CG 2.8 |
[Reserved] |
| CG 2.9 |
Insufficient Evidence On Appeal |
| CG 2.10 |
Multiple Defendants: Separate Consideration
|
Return to Constitutional Grounds Table of Contents.
CG 2 Burden Of Proof.
CG 2.1 Burden Of Proof: Failure To Adequately Define.
CAVEAT: To properly preserve a federal constitutional claim, the defendant must explain how the constitutional provision is violated under the circumstances of the case. Therefore, the issues, language and authorities included in FORECITE’s Constitutional Grounds are not a substitute for individual consideration and presentation of each constitutional claim on a case-by-case basis. Counsel should also independently consider and research whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.
(See FORECITE CG Table of Contents [PG VII(I)(a)] for a partial list of other potential constitutional grounds.)
*Insert bold text into Points and Authorities:
This request is based, inter alia, on the Due Process, Trial By Jury, Confrontation, Compulsory Process and Right to Counsel Clauses of the California Constitution (Art I, §§7, 15 and 16) and the federal constitution (5th, 6th and 14th Amendments) as applied to California through the Incorporation Doctrine. (Duncan v. Louisiana (1968) 391 US 145 [20 LEd2d 491; 88 SCt 1444]; see also Tennessee v. Lane (2004) 541 US 509, 562 [158 LEd2d 820; 124 SCt 1978].)
Unless this instructional request is granted the instructions will abridge the defendant’s rights under the above constitutional provisions by violating by eliminating, shifting or lessening the prosecution’s burden of proof under the presumption of innocence in violation of one or more following constitutional principles:
(1) Any person accused of a crime is presumed innocent unless and until the jury finds that every essential fact necessary to prove the charged crime and every element of the crime has been proved by the prosecution by a reasonable doubt. (Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348]; U.S. v. Gaudin (1995) 515 US 506 [132 LEd2d 444; 115 SCt 2310]; Sullivan v. Louisiana (1993) 508 US 275, 278-81 [113 SCt 2078; 124 LEd2d 182]; Carella v. California (1989) 491 US 263, 265-66 [105 LEd2d 218; 109 SCt 2419]; Sandstrom v. Montana (1979) 442 US 510 [61 LEd2d 39; 99 SCt 2450]; In re Winship (1970) 397 US 358 [25 LEd2d 368; 90 SCt 1068]; U.S. v. Voss (8th Cir. 1986) 787 F2d 393; People v. Hill (1998) 17 C4th 800; People v. Figueroa (1986) 41 C3d 714.)
(2) The defendant has no duty to present any evidence, to prove any fact or to establish anything at all. (United States v. Blankenship (11th Cir. 2004) 382 F3d 1110, 1127; Mahorney v. Wallman (10th Cir. 1990) 917 F2d 469, 472.)
(3) The presumption of innocence is alone sufficient to acquit the defendant and that a reasonable doubt as to guilt may be based on a lack of evidence or a conflict in the evidence. (People v. Hill (1998) 17 C4th 800; see also Taylor v. Kentucky (1978) 436 US 478 [56 LEd2d 468; 98 SCt 1930]; United States v. Hollister (8th Cir. 1984) 746 F2d 420, 424.)
(4) The jury instructions must not lessen the prosecution’s burden of proof as to any essential fact or element of the charge. (See Carella v. California (1989) 491 US 263, 265-66 [105 LEd2d 218; 109 SCt 2419]; Francis v. Franklin (1985) 471 US 307 [85 LEd2d 344; 105 SCt 1965]; County Court of Ulster County v. Allen (1979) 442 US 140, 157 [60 LEd2d 777; 99 SCt 2213]; see also cases cited above.)
(5) Jury instructions must not shift the burden of proof so as to imply an obligation on the part of the defendant to prove or show any matter by testifying. (Griffin v. United States (1991) 502 US 46, 59 [116 LEd2d 371; 112 SCt 466]; Doyle v. Ohio (1976) 426 US 610 [49 LEd2d 91; 96 SCt 2240]; U.S. v. Hubbell (2000) 530 US 27 [120 SCt 2037, 2044; 147 LEd2d 24].)
