SERIES 100 PRETRIAL INSTRUCTIONS
F 105.1 JURORS DUTY TO JUDGE CREDIBILITY OF WITNESSES
TABLE OF CONTENTS
F 105.1 Inst 1 Each Juror Must Individually Judge Credibility
F 105.1 Inst 2 Improper To Define Jurors Duties In Terms Of Deciding The Truth Based Only On Their Common Sense And Experience
F 105.1 Inst 3 Cautionary Instruction Regarding Juror Use Of Common Sense And Experience To Trump Expert Opinion
F 105.1 Inst 4 (a & b) Juror Reliance On Common Sense Or Experience May Compromise The Reasonable Doubt Standard
F 105.1 Inst 5 Exceptions To Instruction That Each Witness Is To Be Judged By The Same Standard
F 105.1 Inst 6 Expressing Witness Evaluation In Terms Of “Belief” As Misleading
F 105.1 Inst 7 No Bias In Favor Of Law Enforcement Witness
F 105.1 Inst 8 (a & b) Witnesses: “Same Standard” Language Is Confusing And Misleading
F 105.1 Inst 9 Credibility of Witness: Applicability To Out-Of-Court Statements
F 105.1 Inst 10 Believability Of Witness: Jury May Accept A Portion Of The Testimony
F 105.1 Inst 11 Jurors Do Not Have To Choose Between Prosecution And Defense Evidence
Return to Series 100 Table of Contents.
F 105.1 Inst 1 Each Juror Must Individually Judge Credibility
*Modify CC 105, paragraph 1, sentence 1, as follows [added language is underlined; deleted language is stricken]:
You Each of you alone must judge the credibility or believability of the witnesses.
Points and Authorities
By addressing the jurors collectively, CALCRIM 105 fails to assure that each juror understands his or her right and duty to individually evaluate the witnesses.
This instruction is required by the federal constitutional rights to due process and fair trial by jury (5th, 6th and 14th Amendments). “Constitutional guarantees of due process and trial by jury require that a criminal defendant be afforded the full protection of a jury unfettered, directly or indirectly. [Citation.]” (U.S. v. Spock (1st Cir. 1969) 416 F2d 165, 182.) This means that each individual juror must fully and fairly deliberate and follow their conscientiously held beliefs in voting on a verdict during deliberations. (Allen v. U.S. (1896) 164 US 492 [17 SCt 154; 41 LEd 528]; People v. Gainer (1977) 19 C3d 835, 842-47 [judge must not admonish minority jurors to reconsider their position in light of the majority] [bias of even a single juror requires reversal]; U.S, v, Nelson (2nd Cir. 2002) 277 F3d 164 [single biased juror violated 6th and 14th Amendments]; Rodriguez v. Marshall (9th Cir. 1997) 125 F3d 739, 750-51 [judge reminded jurors not to surrender their sincerely held beliefs under pressure from the majority]; see also Jiminez v. Myers (9th Cir. 1993) 40 F3d 976, 981; Dickson v. Sullivan (9th Cir. 1988) 849 F2d 403, 406 [even if “only one juror was unduly biased or improperly influenced (by exposure to facts not introduced in evidence, defendant) was deprived of his Sixth Amendment right to an impartial panel” of twelve unprejudiced jurors]; In re Hitchings (1993) 6 C4th 97.)
Each juror‘s responsibility to individually evaluate and decide the issues presented by the evidence is fundamental. “‘Because a defendant … has a right to a unanimous verdict of 12 impartial jurors [citations], it is settled that a conviction cannot stand if even a single juror has been improperly influenced.‘ [Citations.]” (People v. Holloway (1990) 50 C3d 1098, 1112; see also PC 1163 [“When a verdict is rendered, and before it is recorded, the jury may be polled, at the request of either party, in which case they must be severally asked whether it is their verdict, and if any one answer in the negative, the jury must be sent out for further deliberation” ]; People v. McIntyre (1990) 222 CA3d 229, 232-33 [verdict of guilt may not be returned if even a single juror believes that the defendant was entrapped]; Davis v. Georgia (1976) 429 US 122 [50 LEd2d 339; 97 SCt 399] [holding death sentence unconstitutional where a single juror excluded in violation of Witherspoon v. Illinois (1968) 391 US 510 [20 LEd2d 766; 88 SCt 1770]; People of Territory of Guam v. Marquez (9th Cir. 1992) 963 F2d 1311, 1314-15 [each juror must be able to individually read and understand the instructions].)
