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Forecite Practice Guide – Contents

PRACTICE GUIDE

  • PG I(A) – Making Jury Instructions Part of the Adversarial Process
  • PG I(B) – Duty of Court to Go Beyond the Standard Pattern Instructions
    • PG I(B)(1) Jury Instructions Are Not The Law – They Attempt To State The Law
    • PG I(B)(2) Pattern Instructions Are Not Sacrosanct
    • PG I(B)(3) Federal Constitutional Principles Require The Judge To Look Beyond The Standard Pattern Instructions
    • PG I(B)(4) CAVEAT: The Superior Court Of Los Angeles No Longer Maintains CALJIC
    • PG I(B)(5) CALCRIM Is No More Sacrosanct Than Was CALJIC
  • PG I(C) – Jury Instruction Statutes and Rules of Court
  • PG I(D) – Importance of Considering Instructions Before Trial
  • PG I(E) – Importance of Preparing for Evidentiary Questions Governed By EC 403
  • PG I(F) – Strategy for Analysis and Preparation of Jury Instructions at Trial
  • PG I(G) – A Suggested Approach to Finding Instructional Error on Appeal
  • PG I(H) – Precedential Hierarchy: Stare Decisis, Law Of The Case, Etc. [“What Trumps What?”]
    • CALIFORNIA
    • PG I(H)(1) Stare Decisis
    • PG I(H)(1.1) Generally
    • PG I(H)(1.2) California Supreme Court Trumps All Other State Courts
    • PG I(H)(1.3) District Courts Of Appeal Trump Superior Courts
    • PG I(H)(1.4) Superior Court Appellate Divisions Opinions Do Not Bind Other Superior Courts
    • PG I(H)(2) Dictum
    • PG I(H)(3) Law Of The Case Doctrine
    • PG I(H)(4) Unpublished Opinions
    • PG I(H)(5) Impact of Denial of Review by CSC
    • PG I(H)(6) Situations Where Higher Authority Is Not Controlling
    • PG I(H)(7) Non-California Authority
    • PG I(H)(7)(a) The Federal Constitution
    • PG I(H)(7)(b) United States Supreme Court
    • PG I(H)(7)(c) Other States
    • PG I(H)(7)(d) Federal Authority
    • PG I(H)(7)(e) Scholarly Criticism
    • PG I(H)(8) Rules of Court
    • PG I(H)(8)(a) Judicial Council Rules
    • PG I(H)(8)(b) Local Rules
    • PG I(H)(9) Jury Instructions Drafted By Committees Or Administrative Agency Are Not Binding Authority
  • FEDERAL SYSTEM

  • PG I(I) – Citation To Case Law
    • PG I(I)(1) Published California Cases
    • PG I(I)(2) Unpublished Opinions
    • PG I(I)(3) Binding Effect Of Non-Final Published Opinions
    • PG I(I)(4) Citation Of Opinions From Appellate Division Of Superior Courts
    • PG I(I)(5) Citation Protocol For New Cases
  • PG I(J) – Instructions to Grand Jury
    • PG I(J)1 The Law Of Grand Juries And Indictments
    • PG I(J)2 Grand Jury Instructions: Right To Discovery
    • PH I(J)3 Grand Jury: Transcript Of Prosecutor’s Remarks To Grand Jurors
  • JURY INSTRUCTION LANGUAGE

  • PG II(A) – The Statute
  • PG II(B) – Terms With a Specialized or Technical Legal Meaning
  • PG II(C) – Language From Appellate Court Opinions
  • PG II(D) – Instructions Specifically Approved By Reviewing Court
  • PG II(E) – Reference to Specific Facts/Witnesses
    • PG II(E)(1) Improper To Single Out Particular Witness
    • PG II(E)(2) Deleting Reference To Specific Crime To “Sanitize” A Prior Conviction
    • PG II(E)(3) Blanket Admonition May Be Undercut By List Of Specific Items
  • PG II(F) – Identifying the Party Who Has the Burden of Proof
  • PG II(G) – Court Must Exercise Care in Defining Elements
  • PG II(H) – Strategy for Dealing with Jury Instruction Language
  • PG II(I) – Making Jury Instructions Understandable
  • PG II(J) – Determining an Instruction’s “Readability” Score
  • PG II(K) – Empirical Evidence of Juror Inability to Understand Instructions
  • PINPOINT INSTRUCTIONS

  • PG III(A) – Defendant’s Right to Directly Relate the Theory of Defense to an Element of the Charge
  • PG III(B) – Improper Argumentative vs. Proper Pinpoint Instructions
  • PG III(C) – Prosecution’s Pinpoint Instructions
  • 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(E) – Any Single Fact May Be Sufficient to Leave the Jury With a Reasonable Doubt
  • PG III(F) – The FORECITE System for Composing Pinpoint Instructions
  • PG III(G) – The FORECITE System for Drafting Pinpoint Instructions
  • SPECIFIC V. GENERAL INTENT

  • PG IV – General Rules
  • pg-iva – Does Implied Malice Require Specific Intent?
  • PG IV(B) – What Intent is Required for Assault?
  • PG IV(C) – What is the Intent Requirement for Arson?
  • PG IV(D) – Does Use of a Firearm Require Specific Intent?
  • PG IV(E) – Does Aiding and Abetting Include a Specific Intent Mens Rea?