(6) Instructions on the presumption of innocence and the prosecution’s burden of proof must not be conflicting or contradictory. (Francis v. Franklin (1985) 471 US 307 [85 LEd2d 344; 105 SCt 1965]; Baldwin v. Blackburn (5th Cir. 1981) 653 F2d 942, 949; People v. Noble (2002) 100 CA4th 184, 191; People v. Elguera (1992) 8 CA4th 1214, 1222; People v. Valenzuela (1977) 76 CA3d 218, 222.)
[See also FORECITE CG 7.2.1.]
This request is also based on the Fourteenth Amendment’s Due Process Clause which is violated by:
(1) The arbitrary denial of a state created right. (Hicks v. Oklahoma (1980) 447 US 343 [65 LEd2d 175; 100 SCt 2227].) [See also FORECITE CG 6.3.]
(2) Multiple errors of state law which cumulatively render the trial unfair. (Greer v. Miller (1987) 483 US 756, 765 [107 SCt 3092; 97 LEd2d 618]; Taylor v. Kentucky (1978) 436 US 478, 488 [98 SCt 1930; 56 LEd2d 468]; Mak v. Blodgett (9th Cir. 1992) 970 F2d 614, 622; People v. Hill (1998) 17 C4th 800, 844-45.) [See also FORECITE CG 6.4.]
Furthermore, because this instruction request is necessary to assure the reliability of the jury’s disposition of this case, it is required by the above provisions of the federal constitution. (See generally Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354]; White v. Illinois (1992) 502 US 346, 363-64 [112 SCt 736; 116 LEd2d 848]; Donnelly v. DeChristoforo (1974) 416 US 637, 646 [94 SCt 1868; 40 LEd2d 431]; Thompson v. City of Louisville (1960) 362 US 199, 204 [80 SCt 624; 4 LEd2d 654].) [See also FORECITE CG 1.14.]
If this instruction request is not granted there is a reasonable likelihood that the jury will apply the instructions in a way that will prejudicially violate the defendant’s federal constitutional rights. (Estelle v. McGuire (1991) 502 US 62 [116 LEd2d 385; 112 SCt 475]; McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 839.)
ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases additional federal constitutional claims will apply, above and beyond the claims discussed above. (Insert appropriate grounds into Points and Authorities including, but not limited to, those applicable from FORECITE [(PG VII(I)(c)] [Constitutional Grounds: Death Penalty].)
CG 2.2 Burden Of Proof: Elements And Essential Facts.
CAVEAT: To properly preserve a federal constitutional claim, the defendant must explain how the constitutional provision is violated under the circumstances of the case. Therefore, the issues, language and authorities included in FORECITE’s Constitutional Grounds are not a substitute for individual consideration and presentation of each constitutional claim on a case-by-case basis. Counsel should also independently consider and research whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.
(See FORECITE CG Table of Contents [PG VII(I)(a)] for a partial list of other potential constitutional grounds.)
*Insert bold text into Points and Authorities:
This request is based, inter alia, on the Due Process, Trial By Jury, Confrontation, Compulsory Process and Right to Counsel Clauses of the California Constitution (Art I, §§7, 15 and 16) and the federal constitution (5th, 6th and 14th Amendments), as applied to California through the Incorporation Doctrine. (Duncan v. Louisiana (1968) 391 US 145 [20 LEd2d 491; 88 SCt 1444]; see also Tennessee v. Lane (2004) 541 US 509, 562 [158 LEd2d 820; 124 SCt 1978].)
