SERIES 100 PRETRIAL INSTRUCTIONS
F 104.1 EVIDENCE DEFINED; JURY MUST ONLY CONSIDER EVIDENCE
TABLE OF CONTENTS
F 104.1 Inst 1 (a-e) Improper To Define Jurors’ Duty As Deciding “What The Facts Are”
F 104.1 Inst 2 (a & b) Requirement That Jurors “Must Decide What The Facts Are” As Unduly Coercive
F 104.1 Inst 3 Judicial Notice
F 104.1 Inst 4 (a & b) Cautionary Instruction Regarding Charts, Graphs, Summaries, Etc.
F 104.1 Inst 5 (a-c) Stipulated Facts
F 104.1 Inst 6 Introductory Instruction: Reactions To Evidence Must Be Disregarded
F 104.1 Inst 7 Jurors To Disregard Non-Testifying Defendant’s Courtroom Appearance, Conduct And Demeanor
F 104.1 Inst 8 Jury May Not Consider Non-Testifying Defendant’s Courtroom Appearance, Conduct Or Demeanor To Find Lack Of Remorse
F 104.1 Inst 9 Jury May Only Consider Testifying Defendant’s Demeanor, Conduct Or Appearance While He/She Is Testifying And Only As To Matters At Issue
Return to Series 100 Table of Contents.
F 104.1 Inst 1 (a-e) Improper To Define Jurors’ Duty As Deciding “What The Facts Are”
Alternative a:
*Modify CC 104, paragraph 1, sentence 1, as follows [added language is underlined; deleted language is stricken]:
You must decide, what the facts are in this case if you can, whether or not the prosecution has met its burden of proof based on the evidence presented at trial.
Alternative b:
*Replace CC 104, sentence 1, with the following:
Even if you are uncertain whether or not [the defense evidence] [the testimony of a defense witness] is truthful in whole or part, you are not obligated to convict. If, after considering all the evidence, the defense evidence [or any part of it] leaves you with a reasonable doubt as to any element of the charge you must vote to acquit.
On the other hand, if you are uncertain whether or not to believe a prosecution witness whose testimony is essential to the proof of any element of the charge, you must vote to acquit.
Alternative c:
*Replace CC 104, sentence 1, with the following:
The defense is not obligated to prove the truth of its evidence. Instead the prosecution must prove that its evidence is sufficiently credible, when considered in light of the defense evidence, to prove every element of the charge beyond a reasonable doubt.
Alternative d:
*Replace CC 104, sentence 1, with the following:
The defense has no burden to prove the truthfulness or credibility of defense witnesses and/or the falsity or lack of credibility of the prosecution’s witnesses. Instead, the prosecution has the burden of proving that the evidence is sufficiently credible to prove every element of the charge beyond a reasonable doubt. If, after considering all the evidence, any juror who has a reasonable doubt as to any [essential fact] [element of the charge] must give the defendant the benefit of that doubt and vote to acquit.
Alternative e:
*Replace CC 104, sentence 1, with the following:
If you are uncertain whether or not to believe a prosecution witness whose testimony is essential to the proof of any element of the charge, you must vote to acquit.
Points and Authorities
No Duty To DecideC See FORECITE F 100.7 Inst 1.
See also FORECITE F 100.7 Inst 2; FORECITE PG IX(J).
Improper To Define Jurors’ Duty As “Deciding What The Facts Are” Or Deciding What Is “True” Or Where “The Truth” Lies—As a legal principle the presumption of innocence is straight forward: The prosecution has the burden of proving every essential fact beyond a reasonable doubt, and the defendant has no burden to produce any evidence at all. (In re Winship (1970) 397 US 358 [90 SCt 1068; 25 LEd2d 368]; U.S. v. Maccini (1st Cir. 1983) 721 F2d 840.)
However, in practice this hallowed principle may be counter-intuitive to jurors who are naturally prone to view their role as seeking “the truth.” Therefore it is important for the jury instructions to assure the jurors understand that ” … the question in a criminal case is not whether the defendant committed the acts of which he is accused. The question is whether the Government has carried its burden to prove its allegations …” (Mitchell v. U.S. (1999) 526 US 314, 328 [119 SC. 1307; 143 LEd2d 424].) In other words, the instructions should avoid language that perpetuates the juror’s intuitive inclination to make the trial a search for the truth.
Another more subtle example occurs when a defense theory such as alibi or third-party guilt is presented. The very nature of such a defense theory—e.g., “I was not there” or “Joe Doe committed the crime”—tends to frame the issue in terms of seeking the truth. Hence, it is crucial in such cases, to define the relationship between the presumption of innocence and the defense theoryC i.e., “If you have a reasonable doubt that the defendant was present you must vote to acquit.” (See e.g., Lundy, “Third Party Guilt: The Crucial Role Of Defense Theory Instructions,” July 2003, www.juryinstruction.com.)
