PG VII(I) Constitutional Grounds, Section 4
PG VII(I)(b) Grounds For All CasesBCapital and Non-Capital
TABLE OF CONTENTS
CG 4 Defenses
CG 4.1 Right To Instruct The Jurors On Defense Theories
CG 4.2 Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge
CG 4.3 Affirmative Defense: Right To Instruction
CG 4.4 Jury Must Consider Affirmative Defense Evidence As To Whether Prosecution Has Proven All Elements Of The Offense
CG 4.5 Right To Present Evidence And Fair Opportunity To Defend
CG 4.6 Right To Present Evidence: Experts
CG 4.7 Right To Pinpoint Instruction: Non-Element
Return to Constitutional Grounds Table of Contents.
CG 4 Defenses.
CG 4.1 Right To Instruct The Jurors On Defense Theories.
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 the 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 place the burden on the prosecution to prove every essential fact and element of the charge beyond a reasonable doubt. (Neder v. U.S. (1999) 527 US 1 [119 SCt 1827; 144 LEd2d 35]; U.S. v. Gaudin (1995) 515 US 506, 509-12 [115 SCt 2309; 132 LEd2d 444]; Jackson v. Virginia (1979) 443 US 307, 315-18 [99 SCt 2781; 61 LEd2d 560]; In re Winship (1970) 397 US 358 [90 SCt 1068; 25 LEd2d 368].) These principles necessarily includes the right to jury instructions which relate the defense theories to the prosecution’s burden of proof. (See generally Martin v. Ohio, supra, 480 US 228 at 233-34 [instruction that jury could not consider self-defense evidence in determining whether there was a reasonable doubt about the State’s case would violate Winship].) Without such defense theory instruction the jurors may improperly shift the burden to the defendant. (Ibid.; see also generally Carella v. California (1989) 491 US 263, 265-66 [109 SCt 2419; 105 LEd2d 218]; Sandstrom v. Montana (1979) 442 US 510, 521-24 [99 SCt 2450; 61 LEd2d 39].)
(2) Violating the defendant’s right to “a meaningful opportunity to present a complete defense.” (California v. Trombetta (1984) 467 US 479, 485 [104 SCt 2528; 81 LEd2d 413]; see also Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354]; Martin v. Ohio (1987) 480 US 228, 233-34 [107 SCt 1098; 94 LEd2d 267]; Crane v. Kentucky (1986) 476 US 683, 690 [106 SCt 2142; 90 LEd2d 636]; Rock v. Arkansas (1987) 483 US 44 [107 SCt 2704; 97 LEd2d 37]; Chambers v. Mississippi (1973) 410 US 284, 302 [93 SCt 1038; 35 LEd2d 297]; Richmond v. Embry (10th Cir. 1997) 122 F3d 866, 871; Taylor v. Singletary (11th Cir. 1997) 122 F3d 1390, 1394 [right to present defense witness testimony resides in the compulsory due process clause and the due process clause of the federal constitution]; U.S. v. Lopez-Alvarez (9th Cir. 1992) 970 F2d 583, 588.)
A defense theory instruction is an essential part of the right to present a defense. (See e.g., U.S. v. Sayetsitty (9th Cir. 1997) 107 F3d 1405, 1414 [defendant has a due process right to have the jury consider defenses recognized by state law which negate elements of the defense].) Indeed, absent an appropriate instruction, the right to present evidence would be entirely meaningless. (U.S. v. Escobar de Bright (9th Cir. 1984) 742 F2d 1196, 1201-1202 [“[p]ermitting a defendant to offer a defense is of little value if the jury is not informed that the defense, if it is believed or if it helps create a reasonable doubt in the jury’s mind, will entitle the defendant to a judgment of acquittal” ]; see also Conde v. Henry (9th Cir. 1999) 198 F3d 734, 739-42 [same]; People v. Cox (1991) 53 C3d 618, 695-96 [defendant has right to reasoned, considered judgment of the jury].)
