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Importance Of Considering Instructions Before Trial
It is never too early to review and consider jury instructions. After all, jury instructions are founded upon the law and it is the law which governs the case. “Marshalling and selecting the evidence in preparation for trial cannot intelligently and effectively be done in a vacuum insulated from governing legal principles. And the bedrock legal principles which govern a criminal trial are the elements of the charged offense as spelled out in the statute. As the elements are elementary, so also is it elementary that the jury cannot possibly determine the material facts without reference to the elements of the charged offense upon which, perforce, it must be fully and accurately instructed.” (People v. Martin UNPUBLISHED (C012734) p. 9 fn 5 [taken from larger quotation in which the court urged “conscientious prosecutors” to avoid error by advance preparation of their “entire case”].) The court further observed that “this may seem like heresy to prosecutors who believe the assembling of instructions is a routine task for subordinates such as paralegals or secretaries.” Experience teaches that the same view is held by some defense counsel as well.
“Litigators who desire a special … instruction are less likely to get it if they simply wait for the end of the case and then request it. The best means for persuading a judge [to give a special instruction] is to wage a case-long campaign of education. Pre-trial motions [footnote omitted], offers of expert testimony [footnote omitted], and the cross-examination process [footnote omitted] should all have as their subsidiary goal the acceptance of a request for [a special] instruction.” (See Loftus and Doyle, Eyewitness Testimony (2d ed.) § 12.01, pp. 358-59.)
Hence, even before developing a trial or investigation strategy, counsel should be familiar with the appropriate jury instructions and any issues or developments relating thereto. (See Riordan and Gillette, California Criminal Law, (CEB, 1986), § 32.3, p. 671.) For example, if the defendant in a robbery case claims that he had a right to take the property, counsel would want to examine the possibilities for the claim of right instruction before fully investigating and developing this defense. (The claim of right defense is not included in CALJIC but is fully discussed in FORECITE at F 9.40a–b.)
Counsel may wish to seek an in limine ruling from the court as to what instructions and what particular language will be utilized. In this way, the presentation of the evidence can be tailored to the specific rules of law upon which the jury will be instructed. For example, the determination of whether or not to put the defendant on the stand may turn upon whether or not a particular jury instruction (e.g., establishing a defense) will be given. An in camera offer of proof before trial or an open court offer at the close of the prosecution’s case could provide a record of what the defendant’s testimony would have been absent refusal of the instruction. (See People v. Collins (86) 42 C3d 378, 394 [228 CR 899].)
Moreover, pretrial identification of potential issues or defenses may provide added leverage for plea bargaining. Many FORECITE subscribers have reported success in this regard.
From an appellate point of view, the record will be much stronger both in terms of preserving the issue and establishing prejudice if counsel has made it clear on the record that the refusal of the court to give the requested instruction impacted the defense strategy and in particular the presentation of evidence by the defense. It should be remembered, however, that in limine rulings are not binding and thus do not necessarily preserve issues for appeal. If an in limine request is denied it must later be renewed at trial unless the in limine motion complied with EC 353 or if there was an appropriate stipulation or court order. (People v. Morris (91) 53 C3d 152, 187-91 [279 CR 720]; People v. Karis (88) 46 C3d 612, 634, fn 16 [250 CR 659]; see also People v. Lucero (2000) 23 C4th 692 [97 CR2d 871, 885] [defendant’s pretrial objection was sufficient to preserve issue].)
(See FORECITE PG VI(A)(1.14).)
NOTE: The judge’s disbelief of the defendant’s testimony is not a valid reason for rejecting a requested instruction. (See FORECITE PG V(B)(1), “Requested Instructions: General Rules”.)