SERIES 400 AIDING AND ABETTING, INCHOATE, AND ACCESSORIAL CRIMES
F 418 CO-CONSPIRATOR’S STATEMENTS
TABLE OF CONTENTS
F 418.1 CO-CONSPIRATOR’S STATEMENTS: TITLE AND IDENTIFICATION OF PARTIES
F 418.1 Inst 1 Co-Conspirator’s Statements—Title
F 418.1 Inst 2 Identification Of Prosecution And Defendant
F 418.2 CO-CONSPIRATOR’S STATEMENTS: TAILORING TO FACTS: PERSONS, PLACES, THINGS AND THEORIES [RESERVED]
F 418.3 CO-CONSPIRATOR’S STATEMENTS: LANGUAGE THAT IS ARGUMENTATIVE, CONFUSING, ETC. [RESERVED]
F 418.4 CO-CONSPIRATOR’S STATEMENTS: BURDEN OF PROOF ISSUES
F 418.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 418.4 Inst 2 Co-Conspirator’s Statements: Even If Preponderance Standard Is Met Jurors May Not Rely On The Statements To Convict If They Are An Essential Fact
F 418.4 Inst 3 Relating Alleged Co-Conspirator Membership In The Conspiracy To Presumption Of Innocence
F 418.4 Inst 4 Co-Conspirator Statements: Prosecution Must Prove That Co-Conspirator Made The Statement Before The Object Of The Conspiracy Was Accomplished
F 418.4 Inst 5 Jurors Should Understand That Preponderance Standard Is Less Stringent Then Proof Beyond A Reasonable Doubt
F 418.5 CO-CONSPIRATOR’S STATEMENTS: ELEMENTS [RESERVED]
F 418.6 CO-CONSPIRATOR’S STATEMENTS: DEFENSE THEORIES [RESERVED]
F 418.7 CO-CONSPIRATOR’S STATEMENTS: PRELIMINARY FACT ISSUES [RESERVED]
F 418.8 CO-CONSPIRATOR’S STATEMENTS: UNANIMITY/DUPLICITY/MULTIPLICITY [RESERVED]
F 418.9 CO-CONSPIRATOR’S STATEMENTS: LESSER OFFENSE ISSUES [RESERVED]
Return to Series 400 Table of Contents.
F 418.1 Co-Conspirator’s Statements: Title And Identification Of Parties
F 418.1 Inst 1 Co-Conspirator’s Statements—Title
See generally FORECITE F 200.1.2 Note 2; CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 418.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 418.2 Co-Conspirator’s Statements: Tailoring To Facts: Persons, Places, Things And Theories[Reserved]
F 418.3 Co-Conspirator’s Statements: Language That Is Argumentative, Confusing, Etc.[Reserved]
F 418.4 Co-Conspirator’s Statements: Burden Of Proof Issues
F 418.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 418.4 Inst 2 Co-Conspirator’s Statements: Even If Preponderance Standard Is Met Jurors May Not Rely On The Statements To Convict If They Are An Essential Fact
*Add to CC 418:
Alternative a [CALCRIM 575 Format]:
If you conclude that requirements for consideration of the alleged statement have been proven by a preponderance of evidence, please remember that the statement is only one factor to consider with all the other evidence. The statement[s] [is] [are] not sufficient by [itself] [themselves] to prove beyond a reasonable doubt that the defendant is guilty of _______<insert charged offense[s]>. The People must still prove each element of (the/every) charge beyond a reasonable doubt.
Alternative b [CALCRIM 376 Format]:
Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved 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.]
Facts Proved By A Preponderance Of Evidence Are Not Sufficient To Convict— See Sullivan v. Louisiana (1993) 508 US 275, 278-81 [113 SCt 2078; 124 LEd2d 182]; In re Winship (1970) 397 US 358, 363 [90 SCt 1068; 25 LEd2d 368]; see also FORECITE F 418.4 Inst 5.
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 418.4 Inst 3 Relating Alleged Co-Conspirator Membership In The Conspiracy To Presumption Of Innocence
See FORECITE F 417.4 Inst 2.
F 418.4 Inst 4 Relating Acts Done After Accomplishment Of Conspiracy Goals To Presumption Of Innocence
F 418.4 Inst 4 Co-Conspirator Statements: Prosecution Must Prove That Co-Conspirator Made The Statement Before The Object Of The Conspiracy Was Accomplished
*Add to CC 418 Elements:
5. _______________ <name[s] of co-conspirator[s]> made the alleged statement[s] before the [object] [goal] of the conspiracy had been accomplished.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Propriety Of Instruction—A co-conspirator statement is not admissible unless it was made before the goal or object of the conspiracy had been accomplished. (People v. Samuels (2005) 36 C4th 96, 121; see also FORECITE F 417.3 Inst 2.) CALCRIM addresses this issue in the last paragraph but erroneously fails to instruct it in the required elements. (See generally EC 403, FORECITE F 319 Inst 1.)
Identification Of Parties—See FORECITE F 100.2 Note 1.
See also FORECITE F 417.4 Inst 3.
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 5.7 [Preliminary Facts]
FORECITE CG 5.13 [Due Process Underpinnings Of Accomplice Cautionary Instruction]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 418.4 Inst 5 Jurors Should Understand That Preponderance Standard Is Less Stringent Then Proof Beyond A Reasonable Doubt
*Modify CC 418, paragraph 3, sentence 1 as follows [added language is underlined; deleted language is stricken]:
Proof by a preponderance of the evidence is a different lesser standard of proof than proof 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 CALCRIM Deficiency: Jury Could Consider Preponderance To Be A Higher Standard Than Proof Beyond A Reasonable Doubt—Without the above modification, the jurors could erroneously assume that the preponderance standard is greater then proof beyond a reasonable doubt and convict based on the preponderance standard. (See e.g., People v. Danks (2004) 32 C4th 269 [recognizing that jurors make unwarranted assumptions about instructions which are not specifically spelled out].) Any lessening of the prosecution’s burden to prove guilt beyond a reasonable doubt would violate the state and federal constitutions. (See generally Sullivan v. Louisiana (1993) 508 US 275 [113 SCt 2078; 124 LEd2d 182].)
The presumption of innocence is alone sufficient to acquit the defendant and that a reasonable doubt as to guilt may be based on a lack of evidence or a conflict in the evidence. (People v. Hill (1998) 17 C4th 800; see also Taylor v. Kentucky (1978) 436 US 478 [56 LEd2d 468; 98 SCt 1930]; United States v. Hollister (8th Cir. 1984) 746 F2d 420, 424.)
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 418.5 Co-Conspirator’s Statements: Elements[Reserved]
F 418.6 Co-Conspirator’s Statements: Defense Theories[Reserved]
F 418.7 Co-Conspirator’s Statements: Preliminary Fact Issues[Reserved]
F 418.8 Co-Conspirator’s Statements: Unanimity/Duplicity/Multiplicity[Reserved]
F 418.9 Co-Conspirator’s Statements: Lesser Offense Issues[Reserved]