SERIES 100 PRETRIAL INSTRUCTIONS
F 101.10 KEEP AN OPEN MIND
TABLE OF CONTENTS
F 101.10 Inst 1 (a & b) Duty To Keep An Open Mind; Jurors Must Not Form Or Express Opinion
F 101.10 Inst 2 (a & b) Jurors Must Not Even Attempt To Make Up Their Minds Before Commencement Of Deliberations
F 101.10 Inst 3 Jurors Not To Take Cue From Judge As Distinct Principle
F 101.10 Inst 4 Jurors Not To Take Cue From Judge Re: Defendant, Counsel
Return to Series 100 Table of Contents.
F 101.10 Inst 1 (a & b)Duty To Keep An Open Mind; Jurors Must Not Form Or Express Opinion
*Add to CC 101, paragraph 8:
Alternative a:
You must not form or express any opinion about any subject connected with this trial until you have heard each piece of evidence and all of the law which you must apply to that evidence—in other words, until you begin your deliberations.
Alternative b:
You must keep an open mind to both sides during this trial. As you know, there are generally two sides to most stories and you must not make up your mind or express any opinion about any of the questions in this case until you have heard each piece of evidence and all of the law which you must apply to that evidence—in other words, until you begin your deliberations.
Points and Authorities
Formation Of Opinion—A juror’s premature formulation of an opinion is serious misconduct which undermines the presumption of innocence in violation of the defendant’s constitutional rights to trial by jury and due process. (Calif. Const., Art I §15 & 16; U.S. Const. 6th and 14th Amendments.) (See In re Hitchings (1993) 6 C4th 97, 118, fn 6; People v. Brown (1976) 61 CA3d 476 [expression of an opinion as to the guilt of the defendant before hearing all the evidence was prejudicial misconduct]; Herring v. New York (1975) 422 US 853, 858 [45 LEd2d 593; 95 SCt 2550]; Winebrenner v. US (8th Cir. 1945) 147 F2d 322, 328; U.S. v. Klee (9th Cir. 1974) 494 F2d 394, 396; Flores v. State (NV 1998) 965 P2d 901, 903.)
Expression Of Opinion—The constitutional violation is all the more acute when the juror expresses his or her opinion. (See People v. Purvis (1963) 60 C2d 323, 341, fn 14 [“The influence that lurks in an opinion once formed is so persistent that it unconsciously fights detachment from the mental processes of the average man …”]: People v. Brown (1976) 61 CA3d 476 [expression of an opinion as to the guilt of the defendant before hearing all the evidence was prejudicial misconduct]; Delaney v. U.S. (1st Cir. 1952) 199 F2d 107, 113; Williams v. Salamone (CT 1984) 470 A2d 694, 696 [“Once a juror has expressed an opinion … the die may well have been cast” ]; Doyle v. Merrymount Hospital, Inc. (KY 1988) 762 SW2d 813, 816; Ivy v. General Motors Acceptance Corp. (MS 1992) 612 So2d 1108, 1112-13; Michigan Criminal Jury Instructions 2.12, commentary [Jurors Not to Discuss Case] (ICLE, 2nd ed. 1999).)
Hence, one of the above instructions should be given as a preliminary instruction and repeated at each adjournment of the jury throughout the trial. (PC 1122(b) [Jury must be admonished before each adjournment not to converse or form or express an opinion about the case; see also Devitt, et al., Fed. Jury Prac. & Instr. (1992) §10.01, p. 256; FORECITE F 101.1 Note 4; F 101.8 Inst 1.]
(See also FORECITE F 101.10 Inst 2; F 1.00 n11.)
Identification Of Parties—See FORECITE 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 7.5 [Fair And Unbiased Jury]
FORECITE CG 7.6 [Premature Deliberations Or Formulation Of Opinion]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 1.00f.
F 101.10 Inst 2 (a & b) Jurors Must Not Even Attempt To Make Up Their Minds Before Commencement Of Deliberations
Alternative a:
*Replace beginning of CC 101, paragraph 10, second sentence with:
Do not make up your mind attempt to form even a tentative opinion about the verdict or any issue until after you have discussed the case with the other jurors during deliberations.
Alternative b:
Do not form or express any opinion [not even a tentative one] about the verdict or any issue until after you have discussed the case with the other jurors during deliberations.
Points and Authorities
Formation Of Opinion—CALCRIM 101 implies that a juror may begin to form opinions about the verdict or other issues prior to the commencement of deliberations as long as the juror does not “make up [their] mind …” Such premature deliberation is improper and undermines the presumption of innocence.
