PG VI(C) Duty To Request Instructions. PG VI(C)(1) General Rules: Counsel has duty to carefully prepare and request all instructions which in his or her judgment are necessary to explain all legal theories upon which the defense rests. (In re Cordero (88) 46 C3d 161, 189 [249 CR 342]; People v. Sedeno(74) 10 C3d 703, 717, fn 7 [112 CR 1].) All non-sua sponte instructions must be requested. These include limiting, amplifying, pinpoint and lesser related offense instructions. (But see People v. Horning (2004) 34 C4th 871, 909 [sua sponte cautionary or limiting instruction only required where the evidence was both highly prejudicial and minimally relevant to any legitimate purpose and was a dominant part of the evidence against the accused]; People v. Lang (89) 49 C3d 991, 1020 [264 CR 386] [recognizing sua sponte duty to give cautionary instructions in “extraordinary circumstances”]; People v. Milner (88) 45 C3d 227, 251-52 [246 CR 713]; People v. Collie (81) 30 C3d 43, 63-64 [177 CR 458].) If counsel fails to request an instruction, there is a danger that the issue will be waived for appeal. For example, invited error is becoming a common basis by which reviewing courts avoid consideration of appellate issues. Similarly, the sua sponte duties of the trial court are being limited. (See People v. Cox (90) 221 CA3d 980, 987-91 [270 CR 730], finding no sua sponte duty to instruct on drug intoxication without specific evidence of the drug’s effect.) Clarifying Or Amplifying Language. “‘Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.’ [Citation.]” (People v. Guiuan (98) 18 C4th 558, 570 [76 CR2d 239].) Invited Error. (See People v. Jackson (96) 13 C4th 1164, 1223 [56 CR2d 49] [Any errors as to consciousness of guilt instructions (CJ 2.03, CJ 2.04 and CJ 2.52) were waived by the invited error doctrine where defendant joined in requesting the instructions].) See PG X(K) re: duty of appellate counsel to raise instructional issues on appeal.
PG VI(C)(1.1) A Cautionary Or Limiting Instruction Should Not Be Given Over A Tactical Objection By The Party Who Benefits From The Instruction.
It is well settled that “whether to seek a limiting instruction is a tactical decision properly left to defense counsel, since defense counsel might conclude that the risk of a limiting instruction [e.g., unnecessarily highlighting a defendant’s status as a felon] outweigh[s] the questionable benefits such an instruction would provide. [Citations.]” (People v. Griggs (2003) 110 CA4th 1137, 1141; see also People v. Carter (2003) 30 C4th 1166 [defendant may object to instruction on adoptive admissions [CJ 2.71.5] because it might “cause the jury to place undue significance on bits of testimony that the defendant would prefer it not examine so closely”]; People v. Phillips (85) 41 C3d 29, 73, fn. 25 [for similar reasons, a court has no sua sponte duty to instruct on the elements of other crimes at the penalty phase of a capital trial]; People v. Maury (2003) 30 C4th 342, 394 [defense counsel not incompetent for failing to request a limiting instruction on cross-admissible evidence [CJ 2.50] where a “reasonable attorney may have tactically concluded that the risk of a limiting instruction … outweighed the questionable benefits such instruction would provide”]; People v. Hawkins (1995) 10 C4th 920, 942 [a reasonable defense counsel may have concluded that the risks of issuing a limiting instruction re: cross-admissible evidence was not worth the questionable benefits such instruction would provide];People v. Johnson (1993) 6 C4th 1, 49, 50 [counsel may have deemed it tactically unwise to call further attention to defendant’s prior offenses by requesting special instructions].)
As the California Supreme Court explained in People v. Ramos (84) 37 C3d 136, 159 the defendant should be permitted to “assess the relative cost and benefit of a cautionary instruction. . . .”
Moreover, CC 3513 provides that anyone “may waive the advantage of a law intended only for his benefit.”
