SERIES 300 EVIDENCE
F 300 ALL AVAILABLE EVIDENCE
TABLE OF CONTENTS
F 300 Inst 1 Defense Has No Obligation To Call Any Witnesses
F 300 Inst 2 Production of All Evidence Not Required: Modification When The Prosecution Deprives The Defense Of Evidence
F 300 Inst 3 Inference From Fact That Witness Not Called
F 300 Inst 4 Weaker Or Less Satisfactory Evidence
F 300 Inst 5 (a-c) Production of All Evidence: Availability Of Witness To Prosecution
F 300 Inst 6 (a & b) Failure Of Prosecution To Have Informant Witness Available
F 300 Inst 7 Defense Not Obligated To Produce Evidence Or Call Witnesses
Return to Series 300 Table of Contents.
F 300 Inst 1 Defense Has No Obligation To Call Any Witnesses
*Replace CC 300 with the following:
The defense is not required to produce any evidence at all since the defendant is presumed to be innocent. However, should the defense decide to produce evidence, there is no requirement that the defense call all witnesses who may have information about the case or to produce all physical evidence that might be relevant.
Similarly, the prosecution, which has the burden of producing evidence to overcome the presumption of innocence, is not required to call all such witnesses or produce all relevant evidence.
Points and Authorities
CALCRIM 300 erroneously implies that the defense has an obligation to call witnesses or produce evidence. See FORECITE F 100.1 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]
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.
F 300 Inst 2 Production of All Evidence Not Required: Modification When The Prosecution Deprives The Defense Of Evidence
*Add to CC 300:
The prosecution has introduced evidence of the results of scientific testing of a __________ <e.g., blood> sample in this case. That __________ sample was entirely consumed by that scientific testing. There was nothing improper about the fact that the sample was entirely consumed in this testing, but this fact does mean that the defendant did not have the opportunity to have separate and independent testing of a portion of the sample accomplished in order to determine whether such independent testing would yield the same result or a different result. You are entitled to consider this lack of opportunity for independent testing by the defendant in deciding how much weight, if any, to give to the evidence introduced by the prosecution.
Points and Authorities
CALCRIM 300 fails to cover the situation where the defense has been deprived of evidence by the prosecution. When the prosecution is allowed to present expert testimony concerning evidence which was lost or destroyed, fundamental fairness and due process principles (Federal Constitution, 14th Amendment) should allow the defense to inform the jury that they had no opportunity to independently test the material. (See generally EC 412; see also FORECITE F 300 Inst 6; F 315.1.1 Inst 6; F 362.4 Inst 3 for additional instructions for use when the prosecution has negligently or wrongfully destroyed or lost evidence.)
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 4.5 [Right To Present Evidence And Fair Opportunity To Defend]
FORECITE CG 6.5 [Instructions Must Be Balanced Between Defense And Prosecution]
FORECITE CG 6.8 [Prosecution Misconduct: Lost Or Destroyed Evidence]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
RESEARCH NOTES: See Annotation, Consumption or destruction of physical evidence due to testing or analysis by prosecution’s expert as warranting suppression of evidence or dismissal of case against accused in state court, 40 ALR4th 594 and Later Case Service; see also FORECITE BIBLIO 2.11.
CALJIC NOTE: See FORECITE F 2.11a.
F 300 Inst 3 Inference From Fact That Witness Not Called
*Add to CC 300:
You may wonder why __________ <name of missing witness> was not called as a witness to answer questions in this trial. If you believe that the testimony of __________ <name of missing witness> would have been important, and if you also believe that the prosecution could have brought [him] [her] to court to testify in this trial, then you may consider the failure to do so when you attempt to decide whether the prosecution has proved, beyond a reasonable doubt, that the defendant committed the crime. In other words, you may conclude that the prosecution did not call __________ <name of missing witness> as a witness because [his] [her] testimony would have hurt the prosecution’s case.
Points and Authorities
Fed. Jud. Ctr., Pattern Crim. Jury Instructions(1988), Inst. # 39, p. 49.; see also, Deerings EC 412, “Suggested Forms,” p. 171, which provides the following instruction: “If a party has it peculiarly within his power to produce a witness whose testimony would be material on any matter in issue, the fact that he does not creates the presumption that the testimony, if produced, would be unfavorable to that party.” (See also U.S. v. Nichols (2nd Cir. 1990) 912 F2d 598, 601 [if witness is equally available to both parties, instruction may permit unfavorable inference against either party].)
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]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
NOTES
This type of instruction should not be used against the defendant who offers no evidence in his or her defense. The jury is consistently instructed that the burden is on the prosecution and the defendant is under no obligation to prove innocence (e.g., CC 103). The use of the instruction in this situation would severely undercut this principle. (See also FORECITE James Publishing — Law Books & Periodicals.)
See Fed. Jud. Ctr., Pattern Jury Instructions (1988) Comment to Instruction # 39, p. 49.
CALJIC NOTE: See FORECITE F 2.11b.
F 300 Inst 4 Weaker Or Less Satisfactory Evidence
*Add to CC 300:
If a party offers weaker or less satisfactory evidence when stronger and more satisfactory evidence could have been produced at trial, you may, but are not required to, consider this fact in your deliberations.
[You must remember, however, that the defendant is not obligated to produce any evidence or to call any witnesses.]
