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FORECITE Fall 2008 Newsletter

Please note that this page only contains the table of contents of the Fall 2008 newsletter.

Please select the link below to download the latest FORECITE newsletter in its entirety.

Fall 2008 FORECITE NEWSLETTER
(Right Click on link and "Save As")


Fall 2008 FORECITE Newsletter
Table of Contents

PRACTICE GUIDE

PG II(E) Reference To Specific Facts/Witnesses
PG V(A)(8) Terms With Specialized/Technical Meaning: Sua Sponte Duty to Define
PG V(A)(9) Sua Sponte Duty Governed By Substantial Evidence Without Regard To Source Or Credibility Of The Evidence
PG V(A)(9.1) Defendant Need Not Testify To Require Instruction On Defense Theory
PG V(A)(9.2) Right To Instruction Must Not Be Based On A Binary Choice Between The Prosecution And Defense Evidence: Instruction On “Third Scenario” May Be Appropriate
PG V(B)(1) General Rules
PG V(B)(1.3) Requested Instructions: Doubts Resolved In Favor Of Defendant
PG V(B)(1.4) Duty To Instruct On Defense Theory: The Law Of The Case Doctrine
PG VI(A)(1.20) Cognizability Of Error Without Objection: Failure To Define Technical Term
PG VII(C)(43) Right To Confrontation: Hearsay Testimony—Crawford Update: Forfeiture By Wrongdoing: Forfeiture By Wrongdoing
PG IX(C)(4) Correct Regular Instruction Does Not Cure Improper Supplemental Instruction
PG IX(E)(3) Error In Supplemental Instruction More Likely To Be Prejudicial
PG X(A)(1.3) Evidence Must Be Viewed In Favor Of The Instruction
PG X(A)(1.3.1) Defendant’s Testimony Constitutes Substantial Evidence Even If Implausible And Seriously Contradicted
PG X(A)(1.3.2) Defendant’s Testimony Not Necessary For Instruction On Defense Theory
PG X(A)(1.3.3) Requested Instructions: Doubts Resolved In Favor Of Defendant
PG X(A)(1.3.4) Right To Instruction Must Not Be Based On A Binary Choice Between The Prosecution And Defense Evidence: Instruction On “Third Scenario” May Be Appropriate
PG X(A)(1.4.1) Sua Sponte Duty Governed By Substantial Evidence Without Regard To Source Or Credibility Of The Evidence
PG X(A)(1.4.2) General Rules
PG X(A)(1.7) Giving Of Defense Theory Instruction Demonstrates Existence Of Substantial Evidence In Support Of Defense Theory
PG X(E)(7) Erroneous or Incomplete Instructions In Response To Jury Inquiry

CALJIC

F 2.15 n15 Sua Sponte Duty To Instruct On Recent Possession Of Stolen Property
F 2.28 n2 Improper To Penalize Defendant For Counsel’s Discovery Violation
F 2.28 n3 Constitutional Challenge To Instruction Penalizing Defendant For Discovery Violation
F 3.32 n12 Whether Placing Defendant’s Mental State At Issue Permits Mental Examination Of Defendant By Prosecution
F 4.006a Equitable Estoppel/Entrapment by Estoppel
F 4.23a Involuntary Intoxication: Applies To Prescription Medicine
F 4.23b Involuntary Intoxication: Actual Or Constructive Knowledge Of Potential Intoxicating Effect
DP II(23.3) Checklist of Selected 6th/8th/14th Amendment Principles: PC 1376 Does Not Require Proof That Defendant Was Retarded At The Time Of The Crime.
F 9.40 n20 Robbery: Applicability To Forcefully Retaining The Property (Estes)
F 17.15a Arming: Weapon Must Be Close At Hand And Readily Accessible (PC 12022)
F 17.16b Weapon Use: Nexus Requirement
F 17.20 n12 Pregnancy Resulting In Abortion As GBI