Accordingly, even well established instructions such as flight (CJ 2.52/CC 372), false statements (CJ 2.03/CC 362) and possession of stolen property (CJ 2.15/CC 376) should not be given over defense objection because those instructions have been held to be for the benefit of the defendant. (See People v. Goodwin (97) 59 CA4th 1084 [CJ 0.50]; People v. Duran (76) 16 C3d 282, 291-92 [CJ 1.04]; People v. Ramirez (97) 55 CA4th 47, 58 [CJ 1.12]; People v. Kelly(92) 1 C4th 495 [CJ 2.03]; People v. Harden (2003) 110 CA4th 848, 857 [CJ 2.15]; People v. Han (2000) 78 CA4th 797, 807 [CJ 2.52]; People v. Jones (98) 17 C4th 279, 312 [CJ 8.85(b)]; see also People v. Gibson (71) 133 Ill.App.2d 722 [272 NE2d 274] [“It should be the prerogative of the defendant to determine whether such an instruction is beneficial to his defense or whether it would only serve to accentuate his past criminal record”]; People v. Lee (76) 44 Ill.App.3d 43 [357 NE2d 888] [“defendant should be the one who decides whether, as a matter of trial strategy, this instruction would benefit him or whether it would unduly emphasize to his detriment the fact that he did not testify”]; State v. Stewart(79) 276 NW2d 51 [“decision to instruct the jury on the use of restraints is left with defense counsel. We believe this to be the better rule since any imposition of a requirement of sua sponte instructions by the trial court transfers the trial strategy from defense counsel to the trial judge.”]; Commonwealth v. Rasheed (94) 536 Pa. 567 [640 A2d 896] [defendant himself will normally be in the best position to decide whether or not the giving of the instruction will limit jury’s consideration of defendant’s failure to testify]; State v. Cassel (70) 48 Wis.2d 619, 625-26 [180 NW2d 607] [such instructions may do more harm than good and therefore defense counsel should be given the opportunity and responsibility to determine his own trial technique and whether or not he wants an instruction given in such a situation]; Beintema v. State (Wyo. 1997) 936 P2d 1221, 1227 [counsel may, as a matter of trial strategy, choose not to request limiting instruction in order to avoid emphasizing unfavorable evidence].)
Finally, the Supreme Court in People v. Najera (2008) 43 C4th 1132, 1139 (Najera), held that a trial court has no sua sponte duty to give CC 376 because it is merely a more specific application of general instructions governing circumstantial evidence. (Najera, at p. 1138.) The court’s reasoning in Najera applies equally to similar sorts of instructions including those on consciousness of guilt. The court explained: “Where . . . an instruction simply informs the jury that a fact or cluster of facts is not, without more, substantial evidence of guilt under the ordinary legal rules set forth elsewhere in the instructions, we have not imposed a duty on trial courts to provide such an instruction sua sponte. For example, the instructions concerning consciousness of guilt (CALJIC Nos. 2.03, 2.04, 2.05 & 2.06) recite that such evidence is not sufficient by itself to prove guilt, yet we have never held that the trial court has a sua sponte duty to instruct the jury accordingly. (See Judicial Council of Cal., Crim. Jury Instns. (Fall 2007) Bench Notes to CALCRIM No. 371 [‘No authority imposes a duty to give this instruction sua sponte’].) . . . As the Court of Appeal pointed out below, ‘an instruction that tells the jury what kinds of rational inferences may be drawn from the evidence does not provide any insight jurors are not already expected to possess.’ [Citation.] Such instructions, while helpful in various circumstances, are not vital to the jury’s ability to analyze the evidence and therefore are not instructions that must be given to the jury even in the absence of a request.” (Najera, supra, 43 C4th at p. 1139, fn. omitted.)
PG VI(C)(2) Form of Request: a. Cover Page And Index. Each set of proposed instructions must have a cover page and index comporting with Rule 2.1055(b)(2) and (3). b. “Bound Loosely.” The proposed instructions must be “bound loosely.” (Rule 2.1055(b)(4).) c. Each Proposed Instruction Must Be On A Separate Page. (Rule 2.1055(c)(1).) d. Instruction Number And Title. The number and title of each proposed instruction must be at the top of the first page of the instruction. (Rule 2.1055(c)(2).) e. Proposed Instructions Must Be Ready To Be “Read Directly To The Jury.” The proposed instructions must not contain any blanks or unused bracketed portions. (Rule 2.1055(c)(3).) f. Authorities Required For Special Instructions. Each special instruction request must be supported by citation to authority. (Rule 2.1055(d).) Moreover, when a requested instruction is a modified CALJIC or CALCRIM instruction, the party should indicate “by use of parenthesis or other appropriate means” the respect in which it is modified. (Former California Rules of Court, Division I, Appendix §5, Judicial Admin. Standards.) Counsel should also explain why the pattern instruction was deficient and why the proposed instructions would “better serve the interest of justice” (People v. Rupe (1988) 206 CA3d 1537, 1542) or “more accurately state the law and be understood by the jury.” (Rule 2.1050(e); see also CALCRIM Motion Bank # CCM-001.)