Accordingly, the instructions should, as much as possible, avoid using the collective “you” and instead frame the principles in terms of individual juror responsibility. (See e.g., CALJIC 17.40; CALCRIM 3550.)
See also FORECITE F 100.7 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 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 105.1 Inst 2 Improper To Define Jurors Duties In Terms Of Deciding The Truth Based Only On Their Common Sense And Experience
*Modify CC 105, paragraph 1, sentence 1 and 2, as follows [added language is underlined; deleted language is stricken]:
Each of you alone must judge evaluate the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, This means that you must use your common sense and experience to evaluate the truthfulness and accuracy of a witness in light of all the relevant factors and the other evidence .
Points and Authorities
Jurors Should “Evaluate” The Testimony By “Considering” Its Truth And Accuracy—CALCRIM 105 improperly describes the jurors‘ duties in terms of deciding and judging whether the testimony is true and accurate. (See FORECITE F 104.1 Inst 1.)
Common Sense—If the jurors are to be instructed to rely on their common sense and experience (but see FORECITE F 105.1 Inst 3 and 105.1 Inst 4) the instruction should also reaffirm the need to consider all the circumstances and other evidence. (See e.g., CALCRIM 103; CALCRIM 330 [“In evaluating the child’s testimony, you must consider all of the facts surrounding that testimony …“ ].) Otherwise there is a danger that the role of common sense and experience will be given under emphasis. (See FORECITE F 315.1.1 Inst 2.)
Identification Of Parties—See FORECITE F 100.2 Note 1.
F 105.1 Inst 3 Cautionary Instruction Regarding Juror Use Of Common Sense And Experience To Trump Expert Opinion
*Add after CC 105, paragraph 1, sentence 2:
However, you should use caution before rejecting the testimony of witness[s] ______________ <insert names of expert witnesses> on the basis of your common sense and experience. Specialized study and research may reveal truths which are contrary to common sense and ordinary experience.
Points and Authorities
Common Sense—Typically the jurors are permitted to rely on their own common sense and experience. However, in some situations, common experience or understanding may be contrary to reality. For example, there are matters relating to eyewitness identification which are contrary to what the understandings of the general public are. (See generally FORECITE F 315 Note 13.) Hence, “an instruction which tells the jury to draw on their ‘life experiences’ or ‘common sense’ may be encouraging the jurors to use common notions of eyewitness psychology which are simply wrong.“ (Ibid.) “These apparently innocent cliches can later play a crucial role in arguments in the juryroom: one juror’s version of ‘life experience’ can trump a specific caution concerning eyewitness performance.“ (Loftus & Doyle, Eyewitness Testimony—Civil & Criminal (Lexis, 3rd ed. 1997) 12-3, p. 332.) (See also FORECITE F 105.1 Inst 4.)
No Use Of The Term “Expert” C Using the term “expert” in jury instructions may improperly mislead the jury into giving greater weight to the evidence than is appropriate. This is of particular concern in light of the modern reality that the “expert witness” is no longer likely to be neutral and objective (the idea once upon a time when expert witnesses were new to the judicial system), but rather will almost certainly be a partisan of the party that hired him—otherwise, that party would never have paid all that money to have him testify.
