SERIES 200 POST-TRIAL: INTRODUCTORY
F 220 REASONABLE DOUBT
F 220.1 PRESUMPTION OF INNOCENCE: NO BIAS BECAUSE DEFENDANT ARRESTED AND CHARGED
F 220.2 PRESUMPTION OF INNOCENCE: PROOF OF EACH ELEMENT BEYOND A REASONABLE DOUBT
F 220.3 REASONABLE DOUBT DEFINED
F 220.4 JURORS MUST IMPARTIALLY CONSIDER ALL THE EVIDENCE; UNLESS GUILT PROVEN BEYOND A REASONABLE DOUBT JURORS MUST FIND DEFENDANT NOT GUILTY
TABLE OF CONTENTS
F 220.1 PRESUMPTION OF INNOCENCE: NO BIAS BECAUSE DEFENDANT ARRESTED AND CHARGED
F 220.1 Inst 1 No Bias Against Defendant
F 220.1 Inst 2 Modification Where Defendant Self-Surrendered
F 220.1 Inst 3 (a & b) Charging Document Does Not Permit An Inference Of Guilt
F 220.1 Inst 4 Jury Not To Consider Indictment As Evidence
F 220.1 Inst 5 Burden Of Proof Never Shifts To Defendant
F 220.2 PRESUMPTION OF INNOCENCE: PROOF OF EACH ELEMENT BEYOND A REASONABLE DOUBT
F 220.2 Inst 1 Prosecutor Must Prove Every Essential Fact
F 220.2 Inst 2 Prosecutor Must Prove Every Essential Element
F 220.2 Inst 3 The Jury Should Be Instructed Using The “Each Element” Formulation Of The January 2006 Version Of CALCRIM 220
F 220.3 REASONABLE DOUBT DEFINED
F 220.3 Inst 1 Comparison Of Burdens: “Abiding Conviction” Should Be Defined To Avoid Confusion With The Clear And Convincing Evidence Standard
F 220.3 Inst 2 (a-j) Juror May Have A Reasonable Doubt Based On A Lack Of Evidence
F 220.3 Inst 3 Definition Of “Abiding” As Lasting And Permanent
F 220.3 Inst 4 Abiding Conviction Requires More Than “Strong And Convincing Belief”
F 220.3 Inst 5 (a & b) Reasonable Doubt May Be Based On Conflict In The Evidence
F 220.3 Inst 6 Abiding Conviction Requires That Jurors Be More Than “Firmly Convinced” Of The Defendant’s Guilt
F 220.4 JURORS MUST IMPARTIALLY CONSIDER ALL THE EVIDENCE; UNLESS GUILT PROVEN BEYOND A REASONABLE DOUBT JURORS MUST FIND DEFENDANT NOT GUILTY
F 220.4 Inst 1 Any Juror With Reasonable Doubt Must Vote To Acquit
F 220.4 Inst 2 Presumption Of Innocence Should Be Applied To Each Defendant Individually
F 220.4 Inst 3 Burden Of Proof: Definition Of Burden
F 220.4 Inst 4 (a & b) Rejection Or Disbelief Of Defense Evidence Does Not Satisfy The Prosecution’s Burden Of Proof
F 220.4 Inst 5 Prosecution Bound by Defendant’s Statement Unless Contrary Evidence Presented
F 220.4 Inst 6 Duty To Presume Defendant Innocent: No Necessity For Defendant To Produce Evidence
F 220.4 Inst 7 Clarification Of The Burden Of Proof When One Defendant Points The Finger At Another
F 220.4 Inst 8 Strong Suspicion No Substitute For Proof Beyond A Reasonable Doubt
Return to Series 200 Table of Contents.
F 220.1 PRESUMPTION OF INNOCENCE: NO BIAS BECAUSE DEFENDANT ARRESTED AND CHARGED
F 220.1 Inst 1 No Bias Against Defendant
See FORECITE F 103.1 Inst 1.
F 220.1 Inst 2 Modification Where Defendant Self-Surrendered
See FORECITE F 103.1 Inst 2.
F 220.1 Inst 3 (a and b) Charging Document Does Not Permit An Inference Of Guilt
See FORECITE F 103.1 Inst 3.
F 220.1 Inst 4 Jury Not To Consider Indictment As Evidence
See FORECITE F 103.1 Inst 4.
F 220.1 Inst 5 Burden Of Proof Never Shifts To Defendant
See FORECITE F 103.1 Inst 5.
F 220.2 PRESUMPTION OF INNOCENCE: PROOF OF EACH ELEMENT BEYOND A REASONABLE DOUBT
F 220.2 Inst 1 Prosecutor Must Prove Every Essential Fact
See FORECITE F 103.2 Inst 1.