PG VI(C)(2.1) Duty To Request Instructions: Whether Instruction Request Must Be In Writing. The general assumption is that instruction requests must be in writing. (See People v. Terry (69) 70 C2d 410, 420 fn. 4.) However, neither of the statutes Terry cites (PC 1127 and PC 1093.5) precisely say that the request must be in writing. Rule of Court 2.1055 (formerly Rule 229) does say that, but it is not an absolute prerequisite since it provides that the court “may” refuse the request if it doesn’t conform with the rule. (Terry considered the oral request on the merits; see also People Gardino (2000) 82 CA4th 454, 459 [considering oral request on the merits].)
PG VI(C)(3) When To Request: All requested instructions must be submitted before argument. (PC 1093.5.) However, if argument raises issues not covered by the instructions, counsel may propose additional instructions. (PC 1093.5.)
PG VI(C)(4) Failure to Request Necessary Jury Instructions as IAC: Trial counsel has a duty to request proper jury instructions and the failure to do so may constitute ineffective assistance of counsel. (See People v. Sedeno (74) 10 C3d 703, 717, n 7 [112 CR 1] discussing trial counsel’s duty to request proper instructions; see also, In re Cordero (88) 46 C3d 161, 189-91 [249 CR 342], J. Mosk, conc.; U.S. v. Span (9th Cir. 1996) 75 F3d 1383 [trial counsel’s failure to request instruction on one of four available defenses violated defendant’s right to effective assistance of counsel]; Woodard v. Sargent (8th Cir. 1986) 806 F2d 153, 157; Arrowood v. Clusen (7th Cir. 1984) 732 F2d 1364, 1371-72; Lankford v. Foster (W.D. Va. 1982) 546 F Supp 241, 249-53; People v. Gonzales (75) 543 P2d 72, 73-74 [37 ColoApp 8]; Patterson v. Dahm (D.Neb 1991) 769 F Supp 1103, 1108-13 [IAC for requesting instruction on uncharged lesser related offense]; People v. Jaffee (86) 493 NE2d 600, 610-11 [145 IllApp3d 840] [IAC for failure to request self-defense instructions]; People v. Butler (74) 318 NE2d 680, 683 [23 IllApp3d 108] [IAC for requesting erroneous definition of the standard of proof and failure to request accomplice instructions]; see also, Freeman v. Class (8th Cir. 1996) 95 F3d 639 [counsel ineffective for failing to request “cautionary instructions to which defendant was entitled under state law”]; Luchenburg v. Smith (4th Cir. 1996) 79 F3d 388, 392 [counsel ineffective for failure to request instruction accurately explaining state law precluding conviction on compound gun charge unless jury first found defendant guilty of predicate crime of violence]; People v. Marshall UNPUBLISHED (F016198) [failure to request antecedent threat instruction (FORECITE F 5.12a) held to be IAC] [A copy of the Marshall opinion is available to FORECITE subscribers. Ask for Opinion Bank # O-131.]; Kennedy v. State (Florida) (94) 637 So.2d 987, 988 [failure to request lesser included cognizable on collateral attack]; Bateson v. State (Fla. 1987) 516 So.2d 280 [same]; State v. Howard (89) 537 NE2d 188, 195 [42 Ohio St. 3d 18] [“failure of defendant’s former counsel to raise error on direct appeal concerning giving of improper Allen charge as supplemental instruction to deadlocked jury constituted ineffective assistance of counsel”]; Commonwealth v. Stonehouse (89) 555 A2d 772 [521 Pa. 41] [trial counsel ineffective in failing to request jury instruction in homicide trial which would require jury to consider cumulative effects of psychological and physical abuse when assessing reasonableness of battered person’s fear of imminent danger of death or serious bodily injury with respect to claim of self-defense]; Commonwealth v. Simmons (94) 647 A2d 568 [436 Pa.Super. 