A way of dealing with the danger that jurors may be unduly deferential to expert opinion testimony is to preclude both the judge and counsel from using the term “expert.” Instead, the expert witnesses could be referred to as “opinion witnesses.” (See e.g., Stephen A. Saltzburg, A Testimony from an Opinion Witness: Avoid Using the Word “Expert” at Trial, Criminal Justice, Summer 1994, p. 35; see also 5th Circuit Pattern Jury Instructions—Criminal 1.17 [Expert Witness] (2001); 7th Circuit Federal Jury Instructions—Criminal 3.07 [Weighing Expert Testimony] & & 1 Comment (1999) [“term ‘expert‘ has been omitted to avoid the perception that the court credits the testimony of such a witness” ]; 11th Circuit Pattern Jury Instructions—Criminal Basic Instructions 7 [Expert Witnesses] (1997) [witness not referred to as expert in body of instruction]; Oklahoma Uniform Jury Instructions—Criminal, OUJI-CR 9-42 [Credibility Of Opinion Witness] (Oklahoma Center for Criminal Justice, 2nd ed. 1996, 1997 Supp.).)
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 2.5 [Lightening, Lessening Or Diminishing The Prosecution’s Burden Of Proof]
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.
F 105.1 Inst 4 (a & b) Juror Reliance On Common Sense Or Experience May Compromise The Reasonable Doubt Standard
Alternative a:
*Modify CC 105, paragraph 1, sentence 2, as follows [added language is underlined; deleted language is stricken]:
In deciding whether evaluating testimony, is true and accurate, use your common sense and experience remember that your ultimate duty is to decide, if you can, whether or not, in light of all the evidence received, the prosecution has proven the defendant guilty beyond a reasonable doubt.
Alternative b:
*Replace CC 105, paragraph 1, sentence 2, with:
In evaluating testimony, remember that your ultimate duty is to decide, if you can, whether or not, in light of all the evidence received, the prosecution has proven the defendant guilty beyond a reasonable doubt.
Points and Authorities
Common Sense—CALCRIM 105 directs the jurors to use their “common sense and experience” in judging the credibility of a witness. This is troublesome since “common sense and experience” are necessarily subjective concepts and may encourage the jurors to consider matters not in evidence. (See FORECITE F 105.1 Inst 3.)
Hence, there is a danger that this instruction will cause the jurors (1) to rely on extra-judicial evidence and/or (2) to employ a standard less than proof beyond a reasonable doubt since “common sense” can be used as a substitute for objective (and substantial) evidence of guilt.
Lightening, Lessening Or Diminishing The Prosecution‘s Burden Of Proof—This instruction is required by the federal constitutional rights to a fair trial by jury and due process (5th, 6th and 14th Amendments) which preclude instructions or presumptions which diminish or lighten the prosecution‘s burden of proof. (See Yates v. Evatt (1991) 500 US 391, 114 L.Ed.2d 432; Sullivan v. Louisiana (1993) 508 US 275, 278-81 [113 SCt 2078; 124 LEd2d 182]; Sandstrom v. Montana (1979) 442 US 510 [99 SCt 2450; 61 LEd2d 39]; Conde v. Henry (9th Cir. 1999) 198 F3d 734; Humphrey v. Cain (5th Cir. 1998)138 F3d 552.)
Consideration Of Matters Not Admitted Into Evidence—This instruction is required by the Due Process Clause of the federal constitution (5th and 14th Amendments) which requires an impartial, unbiased jury capable of and willing to decide the case solely on the evidence before it. (Smith v. Phillips (1982) 455 US 209, 217 [102 SCt 940; 71 LEd2d 78]; Sheppard v. Maxwell (1966) 384 US 333, 363 [86 SCt 1507; 16 LEd2d 600] [“reasonable likelihood” of jury bias, because of televised confession and other media exposure, warranted trial court inquiry]; Remmer v. U.S. (1954) 347 US 227 [74 SCt 450; 98 LEd 654]; Ohio Bell Tel. Co. v. Public Utilities Comm. of Ohio (1937) 301 US 292, 300-03 [57 SCt 724; 81 LEd2d 1093]; Mattox v. U.S. (1892) 146 US 140, 149 [13 SCt 50; 36 LEd 917]; U.S. v. Dutkel (9th Cir. 1999) 192 F3d 893, 894-95 [jury tampering by codefendant raised presumption of prejudice].)
