SERIES 200 POST-TRIAL: INTRODUCTORY
F 224 CIRCUMSTANTIAL EVIDENCE: SUFFICIENCY OF EVIDENCE
TABLE OF CONTENTS
F 224 Inst 1 Circumstantial Evidence: Guilt Vs. Innocence
F 224 Inst 2 Mere Suspicion Or Possibility Insufficient For Inference Of A Fact
F 224 Inst 3 Limitation Of Reasonable Doubt/Burden Of Proof Principles To Circumstantial Evidence Improperly Implies That Such Principles Do Not Apply To Direct Evidence
F 224 Inst 4 Applicability Of Circumstantial Evidence Principles To Expert Testimony
F 224 Inst 5 Improper To Define Burden Of Proof In Terms Of Being Convinced Or Satisfied
F 224 NOTES
F 224 Note 1 Lesser Standard Argument Rejected
F 224 Note 2 Instruction Required When Direct Evidence May Be Rejected Or Prosecution Relies On Circumstantial Evidence
F 224 Note 3 Giving Of Circumstantial Evidence Instructions When Not Warranted By The Evidence As Harmless Error
Return to Series 200 Table of Contents.
F 224 Inst 1 Circumstantial Evidence: Guilt Vs. Innocence
*Modify CC 224, paragraph 2, sentence 2 as follows [added language is underlined; deleted language is stricken]:
If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to a finding of not guilty innocence and another to a finding of guilty, you must accept the one that points to innocence the finding of not guilty.
Points and Authorities
One of the most fundamental principles of criminal law is the prosecution’s burden to prove the defendant guilty beyond a reasonable doubt. (See Mullaney v. Wilbur (1975) 421 US 684 [44 LEd2d 508].) And, an essential rule which emanates from this burden is that the defendant need not prove his or her innocence, but need only leave the jury with a reasonable doubt as to guilt. (See People v. Hall (1980) 28 C3d 143, 159; see also People v. Adrian (1982) 135 CA3d 335, 342; FORECITE F 17.50b; but see People v. Wade (1995) 39 CA4th 1487, 1491-92 [holding that it was not error to give the “guilty” / “innocent” language, but failing to address whether the language should be changed upon request].) Hence, jury instructions which suggest that the jury must decide between “guilt” or “innocence” implicate the defendant’s state (Art. I §15) and federal (6th and 14th Amendments) constitutional rights to due process and trial by jury. (See also Bugliosi, “Not Guilty and Innocent—The Problem Children Of Reasonable Doubt,“ 4 Crim. Justice J. 349 (1981).)
Accordingly, CALCRIM 224 should also be revised as set forth above.
The argument advanced by FORECITE regarding the impropriety of instructing the jury in terms of the defendant’s “guilt or innocence” was approved in People v. Han (2000) 78 CA4th 797, 809: “We recognize the semantic difference and appreciate the defense argument. We might even speculate that the instruction will be cleaned up eventually by the CALJIC Committee to cure this minor anomaly, for we agree that the language is inapt and potentially misleading in this respect standing alone.” [Referring to CJ 2.01 now CALCRIM 224.] [Original emphasis.]
Most of the CALCRIM instructions have also adopted FORECITE’s position with the exception of CALCRIM 224.
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 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge]
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 2.01a.
F 224 Inst 2 Mere Suspicion Or Possibility Insufficient For Inference Of A Fact
*Add to CC 224:
Alternative a:
You may not infer a fact based on a mere possibility that the prosecution has proven it. A mere possibility is nothing more than a suspicion, which is not a sufficient basis for an inference that a fact has been proven.
Please remember, the defendant is not required to prove any fact.
Alternative b:
You may not infer a fact based on a mere possibility that the fact is true. A mere possibility is nothing more than a suspicion, which is not a sufficient basis for an inference of fact.
Please remember, the defendant is not required to prove any fact
Points and Authorities
“The mere possibility that [something happened] raises nothing more than a suspicion, which does not form a sufficient basis for an inference of fact. [Citation.]” (In re Leanna W. (2004) 120 CA4th 735, 741; see also People v. Martin (1973) 9 C3d 687, 695; People v. Redmond (1969) 71 C2d 745, 755.)