CALCRIM

F 103.2 Inst 1 Prosecutor Must Prove Every Essential Fact
F 252 Note 3 Gun Use Only Requires General Intent
F 306 Note 1 Improper To Penalize Defendant For Counsel’s Discovery Violation
F 306 Note 2 Constitutional Challenge To Instruction Penalizing Defendant For Discovery Violation
F 306 Note 3 Argument Gambit: No Direct Inference Of Guilt Permitted
F 358 Inst 14 Modification When Record Includes Both “Verbal Acts” And “Admissions”
F 358 Note 1 Applicability To Admissions Not Offered For The Truth Of The Matter Asserted
F 370 Note 3 Defense Argument To Jury Allowed Jurors To Consider Motive-Based Defense
F 375 Inst 4 Uncharged Criminal Acts: Intent And/Or Mental State As Preliminary Fact
F 376 Note 13 Sua Sponte Duty To Instruct On Recent Possession Of Stolen Property
F 401.3 Inst 1 No Presumption That Alleged Perpetrator Committed The Alleged Crime
F 401 Note 8 Mere Presence: Argument Strategy
F 415.3 Inst 1 Instructions Should Not Assume A Conspiracy Has Been Proven
F 727 Note 3 Lying In wait: Additional Consideration Of Domino’s Rationale May Be Warranted
F 763.10
(Factor h) Note 1
Placing Defendant’s Mental State At Issue Permits Mental Examination Of Defendant By Prosecution
F 823 Note 12 Whether “Willingness” To Assume Care And Custody Is Required
F 850.2 Inst 1 Replace Cautionary Language Omitted By CALCRIM
F 852 Note 5 Permissive Inferences And Burden Of Proof
F 860.3 Inst 2 Assault: Consideration Of Whether Or Not Actual Injury Occurred
F 860.3 Inst 3 Deletion Of Argumentative Language—No Actual Touching Required
F 860.3 Inst 4 No Touching Required: Balance
F 860.3 Inst 5 Deletion Of Argumentative Language: No Intent Required
F 1070.4 Inst 2 Actual And Reasonable Belief That Victim Was 18 Or Over—Modification Of Burden Shifting Language
F 1191 Note 20 Permissive Inferences And Burden Of Proof: CJ 2.50.01 Versus CC 1191
F 1203.5 Inst 4 Concurrence Of Act And Intent
F 1225.3 Inst 2 Defense To Kidnapping: Who Has Burden Of Proof?
F 1401 Note 9 Intent Need Not Be Labeled “Specific”
F 1600 Note 19 Robbery: Applicability To Forcefully Retaining The Property (Estes)
F 1603.2 Inst 3 Robbery: Improper To Allow Aider And Abettor Liability Based On Intent Formed After The Perpetrator Has Carried The Property To A Place Of Temporary Safety (PC 189 & PC 211)
F 3115 Note 14 Arming: Nexus Requirement
F 3131 Note 1 Arming: Nexus Requirement
F 3145.5 Inst 4 Weapon Use: Nexus Requirement
F 3146 Note 13 Gun Use Only Requires General Intent
F 3146 Note 14 Definition Of "Displays A Firearm In A Menacing Manner”
F 3160 Note 15 Pregnancy Resulting In Abortion As GBI
F 3400 Note 1 Alibi: Instruction As Sanction For Defendant’s Discovery Violation
F 3427 Note 1 Involuntary Intoxication Based On Ingestion Of Prescription Medication
F 3428 Note 1 Whether Placing Defendant’s Mental State At Issue Permits Mental Examination Of Defendant By Prosecution
F 3454 Note 1 Argument Strategy: SVP Requires Impairment Of Ability To Control Violent Criminal Sexual Behavior
F 3500.1 Note 13 “Advice To Judges”
F 3500.4.4 Note 1 Jury Unanimity: More Than One Discrete Crime Of Theft
F 3517 Inst 1 Verdict As To Charged Lesser May Be Returned Before Verdict As To The Greater Offense
F 3517 Note 1 Lesser Included Update

ANNOTATED LIST OF CALCRIM INSTRUCTIONS
DISCUSSED IN THE CASE LAW

Forty-nine new annotations (over 160 annotations total) on over 90 CALCRIM instructions

APRIL 2008 CALCRIM REVISIONS
WITH FORECITE CRITIQUE AND COMMENTARY

RECENT CASE LAW UPDATE


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