203] [failure to request instruction that identification testimony must be received with caution was IAC]; Commonwealth v. Mikell (PA 1999) 729 A2d 566 [556 Pa. 509] [failure to request alibi instruction]; People v. Olano UNPUBLISHED (A076812) [failure to request cautionary instruction regarding prior conviction offered to impeach defendant held as IAC]. [The opinion and briefing in Olano is available to FORECITE subscribers. Ask for Brief Bank # B-774 and Opinion Bank # O-243.].) In People v. Webb DEPUBLISHED (94) 27 CA4th 242, 256 [32 CR2d 582], the court reversed a murder conviction based on ineffective assistance of counsel for failure to request that CJ 4.21 specifically require the jury to consider intoxication in determining whether the defendant formed the mental state of premeditation and deliberation. (See also FORECITE F 4.21 n9; but see People v. Castillo (97) 16 C4th 1009 [68 CR2d 648] [no IAC for failure to relate CJ 4.21 to mental state].) The long-standing standard for consideration of IAC (ineffective counsel) claims is Strickland v. Washington (84) 466 US 668 [80 LEd2d 674; 104 SCt 2052]. The Strickland test requires that the defendant satisfy two prongs — that counsel’s conduct fall below the normal standards of attorney competence and that but for counsel’s errors or omissions, the defendant would have obtained a more favorable verdict. It was suggested in In re Avena (96) 12 C4th 694, 722, fn 3 [49 CR2d 413] that Lockhart v. Fretwell (93) 506 US 364 [122 LEd2d 180; 113 SCt 838] may have altered or superseded the prejudice prong of the Strickland test. On closer analysis, however, Fretwell does not affect the validity of Strickland. (See Fretwell, 506 US at 373-75 [conc. opn. of O’Connor, J.] [Fretwell will have no effect on the Strickland prejudice inquiry “in the vast majority of cases”].) The “reasonable probability” standard of Strickland was based on the express presumption that the judge acted according to law. (466 US at 694.) In a Fretwell scenario, however, it turns out the judge did not act according to law, even if (s)he didn’t know that at the time. If unlike Fretwell, there is nothing to disrupt the presumption that the judge acted according to law, then Strickland makes clear that the “reasonable probability” standard is the proper test for whether an error of counsel rendered a trial fundamentally unfair. (See also Williams v. Taylor (2000) 529 US 362 [146 LEd2d 389; 120 SCt 1495, 1511-15] [Lockhart v. Fretwell did not modify or supplant Strickland].)
PG VI(C)(4.1) Failure To Research And Present Non-Pattern Jury Instruction As IAC. In People v. Murtishaw (89) 48 C3d 1001, 1014 [258 CR 821] trial counsel waived the instructional error by failing to request an instruction on imperfect self-defense which, at that time, was not sufficiently recognized to be a standard pattern instruction. (See People v. Flannel (79) 25 C3d 668, 681 [160 CR 84].) On federal habeas in Murtishaw the district court held that trial counsel was not ineffective for failing to discover People v. Wells (49) 33 C2d 330 [202 P2d 53], which supported the imperfect self-defense theory but was “not annotated in West’s or McKinney’s Digests and did not attain headnote status in either the California Reports or the Pacific Reporter.” Accordingly, the district court held that it was not ineffective assistance of counsel to be unaware of Wells because at the time of trial headnote shepardizing and digest research were the primary research methods and these “did not yield the results claimed by Murtishaw.” [A copy of the memorandum of decision and order denying writ of habeas corpus in Murtishaw by Judge Wagner issued on 3/23/98 is available to FORECITE subscribers. Ask for Opinion Bank # O-237].) In light of this rationale, modern research techniques and capabilities, as well as specialized publications such as FORECITE, put trial counsel on notice as to potential non-pattern instructions and the failure to request those instructions may result in an ineffective assistance of counsel claim. (See, e.g., People v. Marshall UNPUBLISHED (12/16/92, F016198) [5th District Court of Appeal held counsel ineffective for not requesting an antecedent threat instruction]. [FORECITE subscribers may obtain a copy of the Marshall Opinion. Ask for Opinion Bank # 0-131.]
PG VI(C)(4.2) Failure To Raise Issue On Appeal As Ineffective Assistance Of Counsel (IAC). (See FORECITE PG X(K).)