  • DUTIES OF THE COURT

  • PG V(A) – Sua Sponte Duties
    • PG V(A)(1) Province of the Court
    • PG V(A)(2) Duty to Instruct on General Principles, Elements and Theories
    • PG V(A)(2.1) Duty Of Judge To Instruct Not Dependent On Manifestation Of Confusion By Jury
    • PG V(A)(2.2) Judge’s Duty To Not Instruct On Inapplicable Theories
    • PG V(A)(3) Duty to Go Beyond Form Instructions
    • PG V(A)(3)(a) Duty To Tailor Standard Form Instructions To Reflect The Facts And Legal Theories Presented At Trial
    • PG V(A)(4) Duty to Protect Defendant’s Rights
    • PG V(A)(5.1) Duty to Screen Out Factually Unsupported Theories
    • PG V(A)(5.2) Sua Sponte Duty To Give Preclusion Instruction Regarding Erroneous Legal Theory
    • PG V(A)(6) Duty To Instruct On Defenses
    • PG V(A)(6)(1) Court Must Instruct Sua Sponte On Defense Supported By Substantial Evidence And Consistent With Defendant’s Theory
    • PG V(A)(6)(2) Duty To Instruct On Inconsistent Defenses
    • PG V(A)(6)(3) Basic Principles: Defenses And Defense Theories
    • PG V(A)(7) Judge’s Duty To Instruct On Lesser Included Offense
    • PG V(A)(7.1) Sua Sponte Duty
    • PG V(A)(7.2) Instruction on Lesser Included Over Defense Objection
    • PG V(A)(7.3) Instructing On Lesser Included Offenses Under CALCRIM
    • PG V(A)(8) Terms With Specialized/Technical Meaning: Sua Sponte Duty to Define
    • PG V(A)(9) Sua Sponte Duty Governed By Substantial Evidence Without Regard To Source Or Credibility Of The Evidence
    • PG V(A)(9.1) Defendant Need Not Testify To Require Instruction On Defense Theory
    • PG V(A)(9.2) Right To Instruction Must Not Be Based On A Binary Choice Between The Prosecution And Defense Evidence: Instruction On “Third Scenario” May Be Appropriate
    • PG V(A)(10) Statutorily Mandated Sua Sponte Instructions
    • PG V(A)(11) Duty to Instruct on Expert Testimony
    • PG V(A)(12) Limitations on Sua Sponte Duty
    • PG V(A)(13) Sua Sponte Duty to Instruct Upon Lesser Included Offenses Based On Intoxication
    • PG V(A)(14) Impact Of Stipulation On Duty To Instruct
    • PG V(A)(15) Sua Sponte Duties In Civil Commitment Proceedings
  • PG V(B) – Requested Instructions
    • PG V(B)(1) General Rules
    • PG V(B)(1.1) Right To “Theory Of The Case” Instruction Upon Request
    • PG V(B)(1.2) Instruction Embodying General Rule Does Not Justify Refusing More Specific Instruction Applying The Rule To The Facts Of The Case
    • PG V(B)(1.3) Requested Instructions: Doubts Resolved In Favor Of Defendant
    • PG V(B)(1.4) Duty To Instruct On Defense Theory: The Law Of The Case Doctrine
    • PG V(B)(1.5) Right To Instruction Must Not Be Based On A Binary Choice Between The Prosecution And Defense Evidence: Instruction On “Third Scenario” May Be Appropriate
    • PG V(B)(1.6) Requested Instructions: Right To Request Instruction Defining Common Terms; Non-Technical Terms
    • PG V(B)(1.7) Jurors Not Permitted To Consult Dictionary
    • PG V(B)(1.8) No Duty To Give Duplicative Instructions
    • PG V(B)(2) No Preference for CALJIC Instructions
    • PG V(B)(3) Endorsement and Written Reasons for Refusal
    • PG V(B)(4) Mandatory Statutory Instructions
    • PG V(B)(5) Requested Instruction On Time- Or Jeopardy-Barred Lesser
  • PG V(C) – Correction of Defects
  • PG V(D) – Sanitizing the Instructions
    • PG V(D)(1) General
    • PG V(D)(2) Descriptive Titles
  • PG V(E) – When to Instruct
    • PG V(E)(1) Timing Of Instructions Generally
    • PG V(E)(2) Preinstruction Required (PC 1122(a))
    • PG V(E)(3) New Or Different Instructions During Deliberations
    • PG V(E)(4) Pre-Voir Dire Instruction Of The Jury
    • PG V(E)(5) Instruction Before Or After Arguments
    • PG V(E)(6) When To Instruct: Failure To Repeat Pre-Instructions At End Of Trial
  • PG V(F) – Sequence of Instructions
  • PG V(G) – Written Instructions to the Jury
    • PG V(G)(1) Generally
    • PG V(G)(2) Discrepancies Between Oral and Written Instructions
    • PG V(G)(3) Preservation Of Written Instructions For The Record
    • PG V(G)(3.1) Record Must Contain Exact Copy Of Written Instructions Given To Jury
    • PG V(G)(3.2) Record Must Include Proposed Instruction Titles And Numbers
    • PG V(G)(4) Written Instructions In Lieu Of Oral Instructions As Reversible Error
    • PG V(G)(5) Written Instructions As Inherently Prejudicial Even If Oral Instructions Are Also Given
    • PG V(G)(6) Supplemental Instructions Should Be Given Orally
  • PG V(H) – The Court Must Advise Counsel as to Instruction Before Argument
  • PG V(I) – Record of Instruction Proceedings
    • PG V(I)(A) General Rules
    • PG V(I)(B) Variance Between Reporter’s Transcript And Written Instructions
    • PG V(I)(B)(1) Case By Case Analysis
    • PG V(I)(B)(2) Insignificant Discrepancies: Presumption That Jurors Followed Written Instructions
    • PG V(I)(B)(3) Reporter’s Version Not Sacrosanct As To Punctuation And Format.
    • PG V(I)(B)(4) Substantial Discrepancies: Oral Instructions Should Control
    • PG V(I)(B)(5) Failure To Orally Instruct On An Individual Written Instruction
    • PG V(I)(B)(6) Correct Oral Instruction Does Not Cure Erroneous Or Incomplete Written Instruction
    • PG V(I)(B)(7) Jurors May Follow Oral Instructions
    • PG V(I)(C) Reporter’s Failure To Contemporaneously Record Jury Instructions
    • PG V(I)(D)(1) Waiver Of Reporter
    • PG V(I)(D)(2) Stipulation That Oral Instructions Not Be Reported
    • PG V(I)(E) Reporting By Electronic Recorder Rather Than Court Reporter
    • PG V(I)(F) Record Of Instruction Proceedings: Error In Reporter’s Transcript And No Written Instructions Available
    • PG V(I)(G) Making Appellate Record As To Matters Which Cannot Be Recorded By Court Reporter
  • PG V(J) – Instruction of the Jury — Public Trial
  • PG V(K) – Instruction on Inconsistent Defenses
  • PG V(L) – Polling of Jury Following Verdict
  • PG V(M) – Instruction to Disregard Theories Advanced During Argument For Which No Substantial Evidence Was Presented
  • PG V(N) – Presence of Defendant
  • PG V(O) – Separation of Powers Precludes Legislative Infringement on Judicial Discretion
  • DUTIES OF COUNSEL

  • PG VI(A) – Cognizability Of Instructional Error On Appeal
    • PG VI(A) Cognizability On Appeal Of Instructional Error: Failure To Object
    • PG VI(A)(1.1) Cognizability: PC 1259
    • PG VI(A)(1.2) Duty to Obtain Ruling From The Court
    • PG VI(A)(1.3) Duty Of Counsel To Object: Futile Objections Need Not Be Raised
    • PG VI(A)(1.4) Duty To Object: Prosecutorial Misstatements Of Law
    • PG VI(A)(1.4.1) Intemperate Behavior Of Prosecutor: Request For Curative Admonition Required
    • PG VI(A)(1.5) Duty To Object: Misconduct Of Co-Counsel
    • PG VI(A)(1.6) Duty To Object: Plain Error
    • PG VI(A)(1.7) Duty To Object To Time-Barred Lesser Offenses
    • PG VI(A)(1.8) Cognizability Of Error Without Objection: Prosecution Equally At Fault
    • PG VI(A)(1.9) Cognizability Of Error Without Objection: Trial Rendered Unfair
    • PG VI(A)(1.10) Cognizability Of Error Without Objection: Denial Of Fundamental Right Such As Trial By Jury
    • PG VI(A)(1.11) Cognizability Of Error Without Objection: Alternative Ineffective Counsel Claim Does Not Presume The Issue Was Waived
    • PG VI(A)(1.12) Cognizability Of Error Without Objection: Closely Balanced Case And Grave Doubt As To Guilt
    • PG VI(A)(1.13) Reviewing Court’s Power To Sua Sponte Consider Issues Not Raised Or Preserved By The Parties: Courts Of Appeal
    • PG VI(A)(1.14) Cognizability Of Instructional Error On Appeal: Pre-Trial Objection Must Be Renewed In Context Of Trial Evidence
    • PG VI(A)(1.15) Cognizability Of Error Without Objection: Pure Question Of Law
    • PG VI(A)(1.15.1) Absence Of Any Objection At Trial
    • PG VI(A)(1.15.2) Trial Objection On Non-Constitutional Ground: Trial Counsel Need Not State The “Legal Consequence” Of An Adverse Ruling To A Trial Objection
    • PG VI(A)(1.15.3) Trend Toward Forfeiture Of Instructional Issues
    • PG VI(A)(1.16) Cognizability On Appeal Of Instructional Error: Failure To Object – No Duty To Object Based On Unknown Facts
    • PG VI(A)(1.17) Cognizability Of Claim Not Raised Below: Alternate Legal Grounds
    • PG VI(A)(1.18) Presumption Against Waiver of Fundamental Constitutional Rights
    • PG VI(A)(1.19) Waiver Rule Must Be Interpreted Reasonably
    • PG VI(A)(1.20) Cognizability Of Error Without Objection: Failure To Define Technical Term
    • PG VI(A)(1.21) Role of CALCRIM Bench Notes
    • PG VI(A)(2) Invited Error: General Principles
    • PG VI(A)(3) Invited Error: Joining D.A.’s Request For Instruction
    • PG VI(A)(4) “Defensive Act” Made In Light Of Court Ruling Does Not Waive Issue
    • PG VI(A)(5) Invited Error: Inapplicable Where Requested Instruction Has Been Changed
    • PG VI(A)(6) Invited Error: Error Must Be Caused By Counsel
    • PG VI(A)(7) Invited Error As To Lesser Included Offenses
    • PG VI(A)(8) Duty To Object To Time-Barred Lesser Offenses
    • PG VI(A)(9) Invited Error/Estoppel: Applicability To Prosecution
    • PG VI(A)(9.1) New Theory On Appeal.