Therefore, instructing the jury that they must “decide what the facts are” improperly reinforces the jurors’ misconception about the trial being a truth seeking forum. Of course, it is difficult to not address witness credibility in terms of who and what to believe. Yet asking the jurors to decide whether to believe or not believe a witness is just another way of asking them to determine “the truth.” For example, if the key prosecution witness has identified the defendant as the culprit then juror belief of that witness would establish the truth of the charges. And similarly, if the defense theory is alibi, disbelief of the defense alibi witness could pre-ordain a guilty verdict. Hence, focusing the jurors’ inquiry on which witnesses to “believe” or “what the facts are” can improperly shift the burden of proof.
For example, in Cool v. United States (1972) 409 US 100 [34 LEd2d 335; 93 SCt 354] (the jurors were instructed to ignore the defense theory evidence unless they believed beyond a reasonable doubt that it was true. The Supreme Court held that the defendant’s right to present exculpatory testimony to the jury is “impermissibly obstruct[ed]” if such testimony is “totally exlud[ed] …” (Cool v. United States, 409 US 100, 104.) “Moreover [such a result] also has the effect of substantially reducing the Government’s burden of proof … By creating an artificial barrier to the consideration of relevant defense testimony … [it] reduced the level of proof necessary for the Government to carry its burden. Indeed … the effect … is to require the defendant to establish his innocence …” (Cool v. United States, 409 US at 104.) “[S]uch a requirement is plainly inconsistent with the constitutionally rooted presumption of innocence …” (Ibid.)
It follows that jury instructions may be constitutionally deficient if they are read to: 1) authorize the jurors to ignore a defense witness unless the defendant proves the witness to be truthful or 2) authorize the jurors to convict based on a prosecution witness simply because the defense has not proven his or her lack of credibility. Instead, the jury instructions should be related to the presumption of innocence in the same way that defense theory instructions are.
Furthermore, the instructions should also incorporate the well established principle that witness credibility is not necessarily an all-or-nothing preposition and that some portions of the testimony of a witness may be given more or less weight than others. (See e.g, O’Malley, Grenig, & Lee, Federal Jury Practice and Instructions, 15.01 [Credibility Of Witnesses—Generally] (West, 5th ed. 2000); see also 1st Circuit Pattern Jury Instructions—Criminal 1.06 [Credibility Of Witnesses] (1998); 6th Circuit Pattern Jury Instructions—Criminal 1.07 [Credibility of Witnesses] (1991); 8th Circuit Model Jury Instructions— Criminal 1.05 [Credibility Of Witness] (2000); 9th Circuit Model Jury Instructions—Criminal 1.7 [Ruling Of Objections] (2000); 11th Circuit Pattern Jury Instructions—Criminal Basic 5 [Credibility of Witnesses] & 1 (1997); Iowa Criminal Jury Instructions 100.5 [Evidence] (Iowa State Bar Association, 1991); Ohio Jury Instructions, Volume 4 – Criminal, 4 OJI 405.20, [Credibility] & 4 (Anderson, 2000).)
Identification Of Parties—See FORECITE F 100.2 Note 1.
F 104.1 Inst 2 (a & b) Requirement That Jurors “Must Decide What The Facts Are” As Unduly Coercive
*Modify CC 104, paragraph 1, sentence 1, as follows:
Alternative a:
You must attempt to decide what the facts are in this case.
Alternative b:
You must decide what the facts are in this case if you can.
Points and Authorities
See FORECITE F 100.7 Inst 1.
CAVEAT: It is improper to define the jurors’ duty as deciding “what the facts are.” (See FORECITE F 104.1 Inst 1.)
Identification Of PartiesC See FORECITE F 100.2 Note 1.
F 104.1 Inst 3 Judicial Notice
*Add to CC 104:
Even though no evidence has been introduced about it, I have decided to accept as proved the fact that __________ <insert fact judicially noticed>. I believe that this fact is of such common knowledge <or insert alternative ground per EC 451 – EC 453> that no evidence need be presented about it. Thus, you must treat it as proved, even though no evidence was brought out on the point.
Points and Authorities
EC 457 provides that if a matter is judicially noticed which would otherwise have been for determination by the jury, “the court may, and upon request shall, instruct the jury to accept as a fact the matter so noticed.” The above instruction is adapted from the Fed. Jud. Ctr., Pattern Crim. Jury Instructions (1988), Instr. # 7, p. 13.
