SERIES 100 PRETRIAL INSTRUCTIONS
F 104.2 NOTHING ATTORNEYS SAY IS EVIDENCE
F 104.3 ATTORNEY OBJECTIONS [RESERVED]
F 104.4 DISREGARD MATTERS SEEN OR HEARD WHEN COURT NOT IN SESSION [RESERVED]
F 104.5 REPORTER’S NOTES; READBACK
F 104 NOTES
TABLE OF CONTENTS
F 104.2 NOTHING ATTORNEYS SAY IS EVIDENCE
F 104.2 Inst 1 (a & b) Jury Not To Consider Stricken Arguments Of Counsel
F 104.3 ATTORNEY OBJECTIONS [RESERVED]
F 104.4 DISREGARD MATTERS SEEN OR HEARD WHEN COURT NOT IN SESSION [RESERVED]
F 104.5 REPORTER’S NOTES; READBACK
F 104.5 Inst 1 Error To Imply That Jurors’ Recollection Or Notes Are Per Se Less Accurate Than The Reporter’s Notes
F 104.5 Inst 2 Any Juror May Request A Read Back
F 104 NOTES
F 104 Note 1 Consideration Of Defendant’s Medication, Culture, Etc. In Evaluating Demeanor At Trial
F 104 Note 2 Stipulation: Impact On Duty To Produce Evidence
F 104 Note 3 Juror Note Taking: Advisement That Argument Of Counsel May Not Be Readback To The Jury
Return to Series 100 Table of Contents.
F 104.2 Nothing Attorneys Say Is Evidence
F 104.2 Inst 1 (a & b) Jury Not To Consider Stricken Arguments Of Counsel
*Add to CC 104:
Alternative a:
Do not consider for any purpose any argument of counsel that was stricken by the court; treat it as though you had never heard of it.
Alternative b:
Do not consider for any purpose any offer of evidence that was rejected or any evidence or argument of counsel that was stricken by the court; treat it as though you had never heard of it.
Points and Authorities
Although CALCRIM 104, paragraph 2, states that arguments of counsel are not evidence (see People v. Barajas (1983) 145 CA3d 804, 809; People v. Stewart (1959) 168 CA2d 57, 60-61), the instruction itself does not admonish the jury to disregard arguments of counsel which have been stricken by the court. Hence, CALCRIM 104 (and CALCRIM 222) should be modified to add arguments of counsel to the admonition.
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.
CALJIC NOTE: See FORECITE F 1.02c.
F 104.3 Attorney Objections [Reserved]
F 104.4 Disregard Matters Seen Or Heard When Court Not In Session [Reserved]
F 104.5 Reporter’s Notes; Readback
F 104.5 Inst 1 Error To Imply That Jurors’ Recollection Or Notes Are Per Se Less Accurate Than The Reporter’s Notes
*Add to end of CC, paragraph 5, as follows:
After hearing the court reporter’s record, each individual juror must decide what was said based on his or her recollection, any notes taken by that juror and the court reporter’s record. You are not bound to accept the court reporter’s record over your own individual recollection and/or notes.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Need For Instruction – There is no legal basis for requiring a juror to accept the court reporter’s notes over the juror’s own recollection and/or notes. (See e.g., People v. Smith (2005) 135 CA4th 914, 925 [assuming juror notes were “accurate”].) To the contrary, the cases and Rules of Court recognize the fallibility of the court reporter’s record by providing comprehensive procedures to correct it. (See e.g., Calif. Rules of Court Rule 35.2 [Certifying The Trial Record For Accuracy]; People v. Huggins (2006) 38 C4th 175, 191 [“punctuation supplied by the court reporter failed to accurately reflect the meaning conveyed …”]; People v. Coley (1997) 52 CA4th 964, 972; People v. Williams (1994) 30 CA4th 1758, 1764-65 [court reporter’s transcription of oral instructions is not an adequate substitute for copies of the written instructions]; Little v. U.S. (10th Cir. 1934) 73 F2d 861, 864 [recognizing the reality that the reporter may make “a mistake in the reading of … shorthand symbol[s] …”] see also Anne Graffam Walker, Language at Work in the Law: The Customs, Conventions, and Appellate Consequences of Court Reporting, in LANGUAGE IN THE JUDICIAL PROCESS 203 (Judith N. Levi & Anne Graffam Walker eds., 1990).) Therefore, the jurors should be free to rely on their own recollection of the testimony even if it conflicts with the reporter’s notes.
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 6.7 [Reliability: Non-Capital Charge]
FORECITE CG 7.1 [Right To Jury Consideration Of The Evidence]
FORECITE CG 7.3 [Consideration Of Matters Not Admitted Into Evidence]
FORECITE CG 7.8 [Right To Individual Juror Determination]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 104.5 Inst 2 Any Juror May Request A Read Back
*Modify CC 104, paragraph 5, sentence 2 and 3, as follows [added language is underlined; deleted language is stricken]:
If you decide that it is necessary, you any juror is uncertain about what the testimony was on a point under consideration, that juror may ask that the court reporter’s record be read to you. You must accept the court reporter’s notes as accurate.
Points and Authorities
Right To Readback—See FORECITE F 102 Inst 2.
Individual Juror Request Of Readback—Because a verdict of guilt requires the assent of each juror, each juror should be free to individually evaluate the record.
Hence, an individual juror should be permitted to request a readback of testimony.
See FORECITE F 100.7 Inst 2.
*Jurors Need Not Accept Reporter’s Record:* See FORECITE F 104.5 Inst 1.
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 6.7 [Reliability: Non-Capital Charge]
FORECITE CG 7.1 [Right To Jury Consideration Of The Evidence]
FORECITE CG 7.8 [Right To Individual Juror Determination]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
See FORECITE F 102 Inst 2.
F 104 NOTES
F 104 Note 1 Consideration Of Defendant’s Medication, Culture, Etc. In Evaluating Demeanor At Trial
STRATEGY NOTE: Exit interviews with jurors suggest that there is a very real possibility the jury will notice and rely on the defendant’s appearance, demeanor and conduct in the courtroom even if he or she doesn’t testify. Hence, counsel should give consideration as to how to advise the client in this regard. Additionally, extraneous factors which could impact the defendant’s appearance (e.g., medications, cultural characteristics, etc.) should be investigated and considered, both in advising the client and in formulating cautionary instruction requests. (See also FORECITE F 104 Note 1.)
CALJIC NOTE: See FORECITE F 2.60 n4.
F 104 Note 2 Stipulation: Impact On Duty To Produce Evidence
PRACTICE NOTE: A party is entitled to rely on a stipulation to refrain from producing evidence on the facts stipulated. (See e.g., People v. Dyer (1988) 45 C3d 26, 75 [prosecution properly relied on defense stipulation in not proving fact of prior conviction].)
CALJIC NOTE: See FORECITE F 1.02 n1.
F 104 Note 3 Juror Note Taking: Advisement That Argument Of Counsel May Not Be Readback To The Jury
CALCRIM 104, paragraph 5, instructs the jurors as follows:
The court reporter is making a record of everything said during the trial. If you decide that it is necessary, you may ask that the court reporter’s notes be read to you. You must accept the court reporter’s notes as accurate.
This language incorrectly suggests that the jurors may receive a readback of the arguments of counsel. Therefore, it may be appropriate to modify or supplement this language. (See FORECITE F 102 Inst 3; see also FORECITE F 102 Inst 4 [Juror Note Taking: Juror’s Right To Take Notes On Counsel’s Argument].