Unless this instructional request is granted, the instructions will abridge the defendant’s rights under the above constitutional provisions by violating by eliminating, shifting or lessening the prosecution’s burden of proof under the presumption of innocence in violation of one or more following constitutional principles:
(1) Any person accused of a crime is presumed innocent unless and until the jury finds that every essential fact necessary to prove the charged crime and every element of the crime has been proved by the prosecution beyond a reasonable doubt. (Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348]; U.S. v. Gaudin (1995) 515 US 506 [132 LEd2d 444; 115 SCt 2310]; Sullivan v. Louisiana (1993) 508 US 275, 278-81 [113 SCt 2078; 124 LEd2d 182]; Carella v. California (1989) 491 US 263, 265-66 [105 LEd2d 218; 109 SCt 2419]; Sandstrom v. Montana (1979) 442 US 510 [61 LEd2d 39; 99 SCt 2450]; In re Winship (1970) 397 US 358 [25 LEd2d 368; 90 SCt 1068]; U.S. v. Voss (8th Cir. 1986) 787 F2d 393; People v. Hill (1998) 17 C4th 800; People v. Figueroa (1986) 41 C3d 714.)
(2) The jury instructions must assure the jurors understand that the defendant has no duty to present any evidence, to prove any fact or to establish anything at all. (United States v. Blankenship (11th Cir. 2004) 382 F3d 1110, 1127; Mahorney v. Wallman (10th Cir. 1990) 917 F2d 469, 472.)
The jurors must also understand that the presumption of innocence alone is sufficient and that a reasonable doubt as to guilt may be based on a lack of evidence or a conflict in the evidence. (People v. Hill (1998) 17 C4th 800, 831; see also Taylor v. Kentucky (1978) 436 US 478 [56 LEd2d 468; 98 SCt 1930]; United States v. Hollister (8th Cir. 1984) 746 F2d 420, 424.)
(3) The jury instructions must not lessen the prosecution’s burden of proof as to any essential fact or element of the charge. (See Carella v. California (1989) 491 US 263, 265-66 [105 LEd2d 218; 109 SCt 2419]; Francis v. Franklin (1985) 471 US 307 [85 LEd2d 344; 105 SCt 1965]; County Court of Ulster County v. Allen (1979) 442 US 140, 157 [60 LEd2d 777; 99 SCt 2213]; see also cases cited above.)
(4) Jury instructions must not shift the burden of proof so as to imply an obligation on the part of the defendant to prove or show any matter by testifying. (Griffin v. United States (1991) 502 US 46, 59 [116 LEd2d 371; 112 SCt 466]; Doyle v. Ohio (1976) 426 US 610 [49 LEd2d 91; 96 SCt 2240]; U.S. v. Hubbell (2000) 530 US 27 [120 SCt 2037, 2044; 147 LEd2d 24].)
(5) Instructions on the presumption of innocence and the prosecution’s burden of proof must not be conflicting or contradictory. (Francis v. Franklin (1985) 471 US 307 [85 LEd2d 344; 105 SCt 1965]; Baldwin v. Blackburn (5th Cir. 1981) 653 F2d 942, 949; People v. Noble (2002) 100 CA4th 184, 191; People v. Elguera (1992) 8 CA4th 1214, 1222;People v. Valenzuela (1977) 76 CA3d 218, 222.)
[See also FORECITE CG 7.2.1.]
This request is also based on the 14th Amendment’s Due Process Clause which is violated by:
(1) The arbitrary denial of a state created right. (Hicks v. Oklahoma (1980) 447 US 343 [65 LEd2d 175; 100 SCt 2227].) [See also FORECITE CG 6.3.]
(2) Multiple errors of state law which cumulatively render the trial unfair. (Greer v. Miller (1987) 483 US 756, 765 [107 SCt 3092; 97 LEd2d 618]; Taylor v. Kentucky (1978) 436 US 478, 488 [98 SCt 1930; 56 LEd2d 468]; Mak v. Blodgett (9th Cir. 1992) 970 F2d 614, 622; People v. Hill (1998) 17 C4th 800, 831, 844-45.) [See also FORECITE CG 6.4.]
Furthermore, because this instruction request is necessary to assure the reliability of the jury’s disposition of this case, it is required by the above provisions of the federal constitution. (See generally Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354]; White v. Illinois (1992) 502 US 346, 363-64 [112 SCt 736; 116 LEd2d 848]; Donnelly v. DeChristoforo (1974) 416 US 637, 646 [94 SCt 1868; 40 LEd2d 431]; Thompson v. City of Louisville (1960) 362 US 199, 204 [80 SCt 624; 4 LEd2d 654].) [See also FORECITE CG 1.14.]
