SERIES 300 EVIDENCE
F 350 Character of Defendant
TABLE OF CONTENTS
F 350 Inst 1 Jurors Must Consider Good Character Evidence
F 350 Inst 2 Use Of The Phrase “Create A Reasonable Doubt“ Erroneously Implies A Defense Burden
F 350 NOTES
F 350 Note 1 Character Evidence: Right To Expert Testimony
F 350 Note 2 Admission Of Irrelevant Character Evidence Violates Federal Due Process
F 350 Note 3 Character Evidence: Good Character Evidence May Not Be Rebutted With Prior Convictions
F 350 Note 4 Character Evidence: The Defense Should Be Permitted To Present Expert And Lay Opinion Testimony That The Defendant Does Not Have The Character Of A Sexual Assailant
Return to Series 300 Table of Contents.
F 350 Inst 1 Jurors Must Consider Good Character Evidence
*Modify CC 350, paragraph 1 as follows [deleted language is stricken]:
You have heard character testimony that the defendant …
*Modify paragraph 2 as follows [added language is underlined; deleted language is stricken]:
You may take Consider that testimony into consideration along with all the other evidence …
Points and Authorities
See FORECITE F 105.2 Inst 1.
F 350 Inst 2 Use Of The Phrase “Create A Reasonable Doubt” Erroneously Implies A Defense Burden
*Modify CC 350, paragraph 3, sentence 1 as follows [added language is underlined; deleted language is stricken]:
… can by itself create leave you with a reasonable doubt as to the defendant’s guilt.
Points and Authorities
“Leave You With” vs. “Create.”—See FORECITE PG III(D).
As To Defendant’s Guilt.—The question of reasonable doubt relates to the defendant’s guilt.
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 350 NOTES
F 350 Note 1 Character Evidence: Right To Expert Testimony
The defense has the right to present expert testimony that the defendant is not deviant or abnormal. (People v. Stoll (1989) 49 C3d 1136, 1152-53; see also People v. Ruiz (1990) 222 CA3d 1241, 1243-46.)
When the defendant’s expert character testimony is central to the defendant’s claim of innocence, it may be argued that exclusion of the evidence violates the defendant’s federal constitutional rights to due process, compulsory process and confrontation under the 6th and 14th Amendments of the federal constitution. (See e.g., Crane v. Kentucky (1986) 476 US 683, 690 [90 LEd2d 636; 106 SCt 2142]; Chambers v. Mississippi (1973) 410 US 284 [35 LEd2d 297; 93 SCt 1038]; People v. Roberts (1992) 2 C4th 271, 302.) [See Brief Bank # B-674for additional briefing.]
[RESEARCH NOTE: See FORECITE BIBLIO 2.40 – 2.43]
CALJIC NOTE: See FORECITE F 2.40 n1.
F 350 Note 2 Admission Of Irrelevant Character Evidence Violates Federal Due Process
McKinney v. Rees (9th Cir 1993) 993 F2d 1378, 1380-82, held that admission of emotionally charged character evidence to show propensity which is irrelevant to any issues in the trial violates the due process clause of the Federal Constitution (14th Amendment) and provides the basis for a grant of relief on federal habeas. (See also Henry v. Estelle VACATED 52 F3d 809 (9th Cir. 1993) 993 F2d 1423, 1427-28 [evidence of remote uncharged conduct of child molest by defendant violates due process].)
[Research Note: See FORECITE BIBLIO 2.40 – 2.43]
CALJIC NOTE: See FORECITE F 2.40 n2.
F 350 Note 3 Character Evidence: Good Character Evidence May Not Be Rebutted With Prior Convictions
People v. Felix (1999) 70 CA4th 426, 432 held that the California Constitution’s Truth in Evidence clause (Cal. Const., art. I, §28) did not abrogate the Evidence Code’s foundational criteria for the admission of character evidence (EC 1101, EC 1102). EC 1101(a) generally excludes evidence of character or a trait of character to prove a person’s conduct on a specified occasion. EC 1102 creates an exception in criminal cases for evidence “in the form of an opinion or … reputation,” but not specific instances of conduct. Therefore, it is error to admit prior convictions in rebuttal of good character evidence, as they constitute evidence of a specific act. (Felix, 70 CA4th at 432.)
CALJIC NOTE: See FORECITE F 2.40 n3.
F 350 Note 4 Character Evidence: The Defense Should Be Permitted To Present Expert And Lay Opinion Testimony That The Defendant Does Not Have The Character Of A Sexual Assailant
See Article Bank # A-95for an article on this issue, “Evidentiary Issues Frequently Arising In Sex Cases” by Dallas Sacher.
CALJIC NOTE: See FORECITE F 2.40 n4.