The federal constitutional rights to a fair trial by jury, confrontation, due process and the right to counsel (5th, 6th and 14th Amendments) require that the jury only consider evidence which has been duly admitted at trial after affording the defendant an opportunity to cross-examine and confront the witness who offers the testimony. (See Crane v. Kentucky (1986) 476 US 683, 690 [106 SCt 2142; 90 LEd2d 636]; see also Lilly v. Virginia (1999) 527 US 116, 139 [119 SCt 1887; 144 LEd2d 177]; Idaho v. Wright (1990) 497 US 805, 816-17 [110 SCt 3139; 111 LEd2d 638]; Mach v. Stewart (9th Cir. 1998) 137 F3d 630 [trial court‘s refusal to grant a mistrial or conduct further voir dire after a prospective juror made repeated expert-like statements concerning the veracity of a child‘s accusations of sexual abuse violated petitioner‘s right to an unbiased jury]; United States v. Schuler (9th Cir. 1987) 813 F.2d 978 [prosecutor‘s comments on nontestifying defendant‘s demeanor during guilt trial improperly put defendant‘s character in issue, and violated his 5th Amendment right not to testify and not to be convicted except upon the basis of evidence introduced at trial]; U.S. v. Davis (DC Cir. 1997) 127 F3d 68, 70; In re Hitchings (1993) 6 C4th 97.)
These rights are implicated by procedures, jury instructions and/or the absence of jury instructions which permit and/or encourage the jury to rely on evidence which was not admitted into evidence at trial.
Juror misconduct implicates the constitutional rights guaranteed by the 6th and 14th Amendments. (Jeffries v. Wood (9th Cir. 1997) (en banc) 114 F3d 1484, 1490-1492; Marino v. Vasquez (9th Cir. 1987) 812 F.2d 499.) For example:
“When a jury considers facts that have not been introduced in evidence, a defendant has effectively lost the rights of confrontation, cross-examination, and the assistance of counsel with regard to jury consideration of the extraneous evidence. In one sense, the violation may be more serious than where these rights are denied at some other stage of the proceedings because the defendant may have no idea what new evidence has been considered. It is impossible to offer evidence to rebut it, to offer a curative instruction, to discuss its significance in argument to the jury, or to take other tactical steps that might ameliorate its impact.” (Gibson v. Clannon (9th Cir. 1980) 633 F2d 851, 853; see also Sassounian v. Roe (9th Cir. 2000) 230 F3d 1097; Eslaminia v. White (9th Cir. 1998) 136 F3d 1234.)
Similarly, unauthorized reference to dictionary definitions of legal terms constitutes constitutional error which the State must prove harmless beyond a reasonable doubt. (United States v. Kupau (9th Cir. 1986) 781 F2d 740, 744.)
Even if “only one juror was unduly biased or improperly influenced [by exposure to facts not introduced in evidence, defendant] was deprived of his 6th Amendment right to an impartial panel” of twelve unprejudiced jurors. (Dickson v. Sullivan (9th Cir. 1988) 849 F2d 403, 406; People v. Nesler (1997) 16 C4th 561.)
A juror‘s concealment of bias or prejudice, like other forms of juror misconduct, may deny a defendant his 6th Amendment right to a fair trial by an impartial jury. (Dyer v. Calderon (9th Cir. 1998) (en banc)151 F3d 970; United States v. Eubanks (9th Cir. 1979) 591 F2d 513, 516-517; Burton v. Johnson (10th Cir. 1991) 948 F.2d 1150.)
Delete “True And Accurate”—See FORECITE F 104.1 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 2.5 [Lightening, Lessening Or Diminishing The Prosecution’s Burden Of Proof]
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.
F 105.1 Inst 5 Exceptions To Instruction That Each Witness Is To Be Judged By The Same Standard
*Modify CC 105, paragraph 1, sentence 3, as follows [added language is underlined]:
The testimony of each witness must be judged by the same standard except as I may otherwise instruct you.
Points and Authorities
CALCRIM 105 fails to recognize that some witnesses must be judged by different standards (e.g., accomplices (CC 334); witness intoxicated at time of event (FORECITE F 105.2 Inst 3; witness with interest in outcome (FORECITE F 105.2 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 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
FORECITE CG 7.1 [Right To Jury Consideration Of The Evidence]
FORECITE CG 7.2 [Jury’s Duty To Fully And Fairly Apply The Law]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
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