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PG I(A) Making Jury Instructions Part Of The Adversarial Process.
With the advent of the CALCRIM instructions there may be a tendency to view jury instructions as a more or less non-adversarial process. However, jury instructions continue to be an important part of the adversarial process for many reasons.
First, early consideration of instructional issues can help attorney’s more effectively represent criminal defendant at virtually every stage of the process. (See PG I(D).) Proactive jury instruction advocacy can help with:
- Pretrial Strategy and Investigation
- Plea Bargaining
- Pretrial Motions
- Evidentiary Issues
- Opening Statement
- Closing Argument
- Preservation Of Appellate Issues
Second, despite Judicial Council approval of the CALCRIM instructions, they are no more sacrosanct than was CALJIC. (See PG XI(A)(1).) This is so for many reasons including the following:
- The Trial Judge Has Broad Inherent Discretion Over Jury Instructions. (PG XI(A)(2).)
- The Endorsement Of CALCRIM By The Rules Of Court Is Merely A Non-Binding Recommendation. (PG XI(A)(3).)
- A Court’s Inherent Discretionary Powers And Duties Supersede Any Recommendation By The Rules Of Court. (PG XI(A)(3.1).)
- The Federal Constitution Supersedes The Rules Of Court. (PG XI(A)(3.2).)
- Like CALJIC, CALCRIM Is Not Sacrosanct. (PG XI(A)(3.3).)
- Instructional Authority Also Comes From The Federal Constitution. (PG XI(A)(4).)
- The Court Rules Anticipate That Non-CALCRIM Instructions Be Considered. (PG XI(A)(5).)
- The Court Rules Anticipate That Non-CALCRIM Instructions Be Given. (PG XI(A)(6).)
- The Court Rules Anticipate The Giving Of Modified CALCRIM Instructions. (PG XI(B)(2).)
- Rule 855(e) Erroneously Assumes That The Only Role Of Jury Instructions Is To “State The Law.” (PG XI(B)(3).)
Third, in cases where the judge still uses CALJIC counsel will need to be especially cautious because the Superior Court of Los Angeles stopped maintaining CALJIC after CALCRIM was adopted. (See U.S. v. Vidal (9th Cir. 2007) 504 F3d 1072, 1084.)