People v. Moore (1997) 59 CA4th 168, 179 considered the matter of how the jury should be instructed upon a fact which the trial court has judicially noticed. The court distinguished those cases holding that it is improper to direct a verdict on an element of the charge on the basis that, where judicial notice is mandatory, the indisputable fact must be accepted and no evidence can be offered to dispute it. (Moore, 59 CA4th at 185.) Accordingly, the jury was correctly instructed to accept the judicially noticed matter as true.
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 7.1 [Right To Jury Consideration Of The Evidence]
FORECITE CG 7.3 [Consideration Of Matters Not Admitted Into Evidence]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
NOTE: No Judicial Notice Of Facts From Published Or Unpublished Appellate Opinions. A trial court cannot take judicial notice under EC 459 of facts set forth in published appellate opinions. Such facts are hearsay. A court may only take judicial notice of facts that result from adversarial proceedings. (Lockley v. Law Office of Cantrell, Green, Pekich et al. (2001) 91 CA4th 875; see also People v. Rubio (1977) 71 CA3d 757 disapproved on other grounds in People v. Freeman (1978) 22 C3d 434, 438-439 [error for trial court to take judicial notice of magistrate’s minute order reflecting defendant’s nonappearance in municipal court to prove flight]; People v. Tolbert (1986) 176 CA3d 685, 690 [error to take judicial notice of magistrate’s factual findings at preliminary hearing for their truth].) A trial court also cannot take judicial notice of facts in unpublished opinions, for the additional reason that they are unpublished. (People v. Webster (1991) 54 C3d 411, 428 fn 4; see also Eisenberg, Horvitz & Weiner, “Civil Appeals and Writs” (2000 ed.), §5:158.1 at pp. 5-43 – 5-44 [“Requests for judicial notice cannot be used to circumvent appellate rules and procedures (such as the prohibition against citing unpublished opinions).” ])
NOTE: Appellate Notice Of Records In Another Case. Although the court can take notice of records in another proceeding, it may not take notice of the truth of the contents in the file. (People v. Esayian (2003) 112 CA4th 1031; see also Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 C4th 1057, 1062; People v. Woodell (1998) 17 C4th 448, 455.)
CALJIC NOTE: See FORECITE F 1.02a.
F 104.1 Inst 4 (a & b) Cautionary Instruction Regarding Charts, Graphs, Summaries, Etc.
*Add to CC 104 when appropriate:
Alternative a:
Charts and other summary materials utilized by the attorneys for the purpose of summarizing the evidence are no better than the books or the testimony upon which they are based. They are an interpretation of the evidence by the party who submitted them. It is for you to decide whether the charts, schedules or summaries correctly present the data set forth in the testimony and exhibits upon which they are based.
Alternative b:
Certain charts [and] [or] summaries have been received into evidence to illustrate the testimony of some witnesses. Charts and summaries are an interpretation of the evidence by the party who submitted them and are only as good as the underlying evidence that supports them. You should, therefore, give them only such weight as you think the underlying evidence deserves.
Points and Authorities
Pedagogical summaries in the form of charts, graphs, schedules, etc. should only be introduced at trial if adequate protections are provided to minimize the prejudice which may flow from the jury’s improper use of the summaries. (See U.S. v. Johnson (4th Cir. 1995) 54 F3d 1150, 1160, fn 10.) For example, the use of such charts is not uncommon in capital cases where the prosecution seeks to summarize the aggravating and mitigating factors. (See e.g, People v. Montiel (1993) 5 C4th 877, 939, fn 36; People v. Hamilton (1989) 48 C3d 1142, 1185; People v. Guzman (1988) 45 C3d 915, 971.) Assuming the use of such charts is permissible, they “present a serious danger that the jurors will take into their deliberations a misleading impression …” (People v. Ghent (1987) 43 C3d 739, 782, concurring opinion.) It is proper for courts to admit in evidence illustrative charts and maps. (See People v. Watts (1926) 198 C 776, 790.) On the other hand, charts which are merely a summary of the testimony “merely make it more convenient for the trier of fact to understand [the evidence]” and, therefore, it normally should be of little consequence whether or not the chart is formally admitted into evidence. (See Estate of Busted (1951) 105 CA2d 14, 21; see also, U.S. v. Johnson, 54 F3d at 1159.) Therefore, summary charts should be used and/or introduced into evidence “only if adequate protections are provided to minimize prejudice …” (U.S. v. Johnson, 54 F3d at 1160, fn 10.) Moreover, the instructions, when appropriate, should also “clearly inform the jury that the chart represent[s] the [offering party’s] analysis.” (U.S. v. Johnson, 54 F3d at 1161.)