Just as the defendant does not have a right to “present to the jury a speculative, factually unfounded inference” (People v. Holloway (2004) 33 C4th 96, 130 [internal citations and quotation marks omitted), neither should the jury be permitted to convict based on such an inference. (See Wardius v. Oregon (1973) 412 US 470 [37 LEd2d 82; 93 SCt 2208] [lack of balance between prosecution and defense violates due process]; Lindsay v. Normet (1972) 405 US 56, 77 [31 LEd2d 36; 92 SCt 862] [arbitrary preference to particular litigants violates equal protection].)
Moreover, when a fact is inferred based on a mere possibility or suspicion, it cannot be said “with substantial assurance” that the inference is “more likely than not” to flow from the underlying facts. Therefore, such an inference is constitutionally deficient. (See County Court of Ulster County v. Allen (1979) 442 US 140, 157 [60 LEd2d 777; 99 SCt 2213] [instruction embodying a permissive inference may be unconstitutional “if, under the facts of the case, there is no rational way the trier of fact could make the connection permitted by the inference” ]; Leary v. U.S. (1969) 395 US 6, 36 [23 LEd2d 57; 89 SCt 1532] [permissive presumption is unconstitutional “unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact upon which it is made to depend” ]; Schwendeman v. Wallenstein (9th Cir. 1992) 971 F2d 313, 316.)
See also FORECITE F 103.4 Inst 8 [Strong Suspicion No Substitute For Proof Beyond A Reasonable Doubt]; cf. F 2.90b [Rejection or Disbelief Does Not Satisfy Prosecution’s Burden].
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 2.1 [Burden Of Proof: Failure To Adequately Define]
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 2.3 [Prosecution’s Burden Of Proof: Irrational Permissive Inference]
FORECITE CG 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge]
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 2.01c.
F 224 Inst 3 Limitation Of Reasonable Doubt/Burden Of Proof Principles To Circumstantial Evidence Improperly Implies That Such Principles Do Not Apply To Direct Evidence
*Modify CC 224 as follows [added language is underlined; deleted language is stricken]:
Before you may rely on circumstantial any evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.
Also, before you may rely on circumstantial any evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial the evidence, you must accept only reasonable conclusions and reject any that are unreasonable.
Points and Authorities
The Principles Expressed In CALCRIM 224 And CALCRIM 225 Apply To All Evidence— The principles set forth in CALCRIM 224 and CALCRIM 225 are specifically limited to circumstantial evidence. (See e.g., CALCRIM 376.) However, the principles set forth in CALCRIM circumstantial evidence instructions should be applied to all evidence, not just circumstantial evidence.
California courts have long recognized the principle that if two reasonable interpretations of the evidence exist, the one favoring the defendant’s innocence must be adopted by the jury. (See People v. Bender (1945) 27 C2d 164, 175-77; People v. Naumcheff (1952) 114 CA2d 278, 281 [“If from the evidence you can with equal propriety draw two conclusions, the one of guilt, the other of innocence, then in such a case it is your duty to adopt the one of innocence and find the defendant not guilty.” ]; People v. Haywood (1952) 109 CA2d 867, 872 [“The testimony in this case if its weight and effect be such as two conclusions can be reasonably drawn from it, the one favoring the defendant’s innocence, and the other tending to establish his guilt, law, justice and humanity alike demand that the jury shall adopt the former and find the accused not guilty.” ]; People v. Foster (1926) 198 C 112, 127 [Jury instructed “that, considering the evidence as a whole, if it was susceptible of two reasonable interpretations, one looking ‘toward guilt and the other towards the innocence of the defendant, it was their duty to give such facts and evidence the interpretation which makes for the innocence of the defendant.’ ” ]; People v. Barthleman (1898) 120 C 7, 10 [“If the evidence points to two conclusions, one consistent with the defendant’s guilt, the other consistent with the defendant’s innocence, the jury are bound to reject the one of guilt and adopt the one of innocence, and acquit the defendant.” ]; and People v. Carrol (1947) 79 CA2d 146, 150 [“You are instructed that if from the evidence you can with equal propriety draw two conclusions, one of guilt, the other of innocence, it is your duty to adopt the one of innocence and find the defendant not guilty.” ].)