PG VI(C)(4.3) Failure To Object To Instruction As Ineffective Assistance Of Counsel. (See Lucas v. O’Dea (6th Cir. 1999) 179 F3d 412 [IAC for failure to object to constructive amendment of indictment where defendant was charged with intentional murder and jury was instructed on implied malice, wanton murder]; see also People v. Burnett (99) 71 CA4th 151 [83 CR2d 629] [counsel ineffective for failure to object when case submitted to the jury on two acts, one of which was not presented at the preliminary hearing].)
PG VI(C)(4.4) Duty To Request Instructions: Ineffective Assistance Of Counsel To Make Strategic Decision Without Fully Investigating Alternatives. Both the Sixth Amendment to the United States Constitution and Article I, Section 15 of the California Constitution guarantee a criminal defendant effective assistance of counsel. (Strickland v. Washington (84) 466 US 668, 687 [80 LEd2d 674; 104 SCt 2052]; People v. Ledesma (87) 43 C3d 171, 215 [233 CR 404].) “Specifically, a defendant is entitled to the reasonably competent assistance of an attorney acting as his diligent and conscientious advocate. [Citation.] This means that before counsel undertakes to act, or not to act, counsel must make a rational and informed decision on strategy and tactics founded upon adequate investigation and preparation.” (In re Marquez (92) 1 C4th 584, 602 [3 CR2d 727; see also In re Cordero (88) 46 C3d 161, 249 [249 CR 342]; People v. Ledesma, 43 C3d at 215.) An attorney’s decision not to investigate cannot be deemed reasonable if it is uninformed. (Fisher v. Gibson (10th Cir. 2002) 282 F3d 1283, 1291 [counsel has a duty to investigate all reasonable lines of defense; this duty is “strictly observed in capital cases”].) The mere incantation of “strategy” does not insulate attorney behavior from review. Trial counsel cannot be said to have made an informed strategic decision without having conducted “some investigation … into various defense strategies” so that he or she can inform the client as to the wisdom or folly of pursuing one defense and the risks and benefits of alternative defense theories. (See Phillips v. Woodford (9th Cir. 2001) 267 F3d 966, 976-980 [choice of defense must be based on reasonable investigation or strategic decision]; Siripongs v. Calderon (9th Cir. 1994) 35 F3d 1308, 1314 [quoting Kimmelman v. Morrison (86) 477 US 365, 384 [91 LEd2d 305; 106 SCt 2574]; see also In re Vargas (2000) 83 CA4th 1125, 1133 [100 CR2d 265] [counsel has a duty to investigate all defenses and explore the factual bases for defenses and the applicable law before advising defendant regarding plea bargain].) For example, a possible conflict between defenses does not excuse counsel’s failure to “investigate the potential strengths of a ‘mental defense’ vis-a-vis [a lack of participation] defense.” [Original emphasis.] (People v. Mozingo (83) 34 C3d 926, 934 [196 CR 212]; see also Foster v. Lockhart (8th Cir. 1983) 9 F3d 722, 726 [inconsistency between defense of impotence and alibi did not excuse failure to investigate]; Ledesma, 43 C3d at 222.) As the court in Foster v. Lockhart (8th Cir. 1983) 9 F3d 722 observed: “Reasonable performance of counsel includes an adequate investigation of facts, consideration of viable theories, and development of evidence to support those theories. An attorney must make a reasonable investigation in preparing a case or make a reasonable decision not to conduct a particular investigation. [Citation.] Before an attorney can make a reasonable strategic choice against pursuing a certain line of investigation, the attorney must obtain the facts needed to make the decision. [Citation.] An attorney’s ‘strategic choices’ made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.'” [Citations.] Although we generally give great deference to an attorney’s informed strategic choices, we closely scrutinize an attorney’s preparatory activities. [Citations.]” (9 F3d at 726; see also Rios v. Rocha (9th Cir. 2002) 299 F3d 796 [failure of counsel to interview more than one witness before abandoning mistaken identity defense constituted unreasonable investigation]; Milburn v. State (TX 2000) 15 SW3d 267, 270 [counsel ineffective at penalty trial for failure to investigate and present testimony of family and friends of defendant; any strategic decision to not present such evidence should not have been made until evidence was first fully investigated].)
