Due Process Challenge To Use Of Domestic Violence As Character Evidence
August 31st, 2015

Defense counsel should challenge the admission of domestic violence evidence as character evidence on federal due process grounds. However, even if such evidence is admitted, defense counsel should challenge this CC with respect to the use of such evidence. California case law notwithstanding, this instruction is unintelligible and unconstitutionally reduces the burden of proof. The CC tells the jury that if they find that the prior domestic violence has been proved to a preponderance, the may then use that evidence as part of the determination of whether the defendant is guilty. This mixing of the burden of proof between preponderance and proof beyond a reasonable doubt is certain to confuse the jury. Morever, the CC gives no guidance on how to use proof of the character of the defendant. May that evidence be used to fill any gap in the prosecution’s evidence?  May it be used to prove identity?  Intent? Age of the victim?  The CC gives the jury no direction at all on this critical point, and thus essentially permits the jury to use this character evidence in any way they want, unguided by judicial direction. This surely violates due process and defense counsel should so argue. (See CC 852, Authority indicating that People v. Cottone (2013) 57 Cal. 4th 269, 293, fn. 156, held there was no sua sponte duty to provide the jury with CC 852.) CC  853’s Bench Notes do not state that the court has a sua sponte duty, but do state that the court must give this instruction upon request. (CCJICH § 5.2, p. 519.)

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