The instruction set forth above is adapted from an instruction relied upon in U.S. v. Goldberg (2nd Cir. 1968) 401 F2d 644, 647-48 and approved in U.S. v. Johnson, 54 F3d at 1160-61. The alternative instruction set forth above is adapted from the Ninth Circuit’s Manual of Model Jury Instructions, Criminal (1995), §4.18; see also, Devitt, et al., Fed. Jury Prac. & Inst. (1992) §1402 and §7209.
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 5.1 [Highly Prejudicial Or Inflammatory Evidence]
FORECITE CG 7.1 [Right To Jury Consideration Of The Evidence]
FORECITE CG 7.4 [Juror Consideration Of Evidence For An Improper Purpose]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
USE NOTE
To avoid giving unwarranted emphasis to a chart or summary, a cautionary instruction should be given both when the chart or summary is presented and before deliberations. (See FORECITE F 100.1 Inst 2.)
PRACTICE NOTES
Additional Issues: U.S. v. Johnson identified several other considerations regarding pedagogical summaries in the form of charts, graphs, schedules, etc., including the following:
1. The rules of evidence regarding summaries of voluminous documents and pedagogical summaries should be the same for prosecutors and defense counsel.
2. A special danger arises when a summary witness is also used as an expert.
3. When a summary chart is used, the trial judge must provide an opportunity for cross-examination of its preparer.
4. Trial judges must be sensitive to the fact that summary charts and witnesses may be offered not to help the jury, but to provide an extra closing argument at the end of a case in chief instead of at the end of the case.
Permissibility Of Summary Witnesses: The dissenting judge in U.S. v. Johnson argued that the use of summary witnesses is always more prejudicial than probative. When the dissenting judge’s analysis is combined with the majority’s observation that “[t]he dangers inherent in using a summary witness in a federal criminal prosecution to support the government’s case-in-chief are plain,” the case for excluding summary witnesses might be a strong one. There is no logical reason to assume that the concerns about such witnesses are confined to federal criminal prosecutions or to assume that state criminal proceedings are immune to the same concerns.
In California, summary charts have been permitted (see Points and Authorities above), but no case has directly addressed the issue. Nor has any case considered whether the prejudice and resultant danger of an unreliable result from use of a summary witness or chart could violate federal constitutional principles (e.g., due process (14th Amendment); trial by jury (6th and 14th Amendments); cruel and unusual punishment in death cases (8th Amendment).
CALJIC NOTE: See FORECITE F 1.02d.
F 104.1 Inst 5 (a-c) Stipulated Facts
*Add to CC 104:
ALTERNATIVE FORMS
Alternative a:
Stipulations of Testimony
Earlier you were told that the prosecution and the defendant agreed, or stipulated, that __________ <insert stipulated testimony>. That would be __________’s testimony if [he] [she] were called as a witness. You will consider that to be the testimony of __________ as if [he] [she] appeared in court and so testified.
Alternative b:
Stipulations of Fact
Earlier you were told that the prosecution and the defendant agreed, or stipulated, that __________ <insert stipulated fact>. This means simply that both sides accept the fact that __________. There is no disagreement over that, so there was no need for evidence by either side on that point. You must accept that as fact, even though nothing more was said about it one way or the other.
Alternative Form c:
Instruction Concerning Admissions And Stipulations As Established Facts
Neither side is required or permitted to introduce at the trial any evidence with respect to an issue of fact that has been admitted by the parties or stipulated to in open court. You are to assume such admissions as established facts.
Points and Authorities
See Fed. Jud. Ctr., Pattern Crim. Jury Instructions (1988), Instr. # 11, p. 18; Instr. 12, p. 19; EC 353; EC 402 Suggested Forms.
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 7.1 [Right To Jury Consideration Of The Evidence]
FORECITE CG 7.3 [Consideration Of Matters Not Admitted Into Evidence]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
RESEARCH NOTE: See “Stipulations to Exclude Other Act Evidence: What Is Adequate?,” by Stephen A. Saltzburg, ABA Criminal Justice, Vol. 10, No. 1, (Spring 1995) pp. 39-42; “Stipulations by the Defense to Remove Other Act Evidence,” by Stephen A. Saltzburg, ABA Criminal Justice, Vol. 9, No. 4, (Winter 1995) pp. 35-39; “Stipulations, Part III, Convicted Felons on Trial,” by Stephen A. Saltzburg, ABA Criminal Justice, Vol. 10, No. 2, (Summer 1995) pp. 31-34.
CALJIC NOTE: See FORECITE F 1.02b.
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