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PG III(D) Improper To Instruct On Defense Burden To Produce Evidence Or To Suggest That Defense Must “Raise” Or “Create” A Reasonable Doubt.
PG III(D)(1) No Instruction On Defense Burden Of Production.
The defendant has the “initial” burden regarding the facts underlying an instruction on a defense which negates an element of the charge. (People v. Neidinger (2006) 40 C4th 67, 75.) However, the jurors should never be instructed on the defendant’s burden of “going forward” with evidence since this is not material to the jurors’ deliberations. (See People v. Mentch (2008) 45 C4th 274, 292, concurring opn. [“The parties . . . agree that . . . The court should not instruct the jury on any defense burden . . . trial courts might well be advised to be cautious before instructing on any defense burden”]; see also People v. Deloney (1953) 41 C2d 832, 840-42; People v. Cornett (1948) 33 C2d 33, 42-44.) In a criminal context the need for clarity on the essential notion of burden of persuasion is critical. Telling jurors that the defendant must prove something poses the very real risk that they may misunderstand the burden of production to be one of persuasion, and thus mistakenly shift to him a greater burden than he may legally be compelled to carry. (See People v. Kelley (1980) 113 CA3d 1005, 1012-13; see also generally PG VII(C)(8) [Improper Shifting Of The Burden Of Proof]; but see People v. Frazier (2005) 128 CA4th 807 [CJ 12.24.1 accurately states that the defendant has the obligation to raise a reasonable doubt on the issue of compassionate use].)
The presumption of innocence relieves the defendant of the obligation to present any evidence at all. (See FORECITE F 100.1 Inst 1.) Hence, instructions that the defendant must “raise” or “create” a reasonable doubt undermines the prosecution’s burden of proof in violation of the federal constitution. (See Cutshall v. U.S. (6th Cir. 1958) 252 F2d 677, 679 [potentially burden shifting to instruct that the jurors must be “convinced” that a reasonable doubt exists in order to acquit].)
Defendant’s burden consists solely of “producing evidence” to support the defense. (People v. Loggins (1972) 23 CA3d 597, 603.) Once the evidence is admitted by the court, it is error to instruct the jury that the defendant bears a burden of proof. (Id. at pp. 601-604 [court held that former CJ 5.15 was erroneous insofar as it instructed the jury that “the burden is on the defendant to raise a reasonable doubt” regarding his self defense theory].) Language requiring that the evidence “create” or “raise” a reasonable doubt “can be interpreted as shifting the burden to [the] defendant to prove that he did not commit the crime ….” (People v. Branch (NY 1996) 637 NYS2d 892; see also People v. Victor (NY 1984) 465 NE2d 817.)
If the court has determined that an instruction should be given, the issue of production has already been resolved and the jury need not consider it further. That aspect of “who bears the burden [of production]” has been disposed of by the court’s ruling. (See generally EC 402.) What the jury must determine is whether the evidence produced could leave the jury with a reasonable doubt. (See People v. Adrian (1982) 135 CA3d 335, 342.) Instructing the jury that they must acquit if they have a reasonable doubt on the issue properly allocates the burden without running the risks of misapplication outlined above. (See People v. Loggins (1972) 23 CA3d 597, 601-4 [former CJ 5.15 was erroneous insofar as it instructed the jury that “the burden is on the defendant to raise a reasonable doubt” regarding his self defense theory]; see also, e.g., CC 2360; CC 2500; CC 2801; CC 2962; CC 3400.)
Moreover, any instruction which improperly shifts the burden of proof to the defense violates the Due Process and Trial by Jury Clauses of the Sixth and Fourteenth Amendments to the federal constitution. (See In re Winship (1970) 397 US 358 [25 LEd2d 368; 90 SCt 1068]; County Court of Ulster County v. Allen (1979) 442 US 140, 157; Franklin v. Francis (1985) 471 US 307, 313-15 [85 LEd2d 344]; Carella v. California (1989) 491 US 263, 265-66 [105 LEd2d 218; 109 SCt 2419]; see also People v. Hill (1998) 17 C4th 800; People v. Woods (2006) 146 CA4th 106, 112-13; FORECITE PG VII(C)(6).)
