Return to Practice Guide Table of Contents
PG I(F) Strategy For Analysis And Preparation Of Jury Instructions At Trial.
CAVEAT I: Start Early So Investigation, Preliminary Hearing, Plea Negotiation and Theory of the Case Can Be Done with Full Awareness of Both the Beneficial and Detrimental Legal Rules Which Will Govern the Case.
CAVEAT II: Modification of CALJIC Should Be as Favorable as Possible to Your Client While Being Objectively Supportable. Proposed Modifications to CALJIC Will Probably Not Be Accepted Unless They Are Supported By A Persuasive Explanation as to Why the Modification is Necessary.
PRACTICE NOTE: Notwithstanding CAVEAT II, there are two reasons to request instructions even though they will be rejected. (1) It may be necessary to make the request to preserve an issue for appeal. (2) With some judges, it may increase the changes of getting the few instructions you really want if there are many other instructions which the judge has rejected. That is, some judge’s may be more willing to “throw you a bone” if they have rejected most of your other instructions. Obviously, this is a matter which depends upon the personal style of defense counsel and a case by case evaluation of the circumstances.
CAVEAT III: Even If An Instruction Request is Refused, It May Still Be Permissible to Argue the Point to the Jury.
(See FORECITE F 1.00l; see also People v. Sudduth (66) 65 C2d 543, 548 [55 CR 393] [in court’s discretion counsel may incorporate correct statements of the law into argument]; In re Wagner (81) 119 CA3d 90, 113-14 [173 CR 766] and Witkin cited therein; see also Annotation, Counsel’s right in criminal case to argue law or to read books to the jury, 67 ALR 2d 245 and Later Case Service; see also PG VI(C)(10).)
1. Start with the information or indictment — determine applicable statutes and statutory language.
2. Check annotations, texts, CALJIC, FORECITE, etc. to determine all statutory elements.
3. Refer to CALJIC instruction and determine whether it adequately defines the elements.
4. Using FORECITE and/or other sources, modify, expand or correct the CALJIC definition of — as necessary.
5. Do any affirmative defenses apply which would negate totally criminal liability? For example:
— Insanity
— Involuntary Intoxication
— Unconsciousness
— Mistake of Fact
— Lack of Knowledge
— Accident
— Alibi
— Entrapment
— Statute of Limitations
— Double Jeopardy (FORECITE F 4.007, et al.)
— Duress
— Necessity
— Self-Defense
— Claim of Right Good Faith Belief in Consent [e.g., robbery or theft] (FORECITE F 9.40a–c)
— Equitable Estoppel (FORECITE F 4.006, et al.)
— Improper Venue
— Territorial Jurisdiction
— No Corroboration of Extrajudicial Statement of Accomplice (FORECITE F 3.11b)
If so, refer to the CALJIC instruction, if any, and then to FORECITE and other resources to appropriately modify or supplement the CALJIC instruction.
6. Are defense theories available to negate elements of the charge such as actus reus, specific intent, knowledge, malice or other mens rea (e.g., premeditation, etc.):
— Defendant Didn’t Commit the Act (FORECITE F 4.51, et al.; FORECITE F 4.020, et al.)
— Provocation / Heat of Passion (FORECITE F 8.25, et al. FORECITE F 8.42, et al., FORECITE F 8.73, et al.)
— Intoxication (FORECITE F 4.21)
— Mental Impairment (FORECITE F 3.32)
— Physical Trauma (FORECITE F 4.010a)
— Mistake of Law (FORECITE F 4.36a)
— Unreasonable Duress (FORECITE F 4.40)
— Unreasonable Self-Defense (FORECITE F 5.17)
— Battered Women Syndrome (FORECITE F 9.35.1)
— Battered Child Syndrome (FORECITE F 9.35.1)
— Lack of Requisite Intent
If so, draft a pinpoint instruction using the FORECITE system (see FORECITE PG III(G)):
a. Identify and articulate the theory upon which you want a special instruction (e.g., the defendant did not brandish a firearm (i.e., exhibit in a rude, angry or threatening manner) because he drew the weapon in jest.)
b. Identify an approved CALJIC format or combination of formats for pinpoint instruction (e.g., CJ 2.40, CJ 2.91, CJ 4.21, CJ 4.30, CJ 4.50) which best suits your situation.
c. Adapt the CALJIC format to your theory by inserting the element to be negated and the theory upon which you are relying.
7. Are there any other matters upon which pinpoint instruction could be requested. Use your imagination because virtually anything can be the subject of a pinpoint instruction. The key is to phrase the instruction in generic terms relating a defense theory to an element of the charge. (See FORECITE PG III(A), below.)
