It is a fundamental tenet of the federal constitutional rights to fair trial by jury and due process (5th, 6th and 14th Amendments) that the jury consider exculpatory evidence upon which the defendant relies to leave the jury with a reasonable doubt as to any element of the charge. (See e.g., Martin v. Ohio (87) 480 US 228 [94 LEd2d 267; 107 SCt 1098] [instruction that jury could not consider self-defense evidence in determining whether there was a reasonable doubt about the State’s case would violate In re Winship (70) 397 US 358 [25 LEd2d 368; 90 SCt 1068]; Rock v. Arkansas (87) 483 US 44 [97 LEd2d 37; 107 SCt 2704] [domestic rule of evidence may not be used to exclude crucial defense evidence]; Chambers v. Mississippi (73) 410 US 284 [35 LEd2d 297; 93 SCt 1038]; People v. Bobo (90) 229 CA3d 1417, 1442 [3 CR2d 747] [legislature cannot deny defendant an opportunity to prove he or she did not possess a statutorily required mental state]
Consistent with these principles cases have recognized that defense evidence “must” be considered by the jury. “The jury may not believe the defense evidence … but it must take it into consideration in its deliberations if the defendant is to have a fair trial on all the issues raised. [Emphasis in original.] (People v. Stevenson (1978) 79 Cal.App.3d 976, 987; see also e.g., Giles v. State (AR 1977) 549 SW2d 479, 484-85 [misconduct for jurors to arbitrarily and completely disregard mitigating evidence of defendant’s severe cognitive impairment due to organic brain syndrome]; Duckworth v. State (AR 1907) 103 SW 601, 602 [relevant and competent testimony in a criminal case should not be arbitrarily disregarded by the jury]; People v. Sumner (IL 1982) 437 NE2d 786, 788 [jury must consider all of the evidence; trier of fact cannot simply ignore exculpatory evidence].)
Also consistent with these principles many CALCRIM instructions admonish the jurors to “consider” relevant factors and circumstances. (See, e.g., CC 103 [“… consider all the evidence that was received throughout the entire trial”]; CC 105 [“Consider the testimony of each witness …”]; CC 240 [“In deciding whether a consequence is natural or probably, consider all the circumstances …”]; CC 315 [“In evaluating identification testimony, consider the following questions: . . .”]; CC 330 [“When you evaluate the child’s cognitive development, consider the child’s ability to perceive, understand, remember, and communicate”]; CC 375 [“In evaluating this evidence, consider the similarity or lack of similarity between the uncharged (offense[s]/ [and] act[s]) and the charged offense[s]”]; CC 571 [“In evaluating the defendant’s beliefs, consider all the circumstances as they were known and appeared to the defendant”]; CALCRIM 590 [“In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence”].)
Furthermore, CC 332 instructs jurors as follows regarding expert witness testimony:
You must consider the opinion[s], but you are not required to accept (it/them) as true or correct.
Similarly, CC 763 requires consideration of death penalty evidence:
In reaching your decision, you must consider and weigh the aggravating and mitigating circumstances or factors shown by the evidence.
(See also CC 766; CC 1215[“…you must consider all the circumstances relating to the movement.]; see also CC 3175.)
However, CALCRIM also contains instructions which erroneously permit the jurors to reject defense evidence without considering it by stating that the jurors “may consider” the evidence. (See e.g., CC 105 and CC 226, para 2; CC 316, Alternatives A and B; CC 2100, para 7, CC 2101 para 4, 2102, para 5, 2110, para 8, 2111, para 4, 2113, para 3, 2114, para 5, CC 2965, para *; CC 2200, para 4; CC 2430, para 3-6, 2431, para 3-6, 2432, 4-7; CC 2514, para 6-9; CC 2745, para 13, CC 2746, para 11, CC 2747; CC 3450, para 7; CC 3470, para 6-9.)
As to any such instructions the phrases: “You may consider …” or “… you may consider …” should be changed to “Consider …” or “… consider …”