F 220.2 Inst 2 California Case Law Requires The Prosecution To Prove Every Element
The California courts have consistently expressed the prosecution’s burden in terms proving each or every element of the charge. (See e.g., People v. Flores (2007) 147 CA4th 199, 209-10; People v. Neidinger (2006) 40 C4th 67, 72 [“prosecution had the burden of proving beyond a reasonable doubt every element of the crime. . . No one questions this basic proposition.”]; People v. Cole (2004) 33 C4th 1158, 1208 (main charge) [“The prosecution has the burden of proving beyond a reasonable doubt each element of the charged offense.”]; People v. Rodriguez (2004) 122 CA4th 121, 128 (special allegation) [“The prosecution has the burden of proving beyond a reasonable doubt each element of a prior conviction used to enhance a defendant’s sentence.”].)
F 220.2 Inst 3 The Jury Should Be Instructed Using The “Each Element” Formulation Of The January 2006 Version Of CALCRIM 220
*Replace CC 220, paragraph 2, sentence 2 with:
This presumption requires that the prosecution prove each element of a crime [and special allegation] beyond a reasonable doubt.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
The Federal Constitution Requires The Prosecution To Prove Every Element—Any person accused of a crime is presumed innocent unless and until the jury finds that every essential fact necessary to prove the charged crime and every element of the crime has been proved by the prosecution beyond a reasonable doubt. (Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348]; U.S. v. Gaudin (1995) 515 US 506 [132 LEd2d 444; 115 SCt 2310]; Sullivan v. Louisiana (1993) 508 US 275, 278-81 [113 SCt 2078; 124 LEd2d 182]; Carella v. California (1989) 491 US 263, 265-66 [105 LEd2d 218; 109 SCt 2419]; 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]; U.S. v. Voss (8th Cir. 1986) 787 F2d 393; People v. Hill (1998) 17 C4th 800, 831; People v. Figueroa (1986) 41 C3d 714.)
California Case Law Requires The Prosecution To Prove Every Element – The California courts have consistently expressed the prosecution’s burden in terms proving each or every element of the charge. (See e.g., People v. Flores (2007) 147 CA4th 199, 209-10; People v. Neidinger (2006) 40 C4th 67, 72 ; People v. Cole (2004) 33 C4th 1158, 1208 (main charge) [“The prosecution has the burden of proving beyond a reasonable doubt each element of the charged offense.”]; People v. Rodriguez (2004) 122 CA4th 121, 128 (special allegation) [“The prosecution has the burden of proving beyond a reasonable doubt each element of a prior conviction used to enhance a defendant’s sentence.”].)
See also CALCRIM Article Bank # CCM-004.
The need to instruct in such language was emphasized in People v. Phillips (1997) 59 CA4th 952, in which the trial court failed to give adequate jury instructions regarding reasonable doubt and the presumption of innocence. The prosecution argued that it was harmless error because the jury received instruction from counsel, but the Court of Appeal reversed, finding that the jurors had to specifically be advised that each element had to be proved beyond a reasonable doubt in order to convict on a charge:
In our view, the trial court’s error suffered no less a constitutional defect than did the trial court in Sullivan [v. Louisiana (1993) 508 US 275]. The reversal per se rule of Sullivan does not allow for exceptions where counsel refer to the reasonable doubt instruction in argument. The structural infirmity present in Sullivan is present here as well.
The attorneys’ references to the requirement of proof beyond a reasonable doubt fell “short of apprising the jurors that defendants were entitled to acquittal unless each element of the crimes charged was proved to the jurors’ satisfaction beyond a reasonable doubt buttressed by additional instructions on the meaning of that phrase.” (People v. Phillips, supra, 59 CA4th 952, 957-958 ; quoting People v. Vann (1974) 12 C3d 220, 227; emphasis added.)
In sum, the California cases stand for the proposition that jury instructions which do not specifically require proof beyond a reasonable doubt of each element are inadequate. (People v. Harris (1994) 9 C4th 407, 438; see also People v. Vann (1974) 12 C3d 220.)
EC 502 Requires Correct Instruction On The Burden Of Proof—The requested instruction is also justified by EC 502 which provides as follows:
The court on all proper occasions shall instruct the jury as to which party bears the burden of proof on each issue and as to whether that burden requires that a party raise a reasonable doubt concerning the existence or nonexistence of a fact or that he establish the existence or nonexistence of a fact by a preponderance of the evidence, by clear and convincing proof, or by proof beyond a reasonable doubt. [Emphasis added.]
The Language Of The Requested Instruction Was Approved By The CALCRIM Committee After Nine Years Of Input From Respected Judges, Practitioners And Scholars— A Blue Ribbon committee of judges, practitioners and scholars labored for 9 years to produce the original set of CALCRIM instructions. Moreover, the instructions were vetted to the public and numerous members of the legal community submitted input. Finally, the CALCRIM instructions were officially “endorsed” by the Judicial Council. (Rule 855(b), Calif. Rules of Court.)
Accordingly, CC 220 was a proper and accurate instruction when initially written by the CALCRIM Committee and endorsed by the Judicial Council. Therefore, the request to instruct using this original and correct language should be granted.