    • PG VI(A)(9.2) Prosecution Reliance On Incompatible Theories – Judicial Estoppel
    • PG VI(A)(10) Duty To Object: Duty To Submit To Court’s Ruling; No Obligation To Pursue The Issue Or Renew The Objection
    • PG VI(A)(11) Invited Error: Reviewing Court Not Permitted To Look To Closing Argument For Possible Tactical Reason For Counsel’s Omission
    • PG VI(A)(12) Mere Failure To Request An Instruction Is Not Invited Error
    • PG VI(A)(13) Role Of CALCRIM Bench Notes
  • PG VI(B) – Necessity of Objection to Lesser Related Offenses
  • PG VI(C) – Duty to Request Instructions
    • PG VI(C)(1) General Rules
    • 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
    • PG VI(C)(2) Form of Request
    • PG VI(C)(2.1) Duty To Request Instructions: Whether Instruction Request Must Be In Writing
    • PG VI(C)(3) When To Request
    • PG VI(C)(4) Failure to Request Necessary Jury Instructions as IAC
    • PG VI(C)(4.1) Failure To Research And Present Non-Pattern Jury Instruction As IAC
    • PG VI(C)(4.2) Failure To Raise Issue On Appeal As Ineffective Assistance Of Counsel (IAC)
    • PG VI(C)(4.3) Failure To Object To Instruction As Ineffective Assistance Of Counsel
    • PG VI(C)(4.4) Duty To Request Instructions: Ineffective Assistance Of Counsel To Make Strategic Decision Without Fully Investigating Alternatives
    • PG VI(C)(5) Defendant Must Request Fuller Instructions During Jury Selection
    • PG VI(C)(6) Sequence of Instructions to Promote Clarity
    • PG VI(C)(7) Duty To Make Record Of Instruction Discussions
    • PG VI(C)(8) Duties of Counsel in Civil Forfeiture Proceedings
    • PG VI(C)(9) Request For Preinstruction Of Jury
    • PG VI(C)(10) Discussing Or Reciting Legal Principles During Argument As Alternative To Refused Instruction
    • PG VI(C)(11) Duty To Request Reopening Of Argument When New Instructional Theory Presented After Argument
    • PG VI(C)(12) Reference To Outside Sources During Argument
  • PG VI(D) – Presenting Claims On Appeal To The Reviewing Court
  • PG VI(E) – Issue Preservation: Practice Tips
    • PG VI(E)(1) Using A Mantra Motion To Preserve Without The Need Of Restating The Federal Constitutional Grounds Over And Over
    • PG VI(E)(2) Practice Tips For “Making A Winning Record”
  • Federal Constitutional Issues

  • PG VII(A) – Introduction
  • PG VII(B) – Federalizing the Request: Procedural Issues
    • PG VII(B)(1) Reasons For Federalizing Jury Instruction Requests
    • PG VII(B)(2) Federal Claim Must Be Specified
    • PG VII(B)(2.1) How To Properly State The Federal Claim In State Court
    • PG VII(B)(2.2) Federal Claim May Not Be Preserved By Citing State Cases Which Discussed Federal Claims
    • PG VII(B)(3) Necessity Of Federalizing In Trial Court
    • PG VII(B)(4) Necessity Of Federalizing In Appellate Court
    • PG VII(B)(4.1) Federal Habeas: Exhaustion – Claim Must Be Presented Throughout The State’s Direct Appeal Process
    • PG VII(B)(4.2) Necessity Of Federalizing In Appellate Court: Issues Raised For The First Time In Petition For Rehearing Or Reply Brief May Be Sufficient For Purposes Of Exhaustion
    • PG VII(B)(5) Necessity Of Presenting Federal Issue To State’s Highest Court Even If Review Is Discretionary
    • PG VII(B)(6) Federalizing The Request: Procedural Issues: Primer On Federal Habeas
    • PG VII(B)(7) Standard Of Prejudice: Denial Of Confrontation
  • PG VII(C) – Substantive Federal Constitutional Issues
    • PG VII(C)(1) Failure To Instruct Or Directed Verdict On Element Of Charge
    • PG VII(C)(2) Elimination Of Factual Considerations
    • PG VII(C)(3) Failure To Properly Define The Prosecution’s Burden
    • PG VII(C)(4) Instructions Which Impact the Burden of Proof As Federal Constitutional Error
    • PG VII(C)(5) Misinstruction On Element Of Charge:
    • PG VII(C)(6) Presumption Which Lessens The Prosecution’s Burden:
    • PG VII(C)(7) Permissive Inference Instructions Discouraged
    • PG VII(C)(7.1) Instruction On Consciousness Of Guilt Inference Improper Without Supporting Evidence
    • PG VII(C)(8) Improper Shifting Of The Burden Of Proof
    • PG VII(C)(9) Substantive Federal Constitutional Issues: Irrational Use Of Permissive Inference
    • PG VII(C)(9.1) Permissive Inference Instruction Improper As Duplicative Of Circumstantial Evidence Instruction
    • PG VII(C)(10) Contradictory Instructions On Element
    • PG VII(C)(11) Instruction On Uncharged Theory Violates Due Process And Right to Effective Assistance of Counsel: Preliminary Hearing Is Touchstone Of Due Process
    • PG VII(C)(11.1) Due Process Notice: Variance Between Information And Proof At Trial
    • PG VII(C)(11.2) Due Process Notice: No Reconsideration Of Pre-Verdict Acquittal
    • PG VII(C)(12) Failure To Instruct On Lesser Included In Capital Case
    • PG VII(C)(12.1) Federal Constitutional Right To Instruction On Lesser Included Offense In Capital Case: Defendant’s Duty To Request
    • PG VII(C)(13) Failure To Instruct On Lesser Included Offenses In Noncapital Case
    • PG VII(C)(14) Denial Of Instruction And Argument On Defense Theory As Violation Of Rights To Trial By Jury, Due Process, Counsel, Compulsory Process, And Confrontation
    • PG VII(C)(14.1) Precluding Defendant From Arguing Theory Of Case Is Structural Error
    • PG VII(C)(15) Right To Present A Defense: Guaranteed By Constitutional Rights To Compulsory Process, Confrontation, Due Process And Trial By Jury
    • PG VII(C)(16) Juror Unanimity
    • PG VII(C)(17) Due Process Violation For Arbitrary Denial Of State Created Right
    • PG VII(C)(18) Cumulative Effect Of State Errors As Violation Of Due Process
    • PG VII(C)(19) Impairing Jury’s Assessment Of Witness Credibility As Violation Of Right To Trial By Jury
    • PG VII(C)(20) Jury Consideration Of Highly Prejudicial Uncharged Act Evidence As Violation Of Due Process
    • PG VII(C)(21) Due Process Requires Balanced Instructions That Do Not Unduly Favor The Prosecution
    • PG VII(C)(22) Exercise Of One Constitutional Right Cannot Be Conditioned Upon The Denial Of Another
    • PG VII(C)(22.1) Retaliation For Exercising A Right: Due Process Violation
    • PG VII(C)(23) Disparate Treatment Of Identical Claims
    • PG VII(C)(24) Misapplication Of A State Law
    • PG VII(C)(25) Substantive Federal Constitutional Issues: Vagueness And Overbreadth. Vagueness
    • PG VII(C)(26) Substantive Federal Constitutional Issues: Trial By Jury.
