CC 100, paragraph 3, sentence 4, provides as follows:
“Because (he/she/they) (is/are) presumed innocent, the defendant[s] (does/do) not have to prove that (he/she/they) (is/are) not guilty.”
CC 100 is technically correct as far as it goes. (See People v. Ibarra (2007) 156 CA4th 1174, 1179.) However, it only discusses the presumption of innocence in the context of the ultimate question of whether or not the defendant is guilty. Thus, the instruction fails to assure the jurors will understand that except for affirmative defenses (see e.g., People v. Lam (2004) 122 CA4th 1297, 1301) and preliminary facts (see e.g., EC 403) the defendant has no burden to present evidence or prove any specific facts at trial. (See FORECITE PG III(D); see also In re Winship (1970) 397 US 358, 363; People v. Hill (1998) 17 C4th 800, 831; People v. Woods (2006) 146 CA4th 106, 112-13; United States v. Blankenship (11th Cir. 2004) 382 F3d 1110, 1127.)
Nor is this defect insignificant simply because CC 100 is merely a general preliminary instruction. None of the remaining CALCRIM instructions expressly clarify the applicability of the presumption of innocence to specific issues and facts.
First, no other CALCRIM instruction specifically informs the jurors that the defendant has no burden of proving specific issues at trial.
Second, CC 103, which specifically defines the presumption of innocence, does so only in the context of the prosecution’s burden to prove all elements of the charge. It does not discuss how the presumption relates to other essential factual issues. This suggests by implication that the presumption of innocence does not apply to essential facts which are not elements of the charge. (See FORECITE F PG X(D)(5).)
Third, many of the more specific CALCRIM instructions actually suggest that the defendant may have some burden of production or proof. (See e.g., FORECITE F 103.3 Inst 2; F 104.1 Inst 1; F 100.7 Inst 1.)
In sum, when considered in light of all the instructions, as the jurors are required to do (see CC 200, paragraph 5), CC 100 improperly permits the jurors to conclude that the defendant must prove or disprove specific issues and facts at trial.
Moreover, even if the instruction is adequate to survive a challenge on appeal under the appellate standard of review [whether there is a reasonable likelihood that the jury applied the instruction in a way that denied the defendant a fair trial (Estelle v. McGuire (1991) 502 U.S. 62, 72-73; People v. Clair (1992) 2 C4th 629, 663)], trial counsel should be entitled to clarify such ambiguities through modification of the instruction (e.g., People v. Guiuan (98) 18 C4th 558, 570 [defense counsel has duty/right to request appropriate clarifying or amplifying language to correct instructions] or argument to the jury (see e.g., FORECITE F 200.5 Inst 2 Counsel’s Argument That A Specific Rule Is Included In A General Instruction.)
For sample instructions and additional briefing on this issue see FORECITE F 100.1 Inst 1 (a-d) Defense Has No Obligation To Prove Anything.