In the federal system, the principle set forth above is conveyed to the jury by a standard jury instruction which provides as follows: “If the jury views the evidence in the case as reasonably permitting either of two conclusions—one of innocence, the other of guilt—the jury must, of course, adopt the conclusion of innocence.” (Devitt, et al. Fed. Jury Prac. & Instr. (1992) §1210, p. 354; see also U.S. v. James (9th Cir. 1978) 576 F2d 223, 227 fn 3; but see U.S. v. Grayson (9th Cir. 1979) 597 F2d 1225 [proper but not required].)
However, the CALJIC instructions, nor the CALCRIM instructions, have evolved in such a way as to limit this principle to circumstantial evidence as opposed to all of the evidence. In point of fact, People v. Bender, supra, which CALJIC provides as authority for its circumstantial evidence instruction, did not hold that it should only be given in circumstantial evidence cases. To the contrary, Bender stated that the instruction, as applied to all of the evidence, was “eminently proper….” Bender, 27 C2d at 177.
Hence, the principles set forth in CALCRIM 224 and CALCRIM 225 are equally applicable to both circumstantial and direct evidence and the jurors should be so instructed.
Instructions That Certain Principles Apply Only To Circumstantial Evidence Is Misleading— Apart from whether there is an affirmative duty to instruct in this regard, by limiting the principles to circumstantial evidence, CALCRIM 224 and CALCRIM 225 improperly imply to the jurors that they do not apply to direct evidence. That is, in CALCRIM 223 the jury is told that there are two types of evidence: direct and circumstantial. By then telling the jury that certain principles apply to circumstantial evidence, the jury cannot help but conclude, based on common logic, that those same principles do not apply to direct evidence. “Although the average layperson may not be familiar with the Latin phrase inclusio unius est exclusion alterius, the deductive concept is commonly understood ….” (People v. Castillo (1997) 16 C4th 1009, 1020 [conc. opn. of Brown, J.]; see also U.S. v. Crane (9th Cir. 1992) 979 F2d 687, 690 [maxim expressio unius est exclusio alterius “is a product of logic and common sense” ].) To reasonable minds, CALCRIM 224 and CALCRIM 225 would appear to include an intentional omission. That is how the Supreme Court reasoned in People v. Dewberry (1959) 51 C2d 548, 557:
“The failure of the trial court to instruct on the effect of a reasonable doubt as between any of the included offenses, when it had instructed as to the effect of such doubt as between the two highest offenses, and as between the lowest offense and justifiable homicide, left the instructions with the clearly erroneous implication that the rule requiring a finding of guilt of the lesser offense applied only as between first and second degree murder.” (See also People v. Salas (1976) 58 CA3d 460, 474 [129 CR 871] [when a generally applicable instruction, such as CJ 2.02, is specifically made applicable to one aspect of the charge and not repeated with respect to another aspect, the inconsistency may be prejudicial error].)
Effectively, the context highlights the omission, so the jury learns that the stated principles, while applying to circumstantial evidence, do not apply to direct evidence.
In sum, CALCRIM 224 and CALCRIM 225 erroneously mislead the jury into deducing that the principles stated in those instructions do not apply to direct evidence.
(See also FORECITE F 223 Note 2.)
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 2.2 [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.
[See generally, FORECITE PG VII(C).] [See Brief Bank # B-694 foradditional briefing on this issue.]
CALJIC NOTE: See FORECITE F 2.01 n5 and F 2.01 n6.
F 224 Inst 4 Applicability Of Circumstantial Evidence Principles To Expert Testimony
*Add to CC 224 as follows:
[An opinion expressed in testimony] [The opinion testimony of _______________ <name of witness>] is circumstantial evidence.
Points and Authorities
Without an express instruction, the jurors may not understand that opinion testimony is circumstantial evidence. (See e.g., People v. Danks (2004) 32 C4th 269 [recognizing that jurors make unwarranted assumptions about instructions which are not specifically spelled out].) “An opinion is an inference from facts observed.” (See e.g., 1 Witkin, California Evidence, Opinion Evidence §1, p. 528 (4th ed. 2000) [“an opinion is an inference from facts observed” ].) Hence, the opinions of experts have uniformly been held to constitute circumstantial evidence in California. (See e.g., Id., pp. 579-625; see also People v. Goldstein (1956) 139 CA2d 146, at 153.) In particular, in People v. Jones (1954) 42 C2d 219, the Supreme Court characterized the opinion testimony of a psychiatrist, who was to render an opinion that the defendant was not a sexual deviant, as “indirect evidence.” (42 C2d at 222; see also Goldstein, supra, 139 CA2d at 153.)