    • PG VII(C)(27) Substantive Federal Constitutional Issues:
      • Retroactivity
      • Abatement
      • Ex Post Facto/Due Process
      • Ex Post Facto: General Rules
      • Ex Post Facto/Due Process
      • Ex Post Facto: Statute That Changes The Rules Of Evidence
      • Ex Post Facto/Due Process: Due Process Is More Limited
      • Ex Post Facto: Removal Of Discretion
      • Right On Direct Appeal To Benefit Of Intervening Decision
    • PG VII(C)(27.1) Changing The Rules In The Middle Of The Game
    • PG VII(C)(28) Domestic Rules Of Evidence May Not Be Invoked To Abridge A Criminal Defendant’s Right To A Fair Trial
      • Due Process Balancing
      • Balancing Required On A Case-By-Case Basis
      • Right To Proof Beyond A Reasonable Doubt And Trial By Jury
      • Applicability of Montana v. Egelhoff
    • PG VII(C)(29) Substantive Due Process
    • PG VII(C)(30) Misconduct Of Co-Counsel As An Abridgement Of Defendant’s Constitutional Rights
    • PG VII(C)(31) Due Process On Appeal: Federal Constitutional Issues: Generally
      • Delay of Appeal As Denial of Due Process
      • Inadequate Record As Denial of Due Process on Appeal
      • Ineffective Counsel on Appeal
    • PG VII(C)(32) Applicability Of Constitutional Rights To Sentencing Decisions
    • PG VII(C)(32)(1) Non-Recidivist Sentencing Factor Which Increases The Defendant’s Sentencing Exposure
    • PG VII(C)(32)(2) Non-Recidivist Sentencing Factor Resulting In Great Sentencing Disparity (“Tail Wagging The Dog”)
    • PG VII(C)(32)(3) Federal Right To Trial By Jury As To Prior Conviction
    • PG VII(C)(32)(4) Applicability Of Double Jeopardy To Sentencing Factors
    • PG VII(C)(32)(5) Apprendi: Additional Issues
    • PG VII(C)(32)(6) Constitutional Argument That Apprendi Applies To The Intent/Objective Requirement Of PC 654 / Jury Determination Of Sentencing Factors
    • PG VII(C)(32)(7) Whether Apprendi Forecloses Use Of A Juvenile Prior As A Strike Or Five Year Enhancement
    • PG VII(C)(32)(8) Applicability Of Constitutional Rights To Sentencing Decisions — Apprendi: Mandatory Minimums
    • PG VII(C)(32)(9) Applicability Of Constitutional Rights To Sentencing Decisions
    • PG VII(C)(32)(10) Apprendi/Ring/Blakely Update
    • PG VII(C)(33) Federal Constitutional Rights: Interference With Attorney-Client Relationship As Violation Of Federal Constitution
    • PG VII(C)(34) Substantive Federal Constitutional Issues: Impairment Of Right To Exercise Peremptory Challenges As Federal Constitutional Violation
    • PG VII(C)(35) Substantive Federal Constitutional Issues: Public Trials
    • PG VII(C)(36) Privilege Against Self-Incrimination.
    • PG VII(C)(37) Whenever Possible, Defense Counsel Should Categorize An Evidentiary Error As Being One Of Federal Constitutional Stature
    • PG VII(C)(38) Absence Of Defendant: Structural Error – Proceeding Regarding Counsel’s Conflict Or Ineffectiveness
    • PG VII(C)(38.1) Waiver Of Conflict
    • PG VII(C)(39) Due Process Fair Opportunity To Litigate Trial Motions
    • PG VII(C)(40) Substantial Federal Constitutional Rights: Argument On Summation To Jury
    • PG VII(C)(40.1) Right To Open-Minded Court During Oral Argument On Appeal
    • PG VII(C)(41) Equal Protection: Liberty Interest
    • PG VII(C)(42) Right To “Face-To-Face” Confrontation: Finding As To Necessity Required Before Using Procedures To Avoid Direct Confrontation Between Victim And Defendant
    • PG VII(C)(43) Right To Confrontation: Hearsay Testimony – Crawford Update
    • PG VII(C)(43.1) Hearsay May Violate Due Process In Addition To Confrontation
    • PG VII(C)(44) Right To Fair And Open-Minded Judicial Rulings
    • PG VII(C)(45) Prosecution’s Right To Due Process: Not Equivalent To That Of Criminal Defendant
    • PG VII(C)(46) Prosecution Misconduct As Constitutional Violation
    • PG VII(C)(47) Right To Due Process At Sentencing
    • PG VII(C)(48) Due Process: Interpretation In Light Of Common Law
    • PG VII(C)(49) Due Process And Cruel And Unusual Punishment: Interpretation In Light Of “Evolving Standards Of Decency”
    • PG VII(C)(50) Reliability As A Federal Constitutional Principle
    • PG VII(C)(51) Right To Counsel
    • PG VII(C)(51.1) Right To Counsel Is Fundamental
    • PG VII(C)(51.2) Right To Counsel Applies To All “Critical Stages” Whether Formal Or Informal
    • PG VII(C)(51.3) An Accused May Waive The Right To Counsel But Any Such Waiver Must Be Knowing And Intelligent
    • PG VII(C)(51.4) Absence Of Counsel At Critical Stage: Standard Of Prejudice — Per Se Reversal
    • PG VII(C)(52) Ineffective Assistance Of Counsel: Arguing Against Client’s Interests
  • PG VII(D) – Success on Federal Habeas
  • PG VII(E) – Standard of Prejudice on Federal Habeas
    • PG VII(E)(1) Standard Of Prejudice On Federal Habeas Corpus
    • PG VII(E)(2) Chapman Applies If State Court Failed To Apply Correct Standard
    • PG VII(E)(3) Standard of Prejudice On Federal Habeas: Habeas Help Available
    • PG VII(E)(4) Standard of Prejudice On Federal Habeas: Antiterrorism Act (AEDPA)
    • PG VII(E)(5) Standard Of Review On Habeas Corpus: No Deference To California Supreme Court’s Postcard Denial Of Habeas Petition
  • PG VII(F) – Making the Law/Fact Distinction
  • PG VII(G) – Burdens and Presumptions: Allocating the Burden of Proof as to Statutory Exception to Liability
  • PG VII(H) – PC 1122(a) Checklist re: Preinstruction
  • PG VII(I)(A) – Grounds For All Cases—Capital and Non-Capital
  • PG VII(I)(C) – Additional Constitutional Grounds For Death Cases
  • SPECIAL VERDICTS

  • PG VIII(A) – Special Verdicts: General Rule
  • PG VIII(B) – Special Verdict Language