A juror’s premature formulation of an opinion is serious misconduct which undermines the presumption of innocence in violation of the defendant’s constitutional rights to trial by jury and due process. (Calif. Const., Art I §15 & 16; U.S. Const. 6th and 14th Amendments.) (See In re Hitchings (1993) 6 C4th 97, 118, fn 6; People v. Brown (1976) 61 CA3d 476 [expression of an opinion as to the guilt of the defendant before hearing all the evidence was prejudicial misconduct]; Herring v. New York (1975) 422 US 853, 858 [45 LEd2d 593; 95 SCt 2550]; Winebrenner v. US (8th Cir. 1945) 147 F2d 322, 328; U.S. v. Klee (9th Cir. 1974) 494 F2d 394, 396; Flores v. State (NV 1998) 965 P2d 901, 903.)
Any Opinion—By merely admonishing jurors not to “make up your mind” the CALCRIM instruction fails to preclude the formation of tentative opinions. (See FORECITE PG X(D)(5) [Applying Instructional Principle To One Aspect Of The Charge And Not To Another].) However, even such tentative opinions could compromise the presumption of innocence.
Expression Of Opinion—See FORECITE F 101.10 Inst 1.
Hence, one of the above instructions should be given as a preliminary instruction and repeated at each adjournment of the jury throughout the trial. (PC 1122(b).)
(See also FORECITE F 101.10 Inst 2; F 1.00 n11.)
Identification Of Parties—See FORECITE 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 7.5 [Fair And Unbiased Jury]
FORECITE CG 7.6 [Premature Deliberations Or Formulation Of Opinion]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 101.10 Inst 3 Jurors Not To Take Cue From Judge As Distinct Principle
*Make the following a separate paragraph:
Do not take anything I say or do during the trial as an indication of what I think about the facts, the witnesses, or what your verdict should be.
Points and Authorities
To promote juror understanding of the instructions each distinct rule or admonition should be in a separate paragraph.
Identification Of Parties—See FORECITE 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 7.5 [Fair And Unbiased Jury]
FORECITE CG 7.8 [Right To Individual Juror Determination]
FORECITE CG 10.2 [Judge‘s Duties: Deadlocked Jury]
FORECITE CG 10.3 [Comment, Argument Or Undue Emphasis]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 101.10 Inst 4 Jurors Not To Take Cue From Judge Re: Defendant, Counsel
*Modify CC 101, paragraph 10, last sentence as follows [added language is underlined; deleted language is stricken]:
Do not take anything I say or do during the trial as an indication of what I think about the facts, the witnesses, the defendant, counsel or what your any verdict you reach should be.
Points and Authorities
Judge Should Not Disparage The Defense—It is error for the instructions to disparage the defense. For example, any instruction pertaining to the credibility of an alibi defense must only be given “with great caution.” (State v. Desmarais (RI 1984) 479 A2d 745, 747; see also U.S. v. Robinson (6th Cir. 1979) 602 F2d 760, 761-62 [improper to instruct that “defense of alibi should be received by jury discretely and cautiously because it is a defense that is easily manufactured or fabricated” ]; Wharton’s Criminal Evidence (West, 15th Ed. 1997) §2:11, pp. 72-73.) “Although some courts, in sustaining cautionary instructions, have warned that it is a defense which should be carefully scrutinized, other courts have fallen into error by speaking of the defense disparagingly.” [Footnotes omitted.] (Wharton’s Criminal Law (West, 15th Ed. 1993) §43, pp. 280-281.)
“The trial court may not, in the guise of privilege, withdraw material evidence from the jury’s consideration, distort the record, expressly or impliedly direct a verdict, or otherwise usurp the jury’s ultimate fact-finding power. [Citations.]” (People v. Rodriguez (1986) 42 C3d 730, 766.) And, to the extent that proper judicial comment is permitted, the jury should be expressly informed that it is not bound to accept the judge’s interpretation and may disregard any or all of the comments with which the jurors do not agree. (See People v. Lucero (1988) 44 C3d 1006, 1021 [improper judicial comment on evidence].) “It is improper … for the court to single out a particular witness in an instruction, since by doing so, the court charge becomes a comment on how the evidence should be considered, rather than a general instruction on a defense theory. [Citations.]” (People v. Harris (1989) 47 C3d 1047, 1099.) Moreover, a judge’s comment on the evidence may also violate the state and federal constitutional right to due process and fair trial by jury. (See U.S. v. Fuller (4th Cir. 1998) 162 F3d 256, 259-60.)
