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 6 Introductory Instruction: Reactions To Evidence Must Be Disregarded
*Add to CC 104:
Reactions to evidence introduced during the trial, if any, by the judge, court personnel, attorneys, defendant or spectators do not constitute evidence and cannot be considered by the jury. It is your duty to disregard any such observations.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency – The reaction to the evidence by any of the parties, attorneys, the judge or spectators is not evidence. (See EC 140.) Accordingly, because reactions to the evidence are not uncommon (see Levenson & Ricciardulli, California Criminal Jury Instruction Handbook (West 2012-2013), § 2:2, Authors’ Notes, p. 32) and can be highly prejudicial (see People v. Lucero (1988) 44 C3d 1006, 1022-24), the jury should be cautioned by an instruction similar to the one set forth above. (See also, U.S. v. Schuler (9th Cir. 1987) 813 F2d 978, 979-82 [improper for prosecutor to comment on courtroom behavior of non-testifying defendant].)
See also FORECITE F 104.1 Inst 7; F 3530 Inst 4.
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 7.3 [Consideration Of Matters Not Admitted Into Evidence]
FORECITE CG 9.6 [Spectator Misconduct]
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 1.00i.
F 104.1 Inst 7 Jurors To Disregard Non-Testifying Defendant’s Courtroom Appearance, Conduct And Demeanor
*Add to CC 104:
You are admonished to disregard the defendant’s appearance, demeanor and conduct in the courtroom. Do not consider it for any purpose.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency – It has been observed that jurors “often observe the defendant’s demeanor during trial and, therefore, a special instruction prohibiting the jurors from considering such demeanor may be appropriate.” (Levenson & Ricciardulli, California Criminal Jury Instruction Handbook (West 2011-2012), § 2:2, Authors’ Notes, p. 31.) However, CALCRIM 104 does not specifically address whether the demeanor or conduct of a non-testifying defendant should be considered by a jury. There are several reasons why a special instruction precluding the jurors from considering such demeanor or conduct should be given.
First, such non-witness demeanor or conduct is not “relevant evidence” because it does not bear upon any material issue at trial. (People v. Garcia (1984) 160 CA3d 82, 91.) Nor can it be considered by the jury as demeanor evidence because such evidence is only relevant as it bears on the credibility of a witness who has testified. (Ibid.; EC 780.)
Second, the defendant’s demeanor or conduct is not evidence which has been adduced at trial. The due process clause of the federal constitution (5th and 14th Amendments) “encompasses the right not to be convicted except on the basis of evidence adduced at trial.” (U.S. v. Schuler (9th Cir. 1997) 813 F2d 978, 981.) “[O]ne accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds . . . not adduced as proof at trial.” (Taylor v. Kentucky (1978) 436 US 478, 485 [56 LEd2d 468; 98 SCt 1930]; see also People v. Boyette (2002) 29 CA4th 381, 434 [prosecutor committed misconduct insofar as she suggested in her argument that the jury should find appellant unreliable based on his courtroom demeanor]; U.S. v. Carroll (4th Cir. 1982) 678 F2d 1208, 1210; Lee v. State (1997) 964 SW2d 3, 14, 17 [“the State must confine its jury argument concerning defendant’s guilt to statements based upon properly admitted evidence”].)
Third, jury reliance on the defendant’s demeanor or conduct impugns the defendant’s right not to testify (5th and 14th Amendments), right to trial by jury, and right to counsel, including the right to assist his counsel in his or her own defense (6th and 14th Amendments). (U.S. v. Carroll (4th Cir. 1982) 678 F2d 1208, 1210 [if defendant elects not to testify, the fact of his presence and non-testimonial behavior in the courtroom could not be taken as evidence of his guilt].)