Moreover, “as a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.” (Mathews v. United States (1988) 485 US 58, 63 [99 LEd2d 54; 108 SCt 883] [citing Stevenson v. United States (1896) 162 US 313 [40 Led 980; 16 SCt 839] [refusal of voluntary manslaughter instruction in murder case where self-defense was primary defense constituted reversible error]; see also Burger v. Kemp (1987) 483 US 776 [97 LEd2d 638; 107 SCt 3114]; Keeble v. U.S. (1973) 412 US 205, 213 [36 LEd2d 844; 93 SCt 1993]; U.S. v. Unruh (9th Cir. 1987) 855 F2d 1363, 1372; Bennett v. Scroggy (6th Cir. 1986) 793 F2d 772, 777-79; U.S. v. Escobar de Bright (9th Cir. 1984) 742 F2d 1196, 1201-02.) ” … [T]he principle [is] established in American law … that a defendant is entitled to a properly phrased theory of defense instruction if there is some evidence to support that theory … [citations].” (Virgilio v. State (Wyoming) (1992) 834 P2d 1125, 1130; U.S. v. Kenny (9th Cir. 1981) 645 F2d 1323, 1337 [“jury must be instructed as to the defense theory of the case” ]; U.S. v. Oreto (1st Cir. 1994) 37 F3d 739, 748; U.S. v. Douglas (7th Cir. 1987) 818 F2d 1317, 1320-21 [“the failure to include an instruction on the defendant’s theory of the case … would deny the defendant a fair trial” ]; U.S. v. Hicks (4th Cir. 1984) 748 F2d 854, 857-858; People v. Wharton (1991) 53 C3d 522, 570-72; United States v. Sarno (9th Cir. 1995) 73 F3d 1470, 1485; United States v. Zuniga (9th Cir. 1993) 6 F3d 569, 571.)
These rights are also implicated by the failure to fully and correctly instruct the jury on any affirmative defense to the charged offense. (See Martin v. Ohio, supra, 480 US 228; see also CG 4.3 [Affirmative Defense: Right To Instruction].)
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 4.2 Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge.
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 require that the defendant be given a “fair opportunity to defend” and which places the burden on the prosecution to prove every element of the charge beyond a reasonable doubt. (See In re Winship (1970) 397 US 358 [90 SCt 1068; 25 LEd2d 368]; Jackson v. Virginia (1979) 443 US 307 [99 SCt 2781; 61 LEd2d 560]; see also FORECITE CG 4.5.)
(2) Permitting or encouraging 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 [109 SCt 2419; 105 LEd2d 218]; Sandstrom v. Montana (1979) 442 US 510, 521-24 [99 SCt 2450; 61 LEd2d 39].)
(3) Denying the defendant a “meaningful opportunity” to defend, which necessarily includes the right to jury instructions which relate the defense theories to the prosecution’s burden of proof. (See generally Martin v. Ohio, supra, 480 US 228 at 233-34 [instruction that jury could not consider self-defense evidence in determining whether there was a reasonable doubt about the State’s case would violate Winship].) Without such defense theory instruction the jurors may improperly shift the burden to the defendant. (Ibid.; see also generally Carella v. California, 491 US 263 [109 SCt 2419; 105 LEd2d 218]; Sandstrom v. Montana, 442 US 510 [99 SCt 2450; 61 LEd2d 39].)
See also FORECITE CG 4.1 and PG X(A)(1.3.2).
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 4.3 Affirmative Defense: Right To Instruction.
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 failing to require that the jury be fully and correctly instructed on all applicable affirmative defenses. (See Mathews v. U.S. (1988) 485 US 58, 63 [108 SCt 883; 99 LEd2d 54]; Martin v. Ohio (1987) 480 US 228, 233-34 [107 SCt 1098; 94 LEd2d 267]; U.S. v. Escobar de Bright (9th Cir. 1984) 742 F2d 1196, 1201-02.)
See also FORECITE CG 4.1.
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, 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 4.4 Jury Must Consider Affirmative Defense Evidence As To Whether Prosecution Has Proven All Elements Of The Offense.