If this instruction request is not granted, there is a reasonable likelihood that the jury will apply the instructions in a way that will prejudicially violate the defendant’s federal constitutional rights. (Estelle v. McGuire (1991) 502 US 62 [116 LEd2d 385; 112 SCt 475]; McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 839.)
ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases additional federal constitutional claims will apply, above and beyond the claims discussed above. (Insert appropriate grounds into Points and Authorities including, but not limited to, those applicable from FORECITE [(PG VII(I)(c)] [Constitutional Grounds: Death Penalty].)
CG 2.3 Prosecution’s Burden Of Proof: Irrational Permissive Inference.
CAVEAT: To properly preserve a federal constitutional claim, the defendant must explain how the constitutional provision is violated under the circumstances of the case. Therefore, the issues, language and authorities included in FORECITE’s Constitutional Grounds are not a substitute for individual consideration and presentation of each constitutional claim on a case-by-case basis. Counsel should also independently consider and research whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.
(See FORECITE CG Table of Contents [PG VII(I)(a)] for a partial list of other potential constitutional grounds.)
*Insert bold text into Points and Authorities:
This request is based, inter alia, on the Due Process, Trial By Jury, Confrontation, Compulsory Process and Right to Counsel Clauses of the California Constitution (Art I, §§7, 15 and 16) and the federal constitution (5th, 6th and 14th Amendments), as applied to California through the Incorporation Doctrine. (Duncan v. Louisiana (1968) 391 US 145 [20 LEd2d 491; 88 SCt 1444]; see also Tennessee v. Lane (2004) 541 US 509, 562 [158 LEd2d 820; 124 SCt 1978].)
Unless this instructional request is granted, the instructions will abridge the defendant’s rights under the above constitutional provisions by:
(1) Failing to fully and accurately instruct the jury that any person accused of a crime is presumed innocent unless and until the jury finds that every essential fact necessary to prove the charged crime and every element of the crime has been proved by the prosecution by a reasonable doubt. (Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348]; U.S. v. Gaudin (1995) 515 US 506 [132 LEd2d 444; 115 SCt 2310]; Sullivan v. Louisiana (1993) 508 US 275, 278-81 [113 SCt 2078; 124 LEd2d 182]; Carella v. California (1989) 491 US 263, 265-66 [105 LEd2d 218; 109 SCt 2419]; Sandstrom v. Montana (1979) 442 US 510 [61 LEd2d 39; 99 SCt 2450]; In re Winship (1970) 397 US 358 [25 LEd2d 368; 90 SCt 1068]; U.S. v. Voss (8th Cir. 1986) 787 F2d 393; People v. Hill (1998) 17 C4th 800; People v. Figueroa (1986) 41 C3d 714.)
(2) Permitting or encouraging the jury to make an arbitrary or irrational permissive inference which incriminates the defendant. (Ulster County Court v. Allen (1979) 442 US 140, 157 [99 SCt 2213; 60 LEd2d 777]; see also Francis v. Franklin (1985) 471 US 307, 314-15 [105 SCt 1965; 85 LEd2d 344]; Tot v. United States (1943) 319 US 463, 467-68 [63 SCt 1241; 87 LEd 1519]; Schwendeman v. Wallenstein (9th Cir. 1992) 971 F2d 313, 316.) “[A] criminal statutory presumption must be regarded as ‘irrational’ or ‘arbitrary,’ and hence unconstitutional unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact upon which it is made to depend. [Footnote omitted.]” (Leary v. U.S. (1969) 395 US 6, 36 [89 SCt 1532; 23 LEd2d 57]; see also Ulster County Court, 442 US at 165-66.)
This request is also based on the 14th Amendment’s Due Process Clause which is violated by:
(1) The arbitrary denial of a state created right. (Hicks v. Oklahoma (1980) 447 US 343 [65 LEd2d 175; 100 SCt 2227].) [See also FORECITE CG 6.3.]