  • PG VIII(C) – Special Verdicts to Prevent Retrial
  • PG VIII(D) – Special Verdicts to Meet Defendant’s Burden Under Guiton
  • PG VIII(E) – Sufficiency of Verdict
  • PG VIII(F) – Special Verdict Form: Coercive Impact on Jury
  • SUPPLEMENTAL INSTRUCTIONS

  • PG IX(A) – Supplemental Jury Instructions: Right to Counsel
  • PG IX(B) – Record of Supplemental Instructions
  • PG IX(C) – General Rules for Framing Supplemental Instructions
    • PG IX(C)(1) Special Care Needed
    • PG IX(C)(2) Response to Jury Reinstruction Request Must Be Balanced
    • PG IX(C)(3) Admonition That Supplemental Instructions Have No Greater Weight Than Original Instructions
    • PG IX(C)(4) Correct Regular Instruction Does Not Cure Improper Supplemental Instruction
  • PG IX(D) – Response to Jury Inquiry
    • PG IX(D)(1) Duty to Clarify Ambiguous Inquiry
    • PG IX(D)(2) Duty To Eliminate Juror Confusion
    • PG IX(D)(3) Readback Of Prior Instructions May Not Be Sufficient
    • PG IX(D)(4) Readback Procedure
    • PG IX(D)(4.1) Right To Readback
    • PG IX(D)(4.2) Presence Of Defendant At Readback
    • PG IX(D)(4.3) Right To Representation Of Counsel (And Presence Of Judge) At Readback
    • PG IX(D)(5) Withdrawal Of Confusing Instruction In Response To Jury Inquiry
  • PG IX(E) – Appellate Review of Supplemental Instructions
    • PG IX(E)(1) Whether Informal Mid-Deliberation Exchange Between Judge And Juror Counts As Jury Instruction
    • PG IX(E)(2) Cognizability Of Error In Supplemental Instructions
    • PG IX(E)(3) Error In Supplemental Instruction More Likely To Be Prejudicial
  • PG IX(F) – Sample Briefing on Court’s Duty to Respond to Juror Inquiry
  • PG IX(G) – Jury’s Request For Read-Back of Arguments of Counsel
  • PG IX(H) – New or Different Instructions During Deliberations
    • PG IX(H)(1) Instructions Inconsistent With Defendant’s Theory Of The Case
    • PG IX(H)(2) New Charges of Theories
    • PG IX(H)(3) Change In Definition Or Statement Of The Law
    • PG IX(H)(4) Right To Reargue After Supplemental Instructions
    • PG IX(H)(5) Mid-trial Change In Ruling Regarding Instruction
    • PG IX(H)(6) Supplemental Instruction Should Not Tell Jury In What Order To Consider Issues
  • PG IX(I) – Substitution of Alternate Juror
  • PG IX(J) – Instructions to a Deadlocked Jury
    • PG IX(J)(1) General Rule
    • PG IX(J)(2) Inquiry Into Numerical Division Of Jury May Coerce Verdict
    • PG IX(J)(3) Instruction On Lesser Included In Response To Jury Deadlock
    • PG IX(J)(4) Dismissal Of Certain Charges In Response To Jury Deadlock
    • PG IX(J)(5) Failure Of Jury To Agree Upon Entrapment
    • PG IX(J)(6) Advice As To Consequences Of Deadlock
    • PG IX(J)(7) Both Minority And Majority Must Be Encouraged To Consider The Other’s View
    • PG IX(J)(8) Instructions Should Inform Jury That A Verdict Need Not Be Reached
    • PG IX(J)(9) New Instructions At The Time Of The Deadlock Heighten The Coerciveness
    • PG IX(J)(10) Removal Of Holdout Juror When Jury Is Deadlocked
    • PG IX(J)(11) Removal Of Holdout Juror: Applicability Of Double Jeopardy
    • PG IX(J)(12) Removal Of Holdout Juror: Improper To Remove Based On Failure To Disclose Information On Voir Dire
    • PG IX(J)(13) Juror Deadlock: Sample Instruction
    • PG IX(J)(14) Coercive Deadlock: Standard Of Prejudice
    • PG IX(J)(15) CRC Rule 2.1036 And Available Options In Response To Deadlock
    • PG IX(J)(16) Juror Deadlock: Virga Firecracker Instruction
  • PG IX(K) – Jury Nullification Issues and Sanctions Against “Offending Jurors”
  • PG IX(L) – Juror Agreement to Disregard an Instruction
  • PG IX(M) – Access to Jurors’ Names and Addresses
  • APPEAL OF JURY INSTRUCTION ISSUES

  • PG X(A) – Standards of Review
    • PG X(A)(1) Rules For Determining Whether The Evidence Justifies An Instruction
    • PG X(A)(1.1) Substantial Evidence
    • PG X(A)(1.2) Sufficiency Determination Must Be Made Without Reference To Credibility Of The Evidence
    • PG X(A)(1.3) Evidence Must Be Viewed In Favor Of The Instruction
    • PG X(A)(1.3.1) Defendant’s Testimony Constitutes Substantial Evidence Even If Implausible And Seriously Contradicted
    • PG X(A)(1.3.2) Neither Defendant’s Testimony Nor Affirmative Defense Evidence Is Necessary For Instruction On Defense Theory
    • PG X(A)(1.3.3) Requested Instructions: Doubts Resolved In Favor Of Defendant
    • PG X(A)(1.3.4) Right To Instruction Must Not Be Based On A Binary Choice Between The Prosecution And Defense Evidence: Instruction On “Third Scenario” May Be Appropriate
    • PG X(A)(1.4) Applicability To Sua Sponte And Requested Instructions
    • PG X(A)(1.4.1) Sua Sponte Duty Governed By Substantial Evidence Without Regard To Source Or Credibility Of The Evidence
    • PG X(A)(1.4.2) General Rules
    • PG X(A)(1.5) Standards Of Review – Substantial Evidence: Independent Review Required When First Amendment Implicated
    • PG X(A)(1.6) Appellate Review Must Be Limited To Evidence That Was Before The Lower Court
    • PG X(A)(1.7) Giving Of Defense Theory Instruction Demonstrates Existence Of Substantial Evidence In Support Of Defense Theory
    • PG X(A)(2) De Novo Standard Of Review For Instructional Error
    • PG X(A)(3) “Reasonable Likelihood” Standard Applies To Ambiguous Instructions
    • PG X(A)(3.1) Common Sense Understanding Of Instructions Will Prevail
    • PG X(A)(3.2) Whether Reviewing Court Should Not Interpret Instructions So As To Support The Judgment
    • PG X(A)(4) Standards Of Review: Distinction Between “Independent Review” And “De Novo” Review
    • PG X(A)(5) Standard Of Review: Influenced By Importance Of Legal Rights Or Interests at Stake
