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DP III(A)

HOW TO USE THE CHECKLIST [§DP-10]

  • The checklist is designed to assist counsel in two endeavors:
    • 1. To obtain the best possible instructions at trial.
    • 2. To provide the best possible record for state and federal review.
  • In these endeavors it is designed to provide ideas, stimulate thought and reference available resources. It is not intended to provide a single exhaustive source for all penalty phase instructional needs, but should be used in conjunction with all other available resources.
    • Cross references to these other sources will be made as follows:
    • “Manual” CACJ/CPDA Death Penalty Manual, 1990 Ed., Chapter 10, pp. 505-555, Michael N. Burt.
    • “91 Supp” 1991 Supplement to CACJ/CPDA Manual, Chapter 10, pp. 1-20.
    • “92 Supp” 1992 Supplement to CACJ/CPDA Manual, pp. 169-187.
    • “R & O” Rucker and Overland, California Criminal Forms and Instructions, Volume 3 (1983) Bancroft and Whitney.
    • “Ellman” Ellman, S., Instructions on Death: Guiding the Jury’s Sentencing Discretion in Capital Cases, The Champion, April 1986.
  • With regard to issue preservation it is essential to heed the following CAVEATS:
    • 1. Federal constitutional errors may be deemed waived and procedurally defaulted in federal court unless they are raised at trial and on level in state court. (See People v. Gordon (90) 50 C3d 1223, 1240, fn 2 [270 CR 451]; Sochor v. Florida (92) 504 US 527 [119 LEd2d 326; 112 SCt 2114]; see also FORECITE PG III(A) and PG IV.)
    • 2. Rejection of a federal constitutional issue by the California Supreme Court does not limit de novo federal habeas review of that issue. (Wright v. West (92) 505 US 277 [120 LEd2d 225; 112 SCt 2482].)
    • 3. Rejection of an issue by the United States Supreme Court does not necessarily eliminate the issue as a question of state law. (See, e.g., 8.85(a) 4: Lingering Doubt.)
    • 4. Rejection of a legal point by the California Supreme Court in prior cases does not eliminate the need to raise the issue at trial and on appeal in state court. (See Hargrave v. Wainwright (11th Cir. 1986) 804 F2d 1182 at 1190, REHEARING GRANTED AND DIFF. RESULTS REACHED see Hargrave v. Dugger (87) 832 F2d 1528: futility does not excuse failure to exhaust.)
    • 5. The trial court’s sua sponte duties regarding instructions are limited (see FORECITE PG III(A)) and, therefore, the absence of a sua sponte duty to give an instruction does not preclude giving the instruction on request.
    • 6. Except where a tactical decision takes precedence, or an issue has been directly rejected by the California Supreme Court and the U.S. Supreme Court, there is every reason to request instructions and/or make objections based on all appropriate issues identified in the outline under federal constitutional principles (8th and 14th Amendments) and/or under appropriate provisions of state law.
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