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 7.2 [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.
CALJIC NOTE: See FORECITE F 2.01 n7.
F 224 Inst 5 Improper To Define Burden Of Proof In Terms Of Being Convinced Or Satisfied
*Modify CC 224, paragraph 1 as follows [added language is underlined; deleted language is stricken]:
Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced find that the People have proved each fact essential to that conclusion beyond a reasonable doubt.
*Modify paragraph 2, sentence 1, as follows:
Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced find that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty.
Points and Authorities
Jurors Must “Find” The Defendant Guilty Beyond A Reasonable Doubt— 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 by 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]; People v. Hill (1998) 17 C4th 800; People v. Figueroa (1986) 41 C3d 714.)
Accordingly, an instruction is deficient if it merely requires that the jurors be “convinced” or “satisfied” that the defendant is guilty. Such an instruction does not require the jurors to “find” guilt beyond a reasonable doubt based on evidence presented by the prosecution. This is so because, a juror can be “convinced” or “satisfied” in his or her own mind that the defendant is guilty beyond a reasonable doubt even if the evidence has fallen short of so proving.(Compare, CC 220 [jury must find the defendant not guilt unless “the evidence proves the defendant guilty beyond a reasonable doubt” ].)
Hence, the term “convinced” in should be replaced with “find” as set forth above.
The fact that other more accurate CALCRIM instructions are also give such as CC 220 does not eliminate the need to correct erroneous conflicting, or contradictory language. (See FORECITE F 101.1 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 2.2 [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 224 NOTES
F 224 Note 1 Lesser Standard Argument Rejected
In People v. Jennings (1991) 53 C3d 334, 385-86, the court rejected an argument that CJ 2.01 and CJ 2.02 provide a lesser standard than CJ 2.90, but may still be preserved for federal habeas or certiorari. (See generally, FORECITE PG VII(C); see also People v. Crittenden (1994) 9 C4th 83, 144 [rejecting argument that circumstantial evidence instructions function as an unconstitutional, mandatory presumption of guilt.)
CALJIC NOTE: See FORECITE F 2.01 n1.
F 224 Note 2 Instruction Required When Direct Evidence May Be Rejected Or Prosecution Relies On Circumstantial Evidence
It is not necessary for the prosecution’s case to be based 100% upon circumstantial evidence in order to obtain instruction upon the principles relating to circumstantial evidence per CALCRIM 224. The trial court is obligated to give a circumstantial evidence instruction sua sponte “where circumstantial evidence is substantially relied upon for proof of guilt.” (People v. Yrigoyen (1955) 45 C2d 46, 49.)
Moreover, when the prosecution’s case rests on both direct and circumstantial evidence and the jury could rationally reject the direct evidence and convict based on the circumstantial evidence, CALCRIM 224 should also be given. Case law, including authority from the California Supreme Court, shows that when the prosecution’s case substantially involves both direct and circumstantial evidence, and the jury rationally could find facts that would make a guilty verdict depend on circumstantial evidence (i.e., reject the direct evidence as to a material element of the crime, but base a finding as to that material element on circumstantial evidence alone), the jury must be given a circumstantial evidence instruction.
Another basis for giving the circumstantial evidence instructions in situations where the evidence is both direct and circumstantial, is when the defendant requests the circumstantial evidence instruction in order to pinpoint the defendant’s theory of the case. For example, if the prosecution relies upon direct evidence such as an eyewitness, the defendant in such a case should be entitled to an instruction regarding the remaining circumstantial evidence in the event that the direct evidence is rejected as contended by the defense. This is so because a criminal defendant is entitled, upon request, to an instruction pinpointing the theory of the defense. (People v. Wharton (1991) 53 C3d 522, 572; see also, FORECITE PG III(A).
CALJIC NOTE: See FORECITE F 2.01 n3.
F 224 Note 3 Giving Of Circumstantial Evidence Instructions When Not Warranted By The Evidence As Harmless Error
See People v. Shea (1995) 39 CA4th 1257, 1270-71.
CALJIC NOTE: See FORECITE F 2.01 n4.