    • PG X(A)(6) Review Of Order Granting Motion For New Trial
    • PG X(A)(7) Review Of Order Granting Habeas Petition
    • PG X(A)(8) Juror Misconduct: Standard Of Review – Review Of Denial Of Motion For New Trial
    • PG X(A)(9) Juror Misconduct: Standards Of Prejudice – General Standard Of Prejudice
    • PG X(A)(10)(a) Standard Of Review: Federal Habeas Where State Court Did Not Reach The Issue
    • PG X(A)(10)(b) Standard Of Review: Jury Instruction Error On Federal Habeas
    • PG X(A)(11) Standard Of Review: Ineffective Assistance Of Counsel
    • PG X(A)(12) Standard Of Review: Diminished Capacity
  • PG X(B) – Standards of Prejudice
    • PG X(B) Standard Of Review vs. Standard Of Prejudice
    • PG X(B)(1) The Three Traditional Standards Of Prejudice
    • PG X(B)(1.1) Standards Of Prejudice: Structural Error
    • PG X(B)(1.2) Standards Of Prejudice: Chapman Standard Imposes Burden On Prosecution To Prove Harmlessness Beyond A Reasonable Doubt
    • PG X(B)(1.3) Non-Constitutional Error: Presumption Of Prejudice
    • PG X(B)(2) Per Se Reversal Rule Applies To “Structural” Errors And Errors Which Preclude Meaningful Review
    • PG X(B)(2.1) Precluding Defendant From Arguing Theory Of Case Is Structural Error
    • PG X(B)(2.2) Structural Error: Denial Of Counsel At Critical Stage
    • PG X(B)(3.1) Standard Of Prejudice When Instructions Include Legally Incorrect Theory
    • PG X(B)(3.2) Standards Of Prejudice: Overwhelming Evidence Of Guilt Does Not Preclude Reversal For Instruction On Erroneous Legal Theory
    • PG X(B)(4) Standard of Prejudice When Instructions Include Factually Insufficient Theory: Green Rule Upheld as to Legal Theories and Overturned as to Factual Theories
    • PG X(B)(5) Trial And Appellate Strategies Now That Defendant Has Burden To Show Prejudice From A Factually Insufficient Theory
    • PG X(B)(5)(a) Distinction Between Factual and Legal Theory
    • PG X(B)(5)(b) Proving a Reasonable Probability of Jury Reliance
    • PG X(B)(5)(c) Strategy Ideas
    • PG X(B)(5)(d) Potential Constitutional Challenges to Guiton
    • PG X(B)(5.1) Standards Of Prejudice: Equal Reliance On Factual Theories Requires Reversal
    • PG X(B)(6) Standard Of Prejudice On Federal Habeas
    • PG X(B)(7) No Appellate Issue Where Instructional Error Favors Defendant
    • PG X(B)(8) Standard Of Prejudice: Prophylactic Reversal — Necessity Of Reversing Conviction To Avoid Future Error
    • PG X(B)(9) Prejudicial Error: The Applicable Tests And How To Satisfy Them
    • PG X(B)(10) Standard Of Prejudice: Habeas Corpus — No “Presumption Of Correctness” As To Harmless Error Analysis
    • PG X(B)(11) Standard Of Prejudice: Improper Presumptions
    • PG X(B)(12) Standards Of Prejudice: Burden Of Proof As To Specific Defense Theory
    • PG X(B)(13) Standard Of Prejudice: Failure To Instruct On Special Circumstance
    • PG X(B)(14) Standard Of Prejudice: Misinstruction Or Conflicting Instructions On An Element Of The Offense
  • PG X(C) – Nature of the Error Determines Standard of Prejudice
    • PG X(C)(1)(a) Removal Of All Elements
    • PG X(C)(1)(b) Removal Of A Single Element
    • PG X(C)(1)(b)(I) Removal Of A Single Element Requiring Less Than Proof Beyond a Reasonable Doubt
    • PG X(C)(1)(c) Reduction Of Charge To Lesser Offense For Failure To Instruct On Elements Of The Greater Offense
    • PG X(C)(1)(d) Reversal Per Se Applies Even If Evidence “Uncontroverted”
    • PG X(C)(2) Failure to Instruct on Lesser Offense
    • PG X(C)(2.1) Harmless Error Analysis Applied For Failure To Instruct Upon Lesser Included Offense Of An Alternative Charge Per Guiton
    • PG X(C)(3) Failure to Instruct on Defense
    • PG X(C)(3.1) Failure To Instruct On Defense: General Instruction On Element Of Charge Is Insufficient
    • PG X(C)(3.2) Failure To Instruct On Defense Theory: Standard Of Prejudice
    • PG X(C)(4) Instruction Which Directs Verdict Against the Defendant
    • PG X(C)(5) Instruction Which Affects Prosecution’s Burden Without Totally Removing an Element of the Charge
    • PG X(C)(6) Failure To Instruct On Element Of A Special Circumstance Allegation
    • PG X(C)(7) Standard Of Prejudice: Failure To Instruct On Element Of Enhancement
    • PG X(C)(8) Failure To Define A Technical Term As Reversible Error
    • PG X(C)(9) Failure To Instruct On Corroboration Requirement
    • PG X(C)(10) Failure To Give Defense Pinpoint Instruction
    • PG X(C)(11) Harmless Error Analysis For Federal Constitutional Error: Impact On Verdict In Case At Hand
    • PG X(C)(12) Juror Unanimity: Sullivan v. Louisiana Requires Reversal Per Se
    • PG X(C)(13) Duty To Request Instructions: When Instruction May Be Based On Defendant’s Perjured Testimony
    • PG X(C)(14) Written Instructions To The Jury As Reversible Error
    • PG X(C)(15) Whether Denial Of Right To Jury Trial On Prior Conviction Is Reversible Per Se (PC 1025)
    • PG X(C)(16) Standard Of Prejudice: Civil Commitment Proceeding
    • PG X(C)(17) Standard Of Prejudice: Mentally Disordered Offender
    • PG X(C)(18) Standard of Prejudice: Instructional Errors In Competency Hearings
    • PG X(C)(19) Erroneous Reasonable Doubt Instruction As Reversible Per Se
    • PG X(C)(20) Standard Of Prejudice: Failure To Instruct On Jury Unanimity
    • PG X(C)(20)(i) Chapman vs. Watson
    • PG X(C)(20)(ii) Key Is Basis In The Record By Which Jurors Could Have Differentiated Between The Acts
    • PG X(C)(21) Act-Intent/Mental State Concurrence: Standard Of Prejudice
    • PG X(C)(22) Failure to Instruct Upon Shackling: Standard Of Prejudice: Restraints Visible
    • PG X(C)(23) Standard Of Prejudice: Amanda/Bouton