The Requested Language Is Widely Used And Approved In Other Jurisdictions—A substantial majority of other jurisdictions—state, federal and military—use the “every element” or “each element” construction when defining the presumption of innocence. (See FORECITE F 220 Note 12 [only 4 out 34 jurisdictions randomly surveyed did not use the “every element” or “each element” formulation.) This fact further demonstrates that the January 2006 language of CALCRIM 220 is preferable to the revised version and should be given when requested.
No Reference To “The People”—See FORECITE F 100.2 Note 1 and CALCRIM Motion Bank # CCM-006.
It Is Unfair To Use The “Each Element” Language To Describe The Defendant’s Burden As To Affirmative Defenses And Not To Describe The Prosecution’s Burden – The CALCRIM Committee has systematically removed the “each element” language from all of CALCRIM’s instructions which define the prosecution’s burden of proof. (See CC 103 [revised in August 2006], CC 220 [revised in August 2006] and CC 375 [revised in Spring 2008].) (Revised in 2006: CC 220; revised in 2007: CC 103; revised in 2008: CC 375, CC 852, CC 853, CC 1191, CC 2840; CC 361 [revised in Spring 2010].) On the other hand, the CALCRIM instructions on affirmative defenses use the “each element” language in describing the defendant’s burden of proof. (See, e.g., CC 2510, 2511, 2512, 1513 and 2591.) To remedy this disparity the “each element” language should be used as to the prosecution’s burden of proof as well as the defendant’s. (See generally People v. Moore (1954) 43 C2d 517, 526-27 [“[t]here should be absolute impartiality as between the People and the defendant in the matter of instructions, including the phraseology employed in the statement of familiar principles”]; Reagan v. United States (1895) 157 US 301, 310 [15 SCt 610; 39 LEd 709].) Failure to do so would unnecessarily favor the prosecution over the defense in violation of the Due Process Clause of the federal constitution. The Due Process Clause speaks “to the balance of forces between the accused and his accuser.” (Wardius v. Oregon (1973) 412 US 470, 474 [37 LEd2d 82; 93 SCt 2208].) In the absence of a strong showing of state interests to the contrary there must be a “two-way street” as between the prosecution and the defense. (Ibid.)
STRATEGY NOTE – If the judge continues to deny a request for the “each element” formulation of CC 220 there are several tactical options for utilizing closing argument to emphasize the requirement. (See FORECITE F 200.5 Inst 2.)
Moreover, counsel may also rely on CC 103 which still contains the “each element” language.
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.
F 220.3 REASONABLE DOUBT DEFINED
F 220.3 Inst 1 Comparison Of Burdens: “Abiding Conviction” Should Be Defined To Avoid Confusion With The Clear And Convincing Evidence Standard
See FORECITE F 103.3 Inst 1.
F 220.3 Inst 2 (a-j) Juror May Have A Reasonable Doubt Based On A Lack Of Evidence
See FORECITE F 103.3 Inst 2 (a-j).
F 220.3 Inst 3 Definition Of “Abiding” As Lasting And Permanent
See FORECITE F 103.3 Inst 3.
F 220.3 Inst 4 Abiding Conviction Requires More Than “Strong And Convincing Belief”
See FORECITE F 103.3 Inst 4.
F 220.3 Inst 5 (a & b) Reasonable Doubt May Be Based On Conflict In The Evidence
See FORECITE F 103.3 Inst 5 (a and b).
F 220.3 Inst 6 Abiding Conviction Requires That Jurors Be More Than “Firmly Convinced” Of The Defendant’s Guilt
See FORECITE F 103.3 Inst 6.
F 220.4 JURORS MUST IMPARTIALLY CONSIDER ALL THE EVIDENCE; UNLESS GUILT PROVEN BEYOND A REASONABLE DOUBT JURORS MUST FIND DEFENDANT NOT GUILTY
F 220.4 Inst 1 Any Juror With Reasonable Doubt Must Vote To Acquit
See FORECITE F 103.4 Inst 1.
F 220.4 Inst 2 Presumption Of Innocence Should Be Applied To Each Defendant Individually
See FORECITE F 103.4 Inst 2.
F 220.4 Inst 3 Burden Of Proof: Definition Of Burden
See FORECITE F 103.4 Inst 3.
F 220.4 Inst 4 (a and b) Rejection Or Disbelief Of Defense Evidence Does Not Satisfy The Prosecution’s Burden Of Proof
See FORECITE F 103.4 Inst 4.
F 220.4 Inst 5 Prosecution Bound By Defendant’s Statement Unless Contrary Evidence Presented
See FORECITE F 103.4 Inst 5.
F 220.4 Inst 6 Duty To Presume Defendant Innocent: No Necessity For Defendant To Produce Evidence
See FORECITE F 103.4 Inst 6.
F 220.4 Inst 7 Clarification Of The Burden Of Proof When One Defendant Points The Finger At Another
See FORECITE F 103.4 Inst 7.
F 220.4 Inst 8 Strong Suspicion No Substitute For Proof Beyond A Reasonable Doubt
See FORECITE F 103.4 Inst 8.
