SERIES 100 PRETRIAL INSTRUCTIONS
F 103.1 PRESUMPTION OF INNOCENCE: NO BIAS BECAUSE DEFENDANT ARRESTED AND CHARGED
TABLE OF CONTENTS
F 103.1 Inst 1 No Bias Against Defendant
F 103.1 Inst 2 Modification Where Defendant Self-Surrendered
F 103.1 Inst 3 (a & b) Charging Document Does Not Permit An Inference Of Guilt
F 103.1 Inst 4 Jury Not To Consider Indictment As Evidence
F 103.1 Inst 5 Burden Of Proof Never Shifts To Defendant
F 103.1 Inst 6 Arrest, Charges And Trial Are Not Evidence
Return to Series 100 Table of Contents.
F 103.1 Inst 1 No Bias Against Defendant
*Modify CC 103, paragraph 1, sentence 4, as follows [added language is underlined]:
You must not be biased against the defendant[s] just because (he/she/they) (has/have) been arrested, charged with a crime, or brought to trial or for any other reason.
Points and Authorities
The wording of CALCRIM 103 improperly implies that bias against the defendant for some reasons may be permissible. (See FORECITE PG X(D)(5) [Applying Instructional Principle To One Aspect Of The Charge And Not To Another].)
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 7.5 [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 103.1 Inst 2 Modification Where Defendant Self-Surrendered
*Modify CC 103, paragraph 1, sentence 3, as follows [added language is underlined; deleted language is stricken]:
You must not be biased against the defendant[s] just because (he/she/they) (has/have) been arrested, charged with a crime, or brought to trial.
Points and Authorities
The term “arrested” suggests that the defendant was involuntarily restrained, which might in turn be viewed by the jury as consciousness of guilt evidence. (See e.g., CALCRIM 372 [Defendant’s Flight].)
Hence, “arrested” should be deleted from the instruction when the defendant self-surrendered which should provide a basis for inferring a consciousness of innocence. (See e.g., CALCRIM 372 [Absence Of Flight].)
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 7.5 [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 103.1 Inst 3 (a & b) Charging Document Does Not Permit An Inference Of Guilt
Alternative a:
The purpose of the [information] [indictment] [charges] is only to cause the defendant to be brought to trial and to advise (him/her) of the nature of the charge(s) against (him/her).
Alternative b:
An indictment is merely an accusation of a crime and is neither evidence of guilt nor does it permit an inference of guilt.
Points and Authorities
See United States v. Baker (6th Cir. 1969) 418 F2d 851, 853, cert. denied 397 US 1015 (1970); Garner v. United States (6th Cir. 1957) 244 F2d 575, 576, cert. denied, 355 US 832; Hammond v. Brown (N.D. Ohio 1971) 323 FSupp 326, 342, aff’d 450 F2d 480.
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 7.5 [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 103.1 Inst 4 Jury Not To Consider Indictment As Evidence
*Add to CC 103:
_____________________ <name of defendant> is on trial for ___________________ <charged offense> because a grand jury indicted [him] [her] on this crime. The mere fact that someone has been indicted by a grand jury may not be considered by you as any evidence that this person is guilty, and I will now explain to you why this is so.
First, for most of the grand jury proceedings, only the prosecution and grand jurors are present. The accused and his or her attorney are always excluded, and the judge is only present if the grand jury asks for specific advice.*
Second, only the prosecutor can call witnesses before the grand jury. The defendant has no right to call any witness who might testify to a different version of the facts than that presented by the prosecutor. The prosecutor has no duty to present evidence which favors the defendant unless the prosecutor is aware of such evidence and deems that it substantially helps the accused.
As you will learn during this trial, it is my responsibility as the trial judge to instruct you on the law you must apply to the facts. In a grand jury hearing there is no judge to instruct the grand jury on the law. Typically, the only information on the law the jurors receive is from the comments of the prosecutor.
For all these reasons, it would be a violation of your oath as jurors, to place any weight whatsoever on the fact that a grand jury indicted _____________________ <name of defendant>.
* See PC 934(a).
Points and Authorities
It is axiomatic that the jury should not consider the charges as evidence of the defendant’s guilt. (See People v. Frye (1998) 18 C4th 894, 957; Goldberg v. Barger (1974) 37 CA3d 987, 997; People v. Edgar (1917) 34 CA459, 467; U.S. v. Alviso (9th Cir. 1998) 152 F3d 1195.) Typically, therefore, the jury is simply instructed that the indictment or information is not evidence. (See e.g., CALCRIM 103 [Criminal Charge Is Not Evidence]; 9th Circuit Model Jury Instructions—Criminal 1.2 [The Charge—Presumption Of Innocence] (2000); Federal Judicial Center, Pattern Criminal Jury Instructions No. 1 [Standard Preliminary Instruction Before Trial] (1988).)