Nor do the general burden of proof instructions (e.g., CC 220; CJ 2.90) adequately describe the prosecution’s burden as to affirmative defenses. (See People v. Adrian, supra, 135 CA3d at 342; see also People v. Brown (1984) 152 CA3d 674, 677-78 [199 CR 680] [Former CALJIC 2.91 and 2.20 ‘are not alone sufficient to render the failure to give requested instruction linking reasonable doubt to identification harmless error’].) All CJ 2.90 does is tell the jury that a reasonable doubt as to “guilt” warrants an acquittal. (See Adrian, 135 CA3d at 342.) This instruction works fine when the jury is reviewing the elements of the offense. But as to a defense theory such as accident, the absence of a specific burden instruction erroneously suggests that the defendant is required to prove his or her theory before the defense is applicable.
PG III(D)(2) Inconsistency Among Standard Instructions.
People v. Balint UNPUB’D (2011, B225251) 2011 Cal. App. Unpub. LEXIS 3174, 20-22 made the following observation about CALJIC and CALCRIM:
“The inconsistency within CALJIC is not confined to those two instructions [CJ 4.00 and 4.43]. Some CALJIC instructions on defenses state that the prosecution has the burden of disproving the defense beyond a reasonable doubt or that the jury must acquit if it has a reasonable doubt as to the defense. (See CALJIC No. 4.21 [voluntary intoxication]; CALJIC No. 4.30 [unconsciousness]; CALJIC No. 4.47 [mental incapacity]; CALJIC No. 4.50 [alibi]; CALJIC 4.80 [parent’s right to discipline child]; CALJIC No. 5.15 [excusable or justifiable homicide].) Other CALJIC instructions state that the defendant has the burden of proving the defense by a preponderance of the evidence. (See CALJIC No. 4.00 [insanity]; CALJIC No. 4.43 [necessity]; CALJIC No. 4.60 [entrapment].) But several others, like CALJIC No. 4.40, say nothing about the burden of proof. (See CALJIC No. 4.23 [involuntary intoxication]; CALJIC No. 4.35 [mistake of fact]; CALJIC No. 4.45 [accident]; CALJIC No. 5.17 [unreasonable self-defense]; CALJIC No. 5.30 [self-defense against assault]; CALJIC No. 5.31 [self-defense with deadly weapon against assault with fists]; CALJIC No. 5.32 [defense of another against assault]; CALJIC Nos. 5.40-5.43 [defense of property].)
The CALCRIM instructions are an improvement in this respect but still exhibit a similar inconsistency. The CALCRIM instruction on duress includes a bracketed instruction concerning the burden of proof, but the bench notes do not explain when the bracketed instruction should be used or when (if ever) it should be omitted. (See CALCRIM No. 3402.) The CALCRIM instruction on involuntary intoxication likewise says nothing about the burden of proof. (See CALCRIM No. 3427.) In general, however, other CALCRIM instructions on defenses do identify the burden of proof. Some state that the prosecution has the burden of disproving the defense beyond a reasonable doubt or that the jury must acquit if it has a reasonable doubt as to the defense. (See CALCRIM No. 3400 [alibi]; CALCRIM No. 3405 [parental right to punish child]; CALCRIM No. 3406 [mistake of fact]; CALCRIM No. 3425 [unconsciousness]; CALCRIM No. 3426 [voluntary intoxication]; CALCRIM No. 3428 [mental impairment]; CALCRIM No. 3470 [self-defense or defense of another against assault]; CALCRIM Nos. 3475-3476 [defense of property].) And other CALCRIM instructions state that the defendant has the burden of proving the defense by a preponderance of the evidence. (See CALCRIM No. 3403 [necessity]; CALCRIM No. 3408 [entrapment]; CALCRIM No. 3450 [insanity]; CALCRIM No. 3455 [mental incapacity].)
When instructing a jury on defenses, the better practice would be to instruct the jury on who has what burden with respect to each defense. Some (but not all) CALJIC instructions do that, and some more (but still not all) CALCRIM instructions do it as well. We urge the drafting committees to review this issue with the aim of providing a uniform treatment that will give juries uniformly explicit guidance on the proper burden to be applied.”
ALERT: In its Fall meeting the CALCRIM Committee may be addressing the burden issue in its discussion of the defense of consent. (See FORECITE Commentary to April 29, 2011 Revisions, CC 1202.) [NF]
PG III(D)(3) Prosecution Must Litigate Whether Or Not The Evidence Raises A Reasonable Doubt In An EC 402 Hearing
As discussed in FORECITE PG III(D)(1) above, the question of whether or not defense evidence raises a reasonable doubt goes to the burden of production not the burden of proof. Hence, the proper forum for litigation of such issues is an Evidence Code § 402 (EC 402) hearing outside the presence of the jurors. (See FORECITE F 12.24.1 n12.)