PG VI(C)(5) Defendant Must Request Fuller Instructions During Jury Selection: When, during jury selection, the court gives prospective jurors instructions regarding the nature of the proceedings if counsel desires a fuller explanation additional instruction should be requested. (People v. Livaditis (92) 2 C4th 759, 780-81 [9 CR2d 72].)
PG VI(C)(6) Sequence of Instructions to Promote Clarity: When useful counsel should request a sequence of instructions different from the CALJIC numerical sequence. (People v. Carrasco (81) 118 CA3d 936, 941-44 [173 CR 688]; see also, FORECITE PG V(F).)
PG VI(C)(7) Duty To Make Record Of Instruction Discussions: (See FORECITE PG V(I); see also Margolin, Preservation of the Record on Appeal, Vol. 21, No. 1, CACJ Forum, pp. 68-69, regarding the necessity of having a reporter present during any in-chambers discussion of jury instructions. [A copy of this article is available to FORECITE subscribers. Ask for Article Bank # A-34.] Regarding record of any response to jury inquiry during deliberations, see FORECITE PG IX(B).) When trial counsel submits requested instructions which are refused, the trial court is obligated to include those instructions in the clerk’s record on appeal (Cal. Rules of Court Rule 31(b)(4)). However, trial counsel should double check to assure that all refused instructions are included in the record because, once the matter is on appeal, appellate counsel may not be aware of the refused instructions and/or it may be necessary to file a motion to have the record augmented and/or settled. [A sample appellate motion to add a missing instruction to the record per Cal. Rules of Court, Rule 8.155(a) (formerly Rule 12(a)) is available to FORECITE subscribers. Ask for Motion Bank # M-3000.]
PG VI(C)(8) Duties of Counsel in Civil Forfeiture Proceedings: A criminal case may produce a related civil action such as a forfeiture proceeding pursuant to HS 11470. The duty to instruct in such a proceeding is much different than in a criminal proceeding. The trial court is given discretion to instruct the jury on its own motion under CCP 608, which provides: “In charging the jury the court may state to them all matters of law which it thinks necessary for their information in giving their verdict ….” Hence, “each of the parties must propose complete and comprehensive instructions in accordance with his theory of litigation; if the parties do not do so, the court owes no duty to instruct on its own motion.” (Switzer v. State (69) 269 CA2d 627, 635 [75 CR 371]; see also, People v. Washington (90) 220 CA3d 912, 917 [269 CR 668].) Only the complete failure to instruct properly on a basic issue may constitute reversible error in such a proceeding. (Washington 220 CA3d at 917.)
PG VI(C)(9) Request For Preinstruction Of Jury: As discussed in FORECITE PG V(E), preinstruction of the jury is within the judge’s discretion as a means of alerting the jurors to legal issues prior to their receipt of the evidence. [A sample trial brief and request for preinstruction of the jury is available to FORECITE subscribers. Ask for Instruction Bank # I-860.]
PG VI(C)(10) Discussing Or Reciting Legal Principles During Argument As Alternative To Refused Instruction:
If the court refuses a requested instruction, it may be appropriate to read the applicable case law to the jury during argument. (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]; People v. Linden (59) 52 C2d 1, 29 [338 P2d 397] [trial court in its discretion may permit counsel to state correct law and illustrate its application to the facts]; People v. Anderson (1872) 44 C 65, 70-71; In re Wagner (81) 119 CA3d 90, 113-14 [173 CR 766] citing Witkin, Cal. Criminal Procedure (1963) Trial, §467 at 474-75; People v. Travis (54) 129 CA2d 29, 36-39 [276 P2d 193]; 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; cf., People v. Harrison (2005) 35 C4th 208, 248 [attorneys may use “illustrations drawn from common experience, history, or literature”].)
For example, where the requested instruction is refused because it has been held to be included in another general instruction [e.g., lingering doubt is encompassed within general mitigation instruction (see People v. Musselwhite (98) 17 C4th 1216 [74 CR2d 212]), counsel should be permitted to so inform the jury during argument.] [E.g., “The California Supreme Court has ruled that lingering doubt as to guilt is a mitigating factor which you may consider in deciding which penalty to impose. You have not been specifically instructed upon lingering doubt as a mitigating factor because the court has ruled that it is included in the general mitigation instruction. Therefore, the law requires you to read the general mitigation instruction to include lingering doubt as a potential mitigating factor which you should consider.”]