In sum, ordinarily the jurors should not be permitted to consider the defendant’s nontestimonial demeanor or behavior at either the guilt or penalty trials. (See People v. Houston (8/2/2012, S035190) 54 CA4th 1186, 1223 [“Defendant is correct that a prosecutor many not comment on a defendant’s demeanor or behavior during the guilt phase unless it is to tell the jury to ignore a defendant’s demeanor or behavior. (E.g., People v. Boyette (2002) 29 CA4th 381, 434.) . . . We agree with defendant . . . That it was misconduct for the prosecutor to ask the jury to note defendant’s lack of crying, which in this context implied a lack of remorse.”]; compare People v. Elliott (2012) 53 CA4th 535, 588-589 [“A defendant’s courtroom demeanor and behavior are proper subjects for comment during penalty phase argument to the jury. [Citations.]”]; cf. People v. Heishman (1988) 45 CA3d 147 [demeanor relevant to credibility where defendant put character in issue]; People v. Smith (2007) 40 CA4th 483, 525 [recognizing, but not resolving, the issue of whether it is misconduct for a jury to discuss a defendant’s off-the-stand demeanor during sanity phase deliberations].)
See also FORECITE F 104.1 Inst 6; F 104.1 Inst 10.
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 7.3 [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.
NOTES
This instruction would seem to be particularly important in the penalty phase of a capital case where factors such as the defendant’s demeanor – e.g., whether or not he looks remorseful – could easily be relied upon by the jury in determining whether or not to impose a sentence of death. Post-verdict juror interviews establish that the jurors may heavily rely upon the defendant’s “unremorseful” demeanor to discredit the defense or impose death even though the defendant never took the stand. (See FORECITE F 104.1 Inst 8.)
CALJIC NOTE: See FORECITE F 2.60b.
F 104.1 Inst 8 Jury May Not Consider Non-Testifying Defendant’s Courtroom Appearance, Conduct Or Demeanor To Find Lack Of Remorse
See FORECITE F 761.2 Inst 14.
CALJIC NOTE: See FORECITE F 2.60c.
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
*Add to CC 104:
You may only consider the defendant’s demeanor, conduct or appearance only while [he] [she] [is] [was] testifying and not at any other time.
The defendant’s demeanor, conduct, or appearance may only be considered for the purpose of assessing [his] [her] [credibility] [character] [remorse] [_______].
Points and Authorities
When the defendant does not testify, the jury should be precluded from considering, in any manner, its observations of the defendant’s conduct or demeanor during trial. (See FORECITE F 104.1 Inst 7 and F 355 Inst 4.)
When the defendant does testify, the jury’s consideration of demeanor and conduct should be limited to: (1) only demeanor or conduct while testifying; and (2) only for relevant purposes.
For example, the jury should not be allowed to consider in court observations of the defendant at the counsel table before or after the defendant testified. Such observations are not properly admitted evidence. (See FORECITE F 104.1 Inst 7.)
Further, unless the defendant’s demeanor has been put in issue (People v. Heishman (1988) 45 C3d 147, 197 [behavior relevant to credibility where defendant put character in issue]), the only relevance of the defendant’s demeanor when testifying is on the issue of credibility.
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 1.4 [Right To Testify]
FORECITE CG 7.3 [Consideration Of Matters Not Admitted Into 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.
CALJIC NOTE: See FORECITE F 2.60d.
F 104.1 Inst 10 Conduct Of Court Observers/Spectators Must Be Disregarded
*Add to CC 104:
The conduct of any courtroom observers or spectators is not evidence. Do not consider such conduct for any purpose.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency – The conduct of spectators or observers is not evidence. (See EC 140.) Accordingly, because jurors often observe the conduct of court spectators and such observations can be highly prejudicial (see People v. Lucero (1988) 44 C3d 1006, 1022-24), the jury should be cautioned to disregard such observations. (See Levenson & Ricciardulli, California Criminal Jury Instruction Handbook (West 2011-2012), § 2:2, Authors’ Notes, p. 31; see also U.S. v. Schuler (9th Cir. 1987) 813 F2d 978, 979-82 [improper for prosecutor to comment on courtroom behavior of non-testifying defendant].)
See also FORECITE F 104.1 Inst 6 and Inst 7.
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 7.3 [Consideration Of Matters Not Admitted Into Evidence]
FORECITE CG 9.6 [Spectator Misconduct]
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 1.00i.