However, because an indictment implies that the grand jury has made a judicial determination in the matter, special dangers may be present. Therefore, the jury should not be advised that the charges were made by the grand jury. (See Alexander, Maine Jury Instructions Manual 4-2 comment. [Instruction 4C Statement To Criminal Jury At Start Of Trial] (Lexis, 1999); see also State v. Calor (ME 1991) 585 A2d 1385, 1388; People v. Sallito (NY 1992) 589 NYS2d 66, 67; People v. Evans (NY 1978) 404 NYS2d 382, 383; Uniform Criminal Jury Instructions (Oregon), UCrJI 1001, comment [General Instructions—Introduction] 10/95 (Oregon State Bar, 1998 ) [“The jury does not need to know whether the case was heard by the grand jury”].)
In some situations, however, it may not be possible to prevent the jury from knowing that an indictment was returned by the grand jury. In those situations it may be appropriate to consider an explanatory/cautionary instruction.
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 7.5 [Fair And Unbiased Jury]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CAVEAT: Counsel will need to evaluate the efficacy of such a cautionary instruction in light of the concern that it may draw undue attention to the grand jury indictment. (See generally FORECITE PG X(E)(19)(1).)
CALJIC NOTE: See FORECITE F 1.00p.
F 103.1 Inst 5 Burden Of Proof Never Shifts To Defendant
*Add to CC 103:
After the government has presented its evidence, the defendant[s] may present evidence, but [is] [are] not obliged to do so. The burden or obligation, as you will be told many times during the course of this trial, is always on the government to prove each and every element of the offense[s] charged beyond reasonable doubt. The law never imposes on a defendant in a criminal case the burden of calling any witnesses, producing any exhibits, or introducing any evidence. A defendant is presumed to be innocent of the charge[s]. The burden of proof never shifts to the defendant even after the prosecution presents its evidence. The purpose of this trial is to determine whether or not the prosecution can meet this burden.
Points and Authorities
PC 1122(a) requires that before the opening statements of counsel, the court shall instruct the jury generally concerning its basic functions, duties, and conduct. One of the foremost duties of the jury, which is required by the Due Process and Jury Trial Clauses of the federal constitution (6th and 14th Amendments), is to presume that the defendant is innocent of the charges brought by the prosecution. (See Sandstrom v. Montana (1979) 442 US 510 [61 LEd2d 39; 99 SCt 2450]; In re Winship (1970) 397 US 358 [25 LEd2d 368; 90 SCt 1068]; see also FORECITE F 100.1 Inst 1.)
The presumption of innocence is the “bedrock axiomatic and elementary principle whose enforcement lies at the foundation of the administration of our criminal law.” (In re Winship (1970) 397 US 358, 363 [90 SCt 1068; 25 LEd2d 368], quoting Coffin v. United States (1895) 156 US 432, 453 [15 SCt 394; 39 LEd 481.)
Hence, an instruction such as the one above which sets forth the charges and the duty to presume the defendant not guilty of those charges is essential. (See Devitt, et al., Fed. Jury Prac. & Instr. (1992) §10.01, p. 260; see also, U.S. v. Maccini (1st Cir. 1983) 721 F2d 840, 843: [“… I take this occasion to state to the jury one of the fundamental principles of American jurisprudence, which is that the burden is upon the government in a criminal case to prove every essential element of every alleged offense beyond a reasonable doubt. That is, the burden is upon the government to prove guilt beyond a reasonable doubt. This burden never shifts throughout the trial. The law does not require a defendant to prove his innocence or to produce any evidence. There is no burden on [the defendant] to produce any evidence.” ])
[For additional samples and briefing see FORECITE F 100.1 Inst 1.]
[For further expansion of this principle in light of the defendant’s cross-examination of prosecution witnesses see FORECITE F 103.4 Inst 6.]
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.
CALJIC NOTE: See FORECITE F 1.00d.
F 103.1 Inst 6 Arrest, Charges And Trial Are Not Evidence
ALERT: CC HISTORY – Subsequent to FORECITE’s identification of the deficiency discussed below, CALCRIM added corrective language to CC 104, paragraph 1, last sentence. (See April 2008 revision.)
*Modify CC 103, paragraph 1, sentence 3 as follows [added language is underlined; deleted language is stricken]:
Alternative a:
The fact that a criminal charge has been filed against the defendant[s] [has] [have] been arrested, charged with a crime [and/or] brought to trial is not evidence that the charge is true.
Alternative b:
[Insert CJ 1.00, paragraph 5, sentences 2-3]
Alternative c:
The fact that the defendant[s] has been arrested, that a criminal charge has been filed against the defendant[s], and that the defendant has been brought to trial is not evidence that the charge is true defendant is guilty.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
Propriety Of Instruction – By only informing the jurors that the filing of charges is not evidence CALCRIM 103 may invite the jurors to consider the fact that the defendant was arrested and brought to trial as evidence. (See generally F 370 Inst 7 [reasonable jurors may be misled by such instructions]; compare CJ 1.00, ¶ 5, sentences 2-3; see also Levenson & Ricciardulli, California Criminal Jury Instruction Handbook (West 2012-2013), § 2:2, Defense Perspective, pp. 30-31.)
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.
