SERIES 100 PRETRIAL INSTRUCTIONS
F 100.5 CLOSING ARGUMENTS
TABLE of contents
F 100.5 Inst 1 Reference To Rebuttal Arguments
F 100.5 Inst 2 (a-c) Pretrial Introduction And Definitions: Alternative Instructions
F 100.5 Note 1 Prosecutorial Misconduct: Improper Comment On Willingness Of Witness To Testify As Opposed To Defendant
Return to Series 100 Table of Contents.
F 100.5 Inst 1 Reference To Rebuttal Arguments
*Add at end of CC 100, paragraph 4:
The prosecution will be allowed to make a rebuttal final argument since they bear the burden of proof.
Points and Authorities
CALCRIM 100 is incomplete because it fails to mention rebuttal argument.
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case.
Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 100.5 Inst 2 (a-c) Pretrial Introduction And Definitions: Alternative Instructions
Alternative a:
PRETRIAL INTRODUCTION
What I will now say is intended to serve as an introduction to the trial of this case. It is not a substitute for the detailed instructions on the law which I will give to you at the close of the case and before you retire to deliberate on your verdict. During the trial and beginning with these preliminary instructions you will hear me use a few terms which you may not have heard before. Let me now briefly explain a few of the most common to you. You will sometimes hear me refer to “counsel.” “Counsel” is another way of saying “lawyers” or “attorneys.” I will sometimes refer to myself as the “court.” The prosecution and the defendant are sometimes called the “parties” to this case.
When I “sustain” an “objection,” I am excluding that evidence or argument from this trial for good reason. Do not guess what the answer might have been. Do not speculate as to the reason for the objection. Do not assume to be true any insinuation suggested by a question asked a witness. A question is not evidence and may be considered only as it enables you to understand the answer. When you hear that I have “overruled” an objection, I am permitting that evidence or argument to be admitted. When we say “admitted into evidence” or “received into evidence,” we mean that this particular statement or this particular exhibit is now part of the trial and may be considered by you in making the decisions you must make in this case.
The term “burden of proof” or “sustaining its burden of proof” means the obligations of proving its case—in this trial—the prosecution’s obligation to produce proof beyond a reasonable doubt.
Alternative b:
DEFINITION OF EVIDENCE
You are instructed that “evidence” is whatever is admitted in the trial of the case as a part of the record, whether it be an article or document marked as an exhibit, or other matter formally introduced and received, a stipulation of the testimony of witnesses, in order to enable you to pronounce with reasonable certainty concerning the truth of any matter in dispute.
Alternative c:
IMPARTIALITY IN CONSIDERING EVIDENCE
You must consider and decide this case fairly and impartially. You should not be prejudiced for or against a person because of that person’s race, religion, political or social views, wealth or poverty. You should not even consider such matters. Alsodo not let bias, sympathy, prejudice, or public opinion influence your decision.
Points and Authorities
PC 1122(a) requires general instruction, prior to the opening statements, concerning the jury’s “basic functions, duties, and conduct.” (See People v. Carter (2003) 30 C4th 1166, 1199 [failure to admonish per PC 1122 was error].) The above instructions provide needed context and explanation of legal terms so that subsequent pretrial instructions on the jury’s functions, duties and conduct will be more fully understood by the jury. (See Devitt, et al., Fed. Jury Prac. & Instr. (1992) §10.01, p. 253-54 and CJ 1.02; Deering’s EC 350, Suggested Forms; see also FORECITE CHK V for examples of instructions which may be required by PC 1122(a).)
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case.
Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 7.3 [Consideration Of Matters Not Admitted Into Evidence]
FORECITE CG 7.4 [Juror Consideration Of Evidence For An Improper Purpose]
FORECITE CG 7.5 [Fair And Unbiased Jury]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 100.5 Note 1 Prosecutorial Misconduct: Improper Comment On Willingness Of Witness To Testify As Opposed To Defendant
People v. Guzman (2000) 80 CA4th 1282, 1290 held that a prosecutor’s repeated references to a witness’s willingness to testify impliedly compared the witness to the defendant, who did not testify, and constituted error under Griffin v. California (1965) 380 US 609 [14 LEd2d 106; 85 SCt 1229]. The Court pointed out the distinction between comments directed at the defense’s failure to present evidence, at the defendant’s silence, and admitted that “prosecutors must walk a fine line when treading in this area.”
RESEARCH NOTE: Violation of federal constitutional rule (Griffin v. California) prohibiting adverse comment by prosecutor or court upon accused’s failure to testify, as constituting reversible or harmless error, 24 A.L.R.3d 1093, supp sec. 10.
CALJIC NOTE: See FORECITE F 2.60 n9.