(2) Multiple errors of state law which cumulatively render the trial unfair. (Greer v. Miller (1987) 483 US 756, 765 [107 SCt 3092; 97 LEd2d 618]; Taylor v. Kentucky (1978) 436 US 478, 488 [98 SCt 1930; 56 LEd2d 468]; Mak v. Blodgett (9th Cir. 1992) 970 F2d 614, 622; People v. Hill (1998) 17 C4th 800, 844-45.) [See also FORECITE CG 6.4.]
Furthermore, because this instruction request is necessary to assure the reliability of the jury’s disposition of this case, it is required by the above provisions of the federal constitution. (See generally Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354]; White v. Illinois (1992) 502 US 346, 363-64 [112 SCt 736; 116 LEd2d 848]; Donnelly v. DeChristoforo (1974) 416 US 637, 646 [94 SCt 1868; 40 LEd2d 431]; Thompson v. City of Louisville (1960) 362 US 199, 204 [80 SCt 624; 4 LEd2d 654].) [See also FORECITE CG 1.14.]
If this instruction request is not granted, there is a reasonable likelihood that the jury will apply the instructions in a way that will prejudicially violate the defendant’s federal constitutional rights. (Estelle v. McGuire (1991) 502 US 62 [116 LEd2d 385; 112 SCt 475]; McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 839.)
ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases additional federal constitutional claims will apply, above and beyond the claims discussed above. (Insert appropriate grounds into Points and Authorities including, but not limited to, those applicable from FORECITE [(PG VII(I)(c)] [Constitutional Grounds: Death Penalty].)
CG 2.4 Instructions Which Improperly Shift Burden Of Proof.
[Use FORECITE CG 2.2.]
CG 2.5 Lightening, Lessening Or Diminishing The Prosecution’s Burden Of Proof.
[Use FORECITE CG 2.2.]
CG 2.6 Lack Of Evidence May Result In Reasonable Doubt.
[Use FORECITE CG 2.2.]
CG 2.7 Guilt By Association.
CAVEAT: To properly preserve a federal constitutional claim, the defendant must explain how the constitutional provision is violated under the circumstances of the case. Therefore, the issues, language and authorities included in FORECITE’s Constitutional Grounds are not a substitute for individual consideration and presentation of each constitutional claim on a case-by-case basis. Counsel should also independently consider and research whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.
(See FORECITE CG Table of Contents [PG VII(I)(a)] for a partial list of other potential constitutional grounds.)
*Insert bold text into Points and Authorities:
This request is based, inter alia, on the Due Process, Trial By Jury, Confrontation, Compulsory Process and Right to Counsel Clauses of the California Constitution (Art I, §§7, 15 and 16) and the federal constitution (5th, 6th and 14th Amendments), as applied to California through the Incorporation Doctrine. (Duncan v. Louisiana (1968) 391 US 145 [20 LEd2d 491; 88 SCt 1444]; see also Tennessee v. Lane (2004) 541 US 509, 562 [158 LEd2d 820; 124 SCt 1978].)
Unless this instructional request is granted, the instructions will abridge the defendant’s rights under the above constitutional provisions by:
(1) Failing to fully and accurately instruct the jury that any person accused of a crime is presumed innocent unless and until the jury finds that every essential fact necessary to prove the charged crime and every element of the crime has been proved by the prosecution by a reasonable doubt. (Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348]; U.S. v. Gaudin (1995) 515 US 506 [132 LEd2d 444; 115 SCt 2310]; Sullivan v. Louisiana (1993) 508 US 275, 278-81 [113 SCt 2078; 124 LEd2d 182]; Carella v. California (1989) 491 US 263, 265-66 [105 LEd2d 218; 109 SCt 2419]; Sandstrom v. Montana (1979) 442 US 510 [61 LEd2d 39; 99 SCt 2450]; In re Winship (1970) 397 US 358 [25 LEd2d 368; 90 SCt 1068]; U.S. v. Voss (8th Cir. 1986) 787 F2d 393; People v. Hill (1998) 17 C4th 800; People v. Figueroa (1986) 41 C3d 714.)