Similarly, when a definition, clarification or amplification of an instruction is refused because it is covered by other instructions or the jurors’ assumed general knowledge, counsel should be permitted to argue that the particular matter is a correct statement of the law but was not included in the instructions because the judge assumed the jury would know the definition or that it was covered by other instructions.
When such an approach is taken, counsel may also wish to tell the jury that (1) the DA would have a right to object if the legal rules recited in argument were improper and (2) CJ 1.00 authorizes the jury to consider counsel’s statements concerning the law which do not conflict with the trial court’s instructions. (See also FORECITE F 200.5 Inst 2.)
(For an example of how this technique can work, see FORECITE At Work At Trial: Michael E. Grodsky, March/April 2001 Newsletter.)
ALERT: For additional strategies and instructions see FORECITE F 200.5 Inst 2.
PG VI(C)(11) Duty To Request Reopening Of Argument When New Instructional Theory Presented After Argument: When the jury instructions are changed after the arguments of counsel, several potential constitutional rights of the defendant may be implicated. For example, if the new instruction presents a crime of which the defendant lacked notice, due process may be implicated (14th Amendment). (See Sheppard v. Rees (9th Cir. 1989) 909 F2d 1234, 1236.) Additionally, the rights to effective assistance of counsel and to argument to the jury (see Herring v. New York (75) 422 US 853, 858 [45 LEd2d 593; 95 SCt 2550]) may be violated if the changed instruction unfairly prevented defense counsel from arguing the defense to the jury or substantially misled counsel in formulating and presenting arguments. (See U.S. v. Gaskins (9th Cir. 1988) 849 F2d 454, 458; see also, Lankford v. Idaho (91) 500 US 110 [114 LEd2d 173; 111 SCt 1723]; People v. Sanchez (78) 83 CA3d Supp 1, 7 [147 CR 850] [reversal required because defense counsel’s credibility was destroyed when the trial court changed an intended instruction in open court in front of the jury and in the middle of defense counsel’s closing argument].) Additionally, belated changes to the instructions also violate PC 1093.5. (See FORECITE PG V(H).) However, to avoid waiving such an error, it has been held that counsel must make a request to reopen closing argument and/or for a continuance. (See People v. Bishop (96) 44 CA4th 220, 235 [51 CR2d 629]; see also, People v. Memro(95) 11 C4th 786, 869 [47 CR2d 219 [failure to ask to reopen waived error in instructing on uncharged felony murder theory].)
PG VI(C)(12) Reference To Outside Sources During Argument. Reference may be made to matters not in evidence that are “judicially noticed … common knowledge, or are illustrations drawn from common experience, history or literature.” (People v. Woodson (64) 231 CA2d 10, 16 [41 CR 487]; see also People v. Mendoza (74) 37 CA3d 717, 725 [112 CR 565] [counsel permitted to refer to — but not read from — articles about false child molestation charges]; but see People v. Love (61) 56 C2d 720, 729-30 [16 CR 777] [prosecutor not allowed to say it’s “a known fact”].) It has been held that counsel has a right to read from court opinions, books, or newspaper and magazine articles if “the reading material states proper argument in language counsel feels is better than his own.” (See People v. Gusman (75) 47 CA3d 380, 392 [121 CR 69]; People v. Travis (54) 129 CA2d 29, 37 [276 P2d 193]; People v. Pangelina (84) 153 CA3d 1, 9 [199 CR 916] but see People v. Williamson (77) 71 CA3d 206, 216 [139 CR 222] [counsel not allowed to read “Scientific American” article on eyewitness identification]; see also FORECITE PG VI(C)(10) [reading case law during argument as alternative to refused instruction].) Other courts have suggested that although the trial judge should take “a liberal posture toward counsel’s right to argue her case as eloquently and persuasively as possible,” the court retains discretion to prohibit counsel from reading to the jury. (People v. Palmer(84) 154 CA3d 79, 89 fn 9 [203 CR 474]; see also People v. Wes (83) 139 CA3d 606, 610 [189 CR 36]; People v. London (88) 206 CA3d 896, 908 [254 CR 59]; People v. Farmer (89) 47 C3d 888, 921 [254 CR 508] [court refused to find error because counsel did not show the article to the court before arguing from it].)