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 failing to assure juror consideration of exculpatory evidence upon which the defendant has relied to leave the jurors with a reasonable doubt as to any essential fact or element of the charge. (See e.g., Rock v. Arkansas (1987) 483 US 44, 61 [107 SCt 2704; 97 LEd2d 37] [domestic rule of evidence may not be used to exclude crucial defense evidence]; Martin v. Ohio (1987) 480 US 228, 233 [107 SCt 1098; 94 LEd2d 267] [instruction that jury could not consider self defense evidence in determining whether there was a reasonable doubt about the State’s case would violate In re Winship (1970) 397 US 358 [90 SCt 1068; 25 LEd2d 368]]; Chambers v. Mississippi (1973) 410 US 284, 302 [93 SCt 1038; 35 LEd2d 297]; People v. Bobo (1990) 229 CA3d 1417, 1442 [legislature cannot deny defendant an opportunity to prove he or she did not possess a statutorily required mental state].)
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 4.5 Right To Present Evidence And Fair Opportunity To Defend.
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].) “The rights to notice, confrontation, and compulsory process, when taken together, guarantee that a criminal charge may be answered in a manner now considered fundamental to the fair administration of American justice—through the calling and interrogation of favorable witnesses, the cross-examination of adverse witnesses, and the orderly introduction of evidence. In short, the Amendment constitutionalizes the right in an adversary criminal trial to make a defense as we know it. [Citation.]” (Faretta v. California (1975) 422 U.S. 806, 818 [45 LEd2d 562; 95 SCt 2525].)
Unless this instructional request is granted, the instructions will abridge the defendant’s rights under the above constitutional provisions by:
(1) Denying the defendant a fair opportunity to defend and failing to require the jurors to consider any defense theory which the defendant offers to negate an element of the charge. (See Michelson v. United States (1948) 335 US 469, 476 [69 SCt 213; 93 LEd2d 168] [character evidence denied defendant a “fair opportunity to defend” ]; Mathews v. U.S. (1988) 485 US 58, 63 [108 SCt 883; 99 LEd2d 54]; Martin v. Ohio (1987) 480 US 228, 233-34 [107 SCt 1098; 94 LEd2d 267] [instruction that jury could not consider self-defense evidence in determining whether there was a reasonable doubt about the State’s case would violate Winship]; Jackson v. Virginia (1979) 443 US 307, 314 [99 SCt 2781; 61 LEd2d 560]; Chambers v. Mississippi (1973) 410 US 284, 294 [93 SCt1038; 35 LEd2d 297]; Strickland v. Washington (1984) 466 US 668 [104 SCt 2052; 80 LEd2d 674] [ineffective counsel inquiry turns on “the fundamental fairness of the proceeding whose result is being challenged” ]; Cooper v. Oklahoma (1996) 517 US 348, 369 [116 SCt 1373; 134 LEd2d 498] [“fundamental fairness” ]; Conde v. Henry (9th Cir. 1999) 198 F3d 734, 739-40; U.S. v. Douglas (7th Cir. 1987) 818 F2d 1317, 1322; U.S. v. Hicks (4th Cir. 1984) 748 F2d 854, 857-58; Strauss v. U.S. (5th Cir. 1967) 376 F2d 416, 419; U.S. ex rel. Means v. Solem (8th Cir. 1980) 646 F2d 322, 327-28; State v. Thomas (NJ 1991) 586 A2d 250, 253 [fundamental fairness demanded DNA testing]; People v. Bobo (1990) 229 CA3d 1417, 1442 [legislature cannot deny defendant an opportunity to prove he or she did not possess a statutorily required mental state].)
(2) Failing to allow the defendant to present evidence on valid defense theories in response to a criminal prosecution. (See Martin v. Ohio (1987) 480 US 228, 233-34 [107 SCt 1098; 94 LEd2d 267]; Crane v. Kentucky (1986) 476 US 683, 690 [106 SCt 2142; 90 LEd2d 636]; Rock v. Arkansas (1987) 483 US 44 [107 SCt 2704; 97 LEd2d 37]; Chambers v. Mississippi (1973) 410 US 284, 302 [93 SCt 1038; 35 LEd2d 297]; Richmond v. Embry (10th Cir. 1997) 122 F3d 866, 871; Taylor v. Singletary (11th Cir. 1997) 122 F3d 1390, 1394 [right to present defense witness testimony resides in the compulsory due process clause and the due process clause of the federal constitution]; Nichols v. Butler (11th Cir. 1992) (en banc) 953 F2d 1550 [defendant’s right to testify was violated when his attorney actively and forcefully prevented him from testifying, despite defendant’s desire to do so, by threatening to withdraw from representation if defendant persisted in his wish to take the stand].)