    • PG X(C)(24) Standard Of Prejudice: Blakely Error
  • PG X(D) – General Rules in Evaluating Prejudicial Effect of Instructions
    • PG X(D)(1) Jurors Assumed To Be Intelligent
    • PG X(D)(2) Jurors Presumed To Follow The Instructions
    • PG X(D)(3) Specific Controls Over General
    • PG X(D)(4) Instructions Considered As Whole
    • PG X(D)(5) Applying Instructional Principle To One Aspect Of The Charge And Not To Another
    • PG X(D)(6) Jury Questions As Evidence That Original Instructions Were Not Clear
  • PG X(E) – Helpful Rules and Standards for Showing Prejudice
    • PG X(E)(1) Jury Instructions Are Of Critical Importance
    • PG X(E)(2) Influence Of The Judge
    • PG X(E)(3) Cumulative Prejudice
    • PG X(E)(4) Misinstruction On A Vital Issue In A Close Case
    • PG X(E)(5) Prosecutorial Exploitation Of The Error In Argument
    • PG X(E)(5)(a) Reference To Erroneous Instructions
    • PG X(E)(5)(b) Exploitation Of Erroneous Failure To Instruct:
    • PG X(E)(6) Defense Counsel Forced to Make Closing Argument Without Support of Instruction
    • PG X(E)(7) Erroneous or Incomplete Instructions In Response To Jury Inquiry
    • PG X(E)(8) Correct Preinstruction Does Not Cure Error
    • PG X(E)(8.1) Conflict Between Instructions Does Not Clarify Which Applies
    • PG X(E)(8.2) Conflict Between Definition Of Elements In Preamble And Body Of The Instruction
    • PG X(E)(9) Correct Oral Instruction Does Not Cure Erroneous Or Incomplete Written Instruction
    • PG X(E)(10) Correct Supplemental Instruction Does Not Cure Error
    • PG X(E)(11) Response To Jury Re-instruction Request Must Be “Balanced”
    • PG X(E)(12) Prompt Return Of Verdict
    • PG X(E)(12)(a) Verdict After Jury Hears Erroneous Instruction
    • PG X(E)(12)(b) Verdict After Jury Hears Incomplete Charge
    • PG X(E)(12)(c) Short Deliberation Does Not Cure Prejudice
    • PG X(E)(13) Return Of Verdict By Previously Deadlocked Jury
    • PG X(E)(14) Cross-Examination Cannot Cure Instructional Error
    • PG X(E)(15) Jury May Accept Some Portions of a Witness’ Testimony And Reject Other Portions
    • PG X(E)(16) Errors In Superfluous or Irrelevant Instructions
    • PG X(E)(17) Instruction In Absence Of Counsel
    • PG X(E)(18) Juror Agreement To Disregard Court’s Instructions
    • PG X(E)(19)(1) Inability Of Limiting Instructions To Cure Error
    • PG X(E)(19)(1.1) Inability Of Limiting Instructions To Cure Evidentiary Error
    • PG X(E)(19)(1.2) Jurors’ Inability To Perform Mental Gymnastics
    • PG X(E)(19)(2) Cautionary/Limiting Instructions May Emphasize The Prejudicial Matter
    • PG X(E)(19)(3) Defendant Should Decide Whether Cautionary/Limiting Instruction Is Given
    • PG X(E)(19)(4) Whether Cautionary Instruction Can Preclude Improper Juror Consideration of Hearsay Upon Which Expert Relied?
    • PG X(E)(20) Erroneous Instruction As To One Charge May Be Prejudicial As To Others
    • PG X(E)(21) Consideration Of Instructions Re: Prejudice From Jury Misconduct
    • PG X(E)(22) Helpful Rules And Standards For Showing Prejudice: Special Verdicts
    • PG X(E)(23) Prejudicial Effect Of “Over-Instruction” When Defendant Convicted Of Lesser Offense
    • PG X(E)(24) Failure Of Defendant To Testify: Whether Omission Of Instruction Can Be Harmless Error
    • PG X(E)(25) Credibility Contest Between Prosecution And Defense Witnesses Is Close Case
    • PG X(E)(25.1) Where Case Turns On Credibility of Single Prosecution Witness
    • PG X(E)(26) Failure Of Jury To Ask Questions Does Not Cure Instruction Error
    • PG X(E)(26.1) Consideration Of Juror Questions In Evaluating Prejudicial Impact Of Instructional Error
    • PG X(E)(26.2) Failure To Ask Questions Does Not Demonstrate Juror Understanding Of The Instructions
    • PG X(E)(26.3) Juror’s Failure To Ask Questions Does Not Establish That The Instruction Was Correct
    • PG X(E)(27) Regardless Of The Applicable Harmless Error Test, There Are A Number Of Factors Which May Be Used To Show Prejudice In A Particular Case
    • PG X(E)(28) Post-Trial Events Cannot Cure Instruction Error
  • PG X(F) – Indicia of a Close Case
  • PG X(G) – Effect of Argument on Instructional Error
    • PG X(G)(1) Argument Of Prosecutor Heightens Prejudice
    • PG X(G)(2) Jurors Presumed To Follow The Law Instead Of Argument
    • PG X(G)(3) Argument Of Counsel Cannot Substitute For Instruction
    • PG X(G)(3.1) Effect of Argument on Instructional Error: Arguments Of Counsel Carry “Less Weight” Than Instructions
    • PG X(G)(4) Jury Not Constrained By Theories Advanced By Counsel
    • PG X(G)(5) Counsel Should Not Be Permitted To Argue Differing Views Of The Law
    • PG X(G)(6) Instructional Error May Result In Failure To Pursue The Matter During Argument To The Jury
    • PG X(G)(7) Counsel’s Argument As To Legal Meaning Of Instruction Is Crucial When Instructions Are Ambiguous Or Insufficient
    • PG X(G)(8) Effect of Argument on Instructional Error: Improper For Counsel To Argue Only Favorable Portion Of An Instruction
    • PG X(G)(9) Applicability Of Guiton When Prosecutor Argues Alternative Theories To The Jurors
    • PG X(G)(10) Defense Counsel Forced To Make Closing Argument Without Support Of Instruction
  • PG X(H) – Inconsistent Verdicts
  • PG X(I) – Standard of Review for Failure to Instruct on Element of Special Circumstance
  • PG X(J) – Standard of Prejudice: Failure to Instruct on LIO
    • PG X(J)(1) Failure To Instruct Sua Sponte Governed By Watson
    • PG X(J)(2) Refusal Of Request To Instruct On Lesser-Included Offense Governed By Federal Standard Of Prejudice
    • PG X(J)(3) Does Breverman Apply to Lessers Which Are Actually Elements?