(2) Permitting or encouraging the jurors to convict the defendant based on association with another person rather than by proof beyond a reasonable doubt of the defendant’s guilt. (Smith v. Kelso (11th Cir. 1989) 863 F2d 1564; United States v. Tootick (9th Cir. 1991) 952 F2d 1078; Abbott v. Wainwright (5th Cir. 1980) 616 F2d 889; Bird v. Wainwright (5th Cir. 1970) 428 F2d 1017.) The above-referenced constitutional provisions are also violated by procedures, instructions and/or the absence of instructions which result in the jury’s conviction of the accused based in whole or part upon the guilt of another person rather than the evidence admitted against the accused. (Jackson v. Denno (1964) 378 US 368, 388 [84 SCt 1774; 12 LEd2d 908]; Krulewitch v. U.S. (1949) 336 US 440, 445-46, 457 [69 SCt 716; 93 LEd 790] [conspiracy liability based solely on guilt by association is “fundamentally and irreconcilably at war with our presumption of innocence” ]; Kottteakos v. United States (1946) 328 US 750, 772-74 [66 SCt 1239; 90 LEd 1557]; United Brotherhood of Carpenters v. United States (1947) 330 US 395, 405-07 [67 SCt 775; 91 LEd 973]; Tot v. U.S. (1943) 319 US 463, 467 [63 SCt 1241; 87 LEd 1519] [“the due process clauses of the Fifth and Fourteenth Amendments set limits upon the power of Congress or that of a state legislature to make the proof of one fact or group of facts evidence of the existence of the ultimate fact on which guilt is predicated” ].)
Conviction of the accused based on evidence admitted against another person also violates the defendant’s federal constitutional rights to representation of counsel, confrontation and due process (5th, 6th and 14th Amendments) by convicting the accused based on evidence which he or she has not had an opportunity to challenge and/or confront. (See Bruton v. United States (1968) 391 US 123 [88 SCt 1620; 20 LEd2d 476]; see also Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354]; Imwinkelried & Garland, Exculpatory Evidence (Lexis, 2nd ed. 1996) ‘ 2-2(d) [Sixth Amendment right to confrontation].)
Additionally, the First Amendment “restricts the ability of the State to impose liability on an individual solely because of his association with another.” (N.A.A.C.P. v. Claiborne Hardware Co. (1982) 458 US 886, 918-19 [102 SCt 3409; 72 LEd2d 1215]; see also Scales v. U.S. (1961) 367 US 203, 228-29 [81 SCt 1469; 6 LEd2d 782].)
This request is also based on the 14th Amendment’s Due Process Clause which is violated by:
(1) The arbitrary denial of a state created right. (Hicks v. Oklahoma (1980) 447 US 343 [65 LEd2d 175; 100 SCt 2227].) [See also FORECITE CG 6.3.]
(2) Multiple errors of state law which cumulatively render the trial unfair. (Greer v. Miller (1987) 483 US 756, 765 [107 SCt 3092; 97 LEd2d 618]; Taylor v. Kentucky (1978) 436 US 478, 488 [98 SCt 1930; 56 LEd2d 468]; Mak v. Blodgett (9th Cir. 1992) 970 F2d 614, 622; People v. Hill (1998) 17 C4th 800, 844-45.) [See also FORECITE CG 6.4.]
Furthermore, because this instruction request is necessary to assure the reliability of the jury’s disposition of this case, it is required by the above provisions of the federal constitution. (See generally Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354]; White v. Illinois (1992) 502 US 346, 363-64 [112 SCt 736; 116 LEd2d 848]; Donnelly v. DeChristoforo (1974) 416 US 637, 646 [94 SCt 1868; 40 LEd2d 431]; Thompson v. City of Louisville (1960) 362 US 199, 204 [80 SCt 624; 4 LEd2d 654].) [See also FORECITE CG 1.14.]
If this instruction request is not granted, there is a reasonable likelihood that the jury will apply the instructions in a way that will prejudicially violate the defendant’s federal constitutional rights. (Estelle v. McGuire (1991) 502 US 62 [116 LEd2d 385; 112 SCt 475]; McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 839.)
ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases additional federal constitutional claims will apply, above and beyond the claims discussed above. (Insert appropriate grounds into Points and Authorities including, but not limited to, those applicable from FORECITE [(PG VII(I)(c)] [Constitutional Grounds: Death Penalty].)
CG 2.8 [Reserved]
CG 2.9 Insufficient Evidence On Appeal.
CAVEAT: To properly preserve a federal constitutional claim, the defendant must explain how the constitutional provision is violated under the circumstances of the case. Therefore, the issues, language and authorities included in FORECITE’s Constitutional Grounds are not a substitute for individual consideration and presentation of each constitutional claim on a case-by-case basis. Counsel should also independently consider and research whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.
(See FORECITE CG Table of Contents [PG VII(I)(a)] for a partial list of other potential constitutional grounds.)
*Insert bold text into Points and Authorities:
This request is based, inter alia, on the Due Process, Trial By Jury, Confrontation, Compulsory Process and Right to Counsel Clauses of the California Constitution (Art I, §§7, 15 and 16) and the federal constitution (5th, 6th and 14th Amendments), as applied to California through the Incorporation Doctrine. (Duncan v. Louisiana (1968) 391 US 145 [20 LEd2d 491; 88 SCt 1444]; see also Tennessee v. Lane (2004) 541 US 509, 562 [158 LEd2d 820; 124 SCt 1978].)
Unless this instructional request is granted, the instructions will abridge the defendant’s rights under the above constitutional provisions by allowing the defendant’s conviction to stand despite insufficient admissible evidence to support the jury’s verdicts. (Piaskowski v. Bett (7th Cir. 2001) 256 F3d 687 [petitioner’s presence at the scene of the crime and his reference to “shit going down” was constitutionally insufficient to sustain murder conviction based on conspiracy theory]; Moore v. Parke (7th Cir. 1998)148 F3d 705 [evidence insufficient to support finding that petitioner was a habitual offender, as defined by state law]; Mikes v. Borg (9th Cir. 1991) 947 F2d 353; Summit v. Blackburn (5th Cir. 1986) 795 F2d 1237, 1244; Jackson v. Virginia (1979) 443 US 307 [61 LEd2d 560; 99 SCt 2781].)
See also FORECITE CG 2.2.
This request is also based on the 14th Amendment’s Due Process Clause which is violated by:
(1) The arbitrary denial of a state created right. (Hicks v. Oklahoma (1980) 447 US 343 [65 LEd2d 175; 100 SCt 2227].) [See also FORECITE CG 6.3.]
(2) Multiple errors of state law which cumulatively render the trial unfair. (Greer v. Miller (1987) 483 US 756, 765 [107 SCt 3092; 97 LEd2d 618]; Taylor v. Kentucky (1978) 436 US 478, 488 [98 SCt 1930; 56 LEd2d 468]; Mak v. Blodgett (9th Cir. 1992) 970 F2d 614, 622; People v. Hill (1998) 17 C4th 800, 844-45.) [See also FORECITE CG 6.4.]
Furthermore, because this instruction request is necessary to assure the reliability of the jury’s disposition of this case, it is required by the above provisions of the federal constitution. (See generally Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354]; White v. Illinois (1992) 502 US 346, 363-64 [112 SCt 736; 116 LEd2d 848]; Donnelly v. DeChristoforo (1974) 416 US 637, 646 [94 SCt 1868; 40 LEd2d 431]; Thompson v. City of Louisville (1960) 362 US 199, 204 [80 SCt 624; 4 LEd2d 654].) [See also FORECITE CG 1.14.]
If this instruction request is not granted, there is a reasonable likelihood that the jury will apply the instructions in a way that will prejudicially violate the defendant’s federal constitutional rights. (Estelle v. McGuire (1991) 502 US 62 [116 LEd2d 385; 112 SCt 475]; McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 839.)
ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases additional federal constitutional claims will apply, above and beyond the claims discussed above. (Insert appropriate grounds into Points and Authorities including, but not limited to, those applicable from FORECITE [(PG VII(I)(c)] [Constitutional Grounds: Death Penalty].)
CG 2.10 Multiple Defendants: Separate Consideration.
See FORECITE CG 2.7.