Improper To Praise Prosecutor Or Prosecution Witnesses—The trial court should only comment on the credibility of a witness when such commentary is necessary for proper determination of the case and to assist the jury in reaching a fair verdict. (See e.g., People v. Proctor (1992) 4 C4th 499, 542; People v. Rodriguez (1986) 42 C3d 730, 765-70.) When the trial judge praises a witness, extolling his or her honesty and good faith to the jury and praises counsel for his or her good faith, such comments do not assist the jurors in their determinations. Such comments improperly throw the court’s judicial weight into the scales in favor of one party. “Our courts have on many occasions pointed out the duty of a trial judge before a jury, both in criminal and civil cases, not to do anything which would lead the jury to believe that the judge was of the opinion that one party or the other should receive the verdict, nor to appear to throw his [or her] judicial weight on one side or the other. [Citations.] These cases reiterate the fact that jurors are eager to find, and quick to follow, any supposed hint of the judge as to how they should decide the case.” (People v. Cole (1952) 113 CA2d 253, 261; see also People v. Frank (1925) 71 CA 575, 578-80 [improper to praise prosecution witnesses].)
Judge Should Not Disparage Defense Counsel—Just as it is improper for the judge to improperly praise an attorney or witness, so too is it improper for the judge to advise the jury of negative personal views concerning the competence, honesty, or ethics of the attorneys in a trial. (See People v. Fatone (1985) 165 CA3d 1164, 1174.) For example, even if the prosecutor correctly objected to conduct by the defendant’s attorney, that would not justify reprimanding defense counsel in front of the jury. “When the court embarks on a personal attack on an attorney, it is not the lawyer who pays the price, but the client.” (Id. at 1175; see also Suggs v. State (MD 1991) 589 A2d 551, 554 [instruction to not hold court’s comments against defense counsel or otherwise let comments interfere with judgment did little, if anything, to remedy prejudicial effect of court’s comments].)
“Although, in his discretion, the trial judge may aid counsel in phrasing questions or in avoiding repetition, he should not belittle the efforts of counsel. Nor should he allow the trial to become a running battle between himself and the attorneys. If, for whatever reason, the trial judge finds it necessary to reprimand counsel, he should do so only after the jury has been removed from the courtroom.” [Footnotes omitted.] (Wharton’s Criminal Procedure (West, 13th ed. 1989) §435, p. 838; see also Quercia v. U.S. (1933) 289 US 466, 470 [53 SCt 698, 699; 77 LEd 1321] [“The influence of the trial judge on the jury ‘is necessarily and properly of great weight’ and ‘his lightest word or intimation is received with deference, and may prove controlling.’ [Citation.]” ].)
A major source of prejudice from disparagement of counsel by the trial court is that the attorney’s credibility is undermined in the eyes of the jury. “[T]he words and utterances of a trial judge, sitting with a jury in attendance, are liable, however unintentional, to mold the opinion of the members of the jury to the extent that one or the other side of the controversy may be prejudiced or injured thereby.” (Parodi v. Center (NV 1995) 892 P2d 588, 589-90. Hence, disparagement of counsel by the judge tends to “‘impugn the credibility of counsel … in the eyes of the jury.’ [Citation.]” (State v. Pace (SC 1994) 447 SE2d 186, 187.)
Moreover, the prejudice is especially high when the defendant is advancing a specific defense or defense theory. In such a case the “attorney’s credibility [is] crucial…” (Ibid.)
In sum, disparagement of defense counsel may undermine an attorney’s “ability to effectively represent her client…” (Ibid.) This in turn abridges the defendant’s federal constitutional rights including the right to due process, trial by jury, confrontation, compulsory process and effective representation of counsel. (6th and 14th Amendments.)
“Your Verdict” vs. “Any Verdict You Might Reach” —See FORECITE F 100.7 Inst 1.
Identification Of Parties—See FORECITE 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 1.10 [Right To Effective Counsel]
FORECITE c [Compulsory Process: Generally]
FORECITE CG 1.13 [Confrontation: Generally]
FORECITE CG 5.3 [Impairing Jury‘s Assessment Of Witness Credibility]
FORECITE CG 6.11 [Fairness: Generally]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
See also FORECITE F 100.7 Inst 2; FORECITE PG IX(J).