    • PG X(J)(4) Only One Juror Need Be Affected to Warrant Relief
    • PG X(J)(5) Making The Watson Standard More Objective By Utilizing “Indicia of a Close Case”
    • PG X(J)(6) Unwarranted Instruction On Lesser Is Not Reversible Error If It Was Favorable To Defendant
    • PG X(J)(7) Standard Of Prejudice: Failure To Instruct On LIO—Conviction Of Greater Offense Does Not Cure Error In Failing To Instruct On Lesser Offense
    • PG X(J)(8) All Or Nothing Analysis
  • PG X(K) – Ineffective Assistance of Counsel on Appeal
    • PG X(K)(1) Complete Denial Of Appeal
    • PG X(K)(2) Failure To Raise Specific Issues
    • PG X(K)(3) “No Merit” Briefs: Anders/Wende
    • PG X(K)(3.1) Appellate Counsel Who Served At Trial Should Never File Anders/Wende Brief
    • PG X(K)(4) Ineffective Assistance Of Counsel On Appeal: Failure To Keep Abreast Of Legal Developments Relevant To The Appeal
  • PG X(L) – Juror Agreement to Disregard an Instruction
    • PG X(L)(1) Juror Agreement To Disregard An Instruction
    • PG X(L)(2) Due Process Basis For Admissibility Of Juror Misconduct Notwithstanding EC 1150
    • PG X(L)(3) Proposition 8 Basis For Admissibility Of Juror Misconduct
    • PG X(L)(4) Jury Misconduct: Consideration Of Juror Declarations Or Affidavits
    • PG X(L)(5) Juror Misconduct: Duty Of Inquiry
    • PG X(L)(6) Juror Misconduct: Source And Means Of Juror Exposure To Extrinsic Evidence
    • PG X(L)(7) Juror Misconduct: Standard Of Review – Review Of Denial Of Motion For New Trial
    • PG X(L)(8) Juror Misconduct: Standards Of Prejudice
    • PG X(L)(8.1) General Standard Of Prejudice
    • PG X(L)(8.2) Standard Of Prejudice When Jurors Receive Extraneous Information
  • PG X(M) – Access to Jurors’ Names and Addresses
  • PG X(N) – Jury Nullification Issues and Sanctions Against “Offending Jurors”
  • PG X(O) – A Suggested Approach to Finding Instructional Error on Appeal
  • PG X(P) – Appeal: Remand
    • PG X(P)(1) Right To Peremptory Challenge Of Trial Judge Following Appeal And Remand For Resentencing
    • PG X(P)(2) Remand With Instructions To Impose Judgment On Lesser Included Offense
  • PG X(Q) – Presenting Claims on Appeal to the Reviewing Court
    • PG X(Q)(1) Each Point In An Appellate Brief Must Be Stated In A Separate Heading
    • PG X(Q)(2) Appellate Claim Must Include Citation To Authority
    • PG X(Q)(3) Failure To Argue As Concession Of Point
    • PG X(Q)(4) Appellate Court May Consider A Claim On Its Own Motion Even If Not Raised By Counsel
    • PG X(Q)(5) Consideration Of “Moot” Issues
    • PG X(Q)(6) Remand
  • PG XI CALCRIM Practice Guide
  • PG XI(A) Propriety Of Non-CALCRIM Instructions
    • PG XI(A)(1) CALCRIM Is Not The Law.
    • PG XI(A)(2) The Trial Judge Has Broad Inherent Discretion Over Jury Instructions
    • PG XI(A)(3) The Endorsement Of CALCRIM By The Rules Of Court Is Merely A Non-Binding Recommendation
    • PG XI(A)(3.1) A Court’s Inherent Discretionary Powers And Duties Supersede Any Recommendation By The Rules Of Court
    • PG XI(A)(3.2) The Federal Constitution Supersedes The Rules Of Court
    • PG XI(A)(3.3) Like CALJIC, CALCRIM Is Not Sacrosanct
    • PG XI(A)(3.4) Danger That CALCRIM Will Sacrifice Accuracy For Clarity
    • PG XI(A)(4) Instructional Authority Also Comes From The Federal Constitution
    • PG XI(A)(5) The Court Rules Anticipate That Non-CALCRIM Instructions Be Considered
    • PG XI(A)(6) The Court Rules Anticipate That Non-CALCRIM Instructions Be Given
  • PG XI(B) Propriety Of Modified Or Tailored CALCRIM Instructions
    • PG XI(B)(1) CALCRIM Is Not Sacrosanct
    • PG XI(B)(2) The Court Rules Anticipate The Giving Of Modified CALCRIM Instructions
    • PG XI(B)(3) Rule 855(e) Erroneously Assumes That The Only Role Of Jury Instructions Is To “State The Law”
  • PG XI(C) CALCRIM vs. CALJIC
    • PG XI(C)(1) Propriety Of Mixing CALCRIM And CALJIC Instructions
    • PG XI(C)(2) Whether CALJIC Should Still Be Used
    • PG XI(C)(3) CALJIC Instructions Are Not A Benchmark For CALCRIM
    • PG XI(C)(4) Evaluating CALCRIM Instructions In Light Of Cases Discussing Analogous CALJIC Instructions
  • PG XI(D) Lists And Tables Of CALCRIM Instructions
    • PG XI(D)(1) Cross-Reference Table B CALCRIM And CALJIC
    • PG XI(D)(2) CALCRIM Instructions Stating That Certain Kinds Of Evidence Are Not Alone Sufficient To Convict
    • PG XI(D)(3) CALCRIM Instructions Listing Specific Factors For Juror Consideration
    • PG XI(D)(4) CALCRIM Instructions With Post Elements Burden Of Proof Language
  • PG XI(E) CALCRIM: Procedural Challenges
    • PG XI(E)(1) Ex Post Facto
    • PG XI(E)(2) The Judicial Council Has A Financial Conflict Of Interest As To CALCRIM
  • PG XI(F) CALCRIM: Identification Of Players
  • PG XI(G) CALCRIM And Lesser Included Offense Instructions
    • PG XI(G)(1.1) Request for CALCRIM Instruction Does Not Preserve Issues Included In Bench Notes.
  • PG XI(H) CALCRIM And Specific/General Intent
  • PG XI(I) Role Of CALCRIM Bench Notes
  • PG XI(J) Judicial Notice Of CALCRIM Instructions
  • CHECKLISTS

  • CHK I – California Statutes and Rules of Court Relevant to Jury Instructions
    • CHK I(A) Statutes Relevant To Jury Instructions [Through 1/1/2007]
    • CHK I(B) California Rules Of Court Relevant To Jury Instructions [Through 1/1/2007]
  • CHK II – Sua Sponte Instructions
  • CHK III – Technical Terms and Definitions
    • CHK III(A) Terms With A Specialized Or Technical Legal Meaning
    • CHK III(B) Definition May Be Required Of Non-Technical Term If Jury Expresses Lack Of Understanding
    • CHK III(C) Reference To Jury Service Materials When A Term Is Not Defined
    • CHK III(D) Technical Terms: Checklist
  • CHK IV – Rules of Statutory Construction
    • CHK IV(A) Must Be Construed In Favor Of The Defendant
    • CHK IV(B) Fundamental Rules Of Statutory Interpretation
    • CHK IV(C) Examples Of Extrinsic Aids
    • CHK IV(D) Construction Of Words And Phrases
    • CHK IV(E) Amendment of Statute
    • CHK IV(F) Reenactment Of A Statute
    • CHK IV(G) Repeal By Implication Is Disfavored
    • CHK IV(H) Construction of Specific Words
    • CHK IV(I) Legislation By Implication Is Disfavored
    • CHK IV(J) Rules Of Statutory Construction: Two Laws On The Same Subject
    • CHK IV(K) Interpretation Of Language Of Voter Initiatives
    • CHK IV(L) Criminal Statutes Should Normally Be Construed To Require Mens Rea Even If Statutory Language Is Silent
    • CHK IV(M) Statutory Construction Re: Jury Instructions Subject To De Novo Review
  • CHK V – PC 1122(a) Checklist re: Preinstruction
  • Lesser Included Offenses

  • LIO I – Determining LIO
    • LIO I(A) General Rules
    • LIO I(B) Testimony As To Lack Of Intent Not Necessary
    • LIO I(C) Saille Does Not Relieve Trial Court Of Its Sua Sponte Burden To Instruct Upon Intoxication Based Lesser Included Offenses
    • LIO I(D) Enhancements
    • LIO I(E)(1) Enhancement Allegations Not Considered In Determining Sua Sponte