Points and Authorities
Propriety Of Instruction On Weaker Or Less Satisfactory Evidence—EC 412; see also Devitt, et al., Fed. Jury Prac. & Inst. (1992) §14.14; BAJI 2.02; Deerings EC 412 “Suggested Forms.” )
While cautioning against the use of this instruction in criminal cases except in rare cases (see People v. Romero (1966) 244 CA2d 495, 504), the cases nevertheless recognize that PC 412 applies “when it can be shown that a party is in fact in possession or has access to better and stronger evidence than was presented.” (See People v. Von Villas (1992) 10 CA4th 201, 245; People v. Taylor (1977) 67 CA3d 403, 412.) Moreover, such an instruction may properly be given when the evidence indicates a willful suppression of evidence. (See People v. Von Villas (1992) 10 CA4th 201, 245; see also People v. Williams (1957) 155 CA2d 328, 331.)
See also 371(A-4) Inst 3 [Suppression Of Evidence By Prosecution].
Defendant Has No Obligation To Present Evidence—See FORECITE F 100.1 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]
FORECITE CG 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge]
FORECITE CG 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
FORECITE CG 7.1 [Right To Jury Consideration Of The Evidence]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
NOTES
“Knowledge”Requirement: Defendant Permitted To Comment On Lack Of Fingerprint Evidence—See FORECITE F 3400.2.1 Note 3.
CALJIC NOTE: See FORECITE F 2.11c.
F 300 Inst 5 (a-c) Production Of All Evidence: Availability Of Witness To Prosecution
*Add to CC 300:
Alternative a [CACI 203]:
You may consider the ability of each party to provide evidence. If a party provided weaker evidence when it could have provided stronger evidence, you may distrust the weaker evidence.
Alternative b:
If the prosecution has it peculiarly within their power to produce a witness whose testimony would be material on any matter in issue, the fact that they failed to produce that witness creates a presumption that the testimony, if produced, would be unfavorable to the prosecution.
Alternative c:
If the prosecution had it peculiarly within its power to produce a witness whose testimony would be material on any matter in issue, the fact that the witness was not produced created the presumption that the testimony of the witness would have been unfavorable to the prosecution.
Points and Authorities
The defense should be “allowed to argue that the government’s failure to produce relevant evidence within its control gives rise to an inference that the evidence would be unfavorable to it [Citations].” (U.S. v. Tory (9th Cir. 1995) 52 F3d 207, 211; see also EC 412; CACI 203 [Party Having Power To Produce Better Evidence]; BAJI 2.02 [Failure To Produce Available Stronger Evidence]; cf., People v. Harrison (2005) 35 C4th 208, 254 [declining to decide whether instruction similar to Alternative a above is “consistent with Evidence Code section 412” ].) Hence, at a minimum, counsel should be able to so argue to the jury. (See FORECITE PG I(F) CAVEAT III discussing counsel’s right to argue correct statements of the law to the jury.
See also FORECITE F 300 Inst 6.
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]
FORECITE CG 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
FORECITE CG 7.1 [Right To Jury Consideration Of The Evidence]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CAVEAT: Alternate “a” should only be used where the instruction could be used against the defense.
CALJIC NOTE: See FORECITE F 2.11d.
F 300 Inst 6 (a & b) Failure Of Prosecution To Have Informant Witness Available
*Add to CC 300:
Alternative a:
The People failed to have the witness __________ <name or description> available due to the failure of the police agencies to exercise due diligence in ascertaining the identity and address of the witness [maintaining contact with the witness] during the course of their investigation.
Because of this failure, you must presume that the testimony of the witness, if [he] [she] were available, would be favorable to the defendant.
Alternative b [CACI 204]:
You may consider whether one party intentionally concealed or destroyed evidence. If you decide that a party did so, you may decide that the evidence would have been unfavorable to that party.
Points and Authorities
It is well settled that the confrontation clause of the Federal constitution (6th and 14th Amendments) requires the prosecution to exercise good faith and due diligence in obtaining and maintaining contact with confidential informants. (See Twiggs v. Superior Court (1983) 34 C3d 360, 365; Eleazer v. Superior Court (1970) 1 C3d 847, 851; cf., Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354] [recognizing importance of 6th Amendment right to confrontation]; see also Deerings EC 413, “Suggested Forms.” )
(See also FORECITE F 2.014a.)
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 4.5 [Right To Present Evidence And Fair Opportunity To Defend]
FORECITE CG 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
FORECITE CG 6.5 [Instructions Must Be Balanced Between Defense And Prosecution]
FORECITE CG 6.8 [Prosecution Misconduct: Lost Or Destroyed Evidence]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
See Annotation, Adverse Presumption Or Inference Based On State’s Failure To Produce Or Examine Informant In Criminal Prosecution—Modern Cases, 80 ALR4th 547 And Later Case Service.
CALJIC NOTE: See FORECITE F 2.11e.
F 300 Inst 7 Defense Not Obligated To Produce Evidence Or Call Witnesses
*Add to CC 300:
[You must remember, however, that the defendant is not obligated to produce any evidence or to call any witnesses.]
Points and Authorities
See FORECITE F 100.1 Inst 1.
See also Fed. Jud. Ctr., Pattern Jury Instructions(1988) Comment to Instruction # 39, p. 49.
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.