(3) Failing to provide the defendant “a meaningful opportunity to present a complete defense.” (California v. Trombetta (1984) 467 US 479, 485 [104 SCt 2528; 81 LEd2d 413]; see also U.S. v. Lopez-Alvarez (9th Cir. 1992) 970 F2d 583, 588; cf., Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354].) This guarantee applies to criminal defendants in state court. (See Trombetta, 467 US at 485.) It may be violated when a defendant is prevented from presenting evidence important to his or her defense or otherwise denied an opportunity to defend such as by limitation of cross-examination. (See e.g., id. at 488-89; Gilmore v. Taylor (1993) 508 US 333 [113 SCt 2112; 124 LEd2d 306]; United States v. Vavages (9th Cir. 1998) 151 F3d 1185; Lopez-Alvarez, 970 F2d at 588 [limitation on cross-examination of prosecution witness about hearsay statements that could have cast doubt on his credibility]; In re Hill (1998) 17 C4th 800, 834 [threatening a defense witness with a perjury conviction violates a defendant’s 6th Amendment right to compulsory process]; In re Martin (1987) 44 C3d 1; United States v. Goodwin (5th Cir. 1980) 625 F2d 693, 703.)
[See also FORECITE CG 6.15.]
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 4.6 Right To Present Evidence: Experts.
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 denying the defense the opportunity to present necessary expert testimony. The Supreme Court has recognized that expert testimony regarding a defendant’s mental health is often necessary to help the jury understand the issues. (Ake v. Oklahoma (1985) 470 US 68, 82-86 [105 SCt 1087; 84 LEd2d 53]; see also U.S. v. Fazzini (7th Cir. 1989) 871 F2d 635, 637; United States v. Reno (7th Cir. 1993) 992 F2d 739, 742 [“An expert can help the jury understand mental illness and its symptoms and effects” ]; U.S. v. Madoch (N.D. Ill. 1996) 935 FSupp 965, 970; People v. Nunn (1996) 50 CA4th 1357, 1365 [expert testimony is admissible concerning factors which may be relevant to whether a defendant harbored a required mental state or intent at the time he or she acted].)
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].)
GC 4.7 Right To Pinpoint Instruction: Non-Element.
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 to present evidence on valid defense theories in response to a criminal prosecution and to have the jurors instructed in light of that evidence. A criminal defendant has a constitutional right to present evidence in his or her defense. (Martin v. Ohio (1987) 480 US 228, 233-34 [107 SCt 1098; 94 LEd2d 267]; Rock v. Arkansas (1987) 483 US 44, 53-56 [107 SCt 2704; 97 LEd2d 37]; Crane v. Kentucky (1986) 476 US 683, 690 [106 SCt 2142; 90 LEd2d 636]; Taylor v. Singletary (11th Cir. 1997) 122 F3d 1390, 1394.)
Absent an appropriate jury instruction in light of the defense evidence, the right to present evidence would be entirely meaningless. (U.S. v. Escobar de Bright (9th Cir. 1984) 742 F2d 1196, 1201-1202 [“[p]ermitting a defendant to offer a defense is of little value if the jury is not informed that the defense, if it is believed or if it helps create a reasonable doubt in the jury’s mind, will entitle the defendant to a judgment of acquittal” ]; see also Conde v. Henry (9th Cir. 1999) 198 F3d 734, 739-42 [same]; People v. Cox (1991) 53 C3d 618, 695-96 [defendant has right to reasoned, considered judgment of the jury].)
See also FORECITE CG 4.1 & CG 4.5.
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].)