8. Are there any instructional issues concerning derivative liability. For example:
— Aiding and Abetting
— Conspiracy
If so, refer to the appropriate CALJIC instructions, then update and modify with FORECITE and other resources.
9. Are there any issues regarding accomplices? For example:
— Testimony of Accomplice Must Be Corroborated
— Out-of-Court Statements of Accomplice Must Be Corroborated
— Non-accomplice Extrajudicial Statement Must Be Corroborated (FORECITE F 3.11b)
— Burden of Proving Accomplice (FORECITE F 3.19a)
— Accomplice as Matter of Law (FORECITE F 3.16 n2)
If so, check FORECITE and other sources for potential modifications, limitations, etc.
10. Are there any consciousness of guilt issues? For example:
— Flight (FORECITE F 2.52, et al.)
— False Statements (FORECITE F 2.03, et al.)
— Suppression of Evidence (FORECITE F 2.06, et al.)
If so, check FORECITE and other sources for potential modifications, limitations, etc.
11. Are there any evidentiary/burden/presumption issues? For example:
— Single Witness (CJ 2.27)
— Burden of Proof (CJ 2.90, CJ 2.91)
— ID (CJ 2.92)
— Evidence Dependent on Proof of a Preliminary Fact (FORECITE F 2.001a)
— Sufficiency of Circumstantial Evidence (CJ 2.01, CJ 2.02)
— Admissions (CJ 2.70, CJ 2.71, CJ 2.72)
— Defendant Testifying (CJ 2.62)
— Defendant Not Testifying (CJ 2.60, CJ 2.61)
— Expert Testimony (CJ 2.80)
— Lay Witness Opinion (CJ 2.81)
— See also FORECITE PG VII(C)
If so, check FORECITE and other sources for potential modifications, limitations, etc.
12. Are there any juror unanimity or multiple conviction issues?
Check CALJIC and FORECITE F 17.00, et al.
13. Are there any lesser included or lesser related offenses upon which you must request instruction.
CAVEAT IV: FORECITE Lesser Included Offenses Checklist. The FORECITE checklist (“LIO CHK”) will provide much information. However, it is not definitive as to any given case. First, there may be statutory lessers not identified in published cases. Second, even if there is no statutory lesser, there may be lessers based on the charging language. (See FORECITE F LIO I(A).)
— Review the Statutes for Included and Related Offenses
— Review CALJIC (5th Edition) Appendix Checklist.
— Review FORECITE “LIO” and “LRO”, As Well As the FORECITE Entry for the Charged Offense. CAVEAT: The FORECITE checklist will provide much information but it is not definitive as to any given case. First, there may be statutory lessers not identified in published cases. Second, even if there is not statutory lesser, there may be lessers based on the charging language. (See FORECITE F LIO I(A).)
— Consider Whether CJ 8.75 or CJ 17.10 should be given or modified. (See FORECITE entries for these.)
14. What cautioning and limiting instructions do you want?
Review Both CALJIC and Non-CALJIC Instructions. (See FORECITE F 2.001a, et seq.)
CAVEAT: You will have to make strategic decisions as to whether certain cautionary, prejudicial and limiting instructions do more harm than good by calling the jury’s attention to the matter.
[See FORECITE F 2.002a “CAVEAT”]
15. Did the prosecution commit misconduct such as destruction, suppression or failure to disclose evidence? (See FORECITE F 2.03e, FORECITE F 2.04d, FORECITE F 2.06b–c; FORECITE F 2.11, et al.)
16. Are special verdicts necessary or desirable?
See FORECITE PG VIII.
17. Are there federal constitutional issues which should be preserved by requested instruction or objection? (See FORECITE PG VII(C).)
18. Is everything you want from any unreported jury conference on the record?
NOTE: In noncapital cases, the reporter is required to report all “objections made” and “rulings to the court ….” (CCP 269; see also PC 190.9 [all in-chambers proceedings must be reported in capital cases].) Hence all in-chambers objections and rulings regarding jury instructions should be reported in every case. (See People v. Pinholster (92) 1 C4th 865, 920-23 [4 CR2d 765] [holding in chambers discussions part of the record on appeal but declining to decide whether “every” in chambers proceeding must be reported].) However, if counsel permits the in-chambers proceeding to go unreported (see People v. Gaston (78) 20 C3d 476, 485 [143 CR 205] [right to transcription may be waived], the rulings and objections should be put on the record. Otherwise, counsel on appeal will have to employ the problematical record settlement procedure. (See People v. Pinholster 1 C4th at 922; see also People v. Cummings (93) 4 C4th 1233, 1333, fn 68 [18 CR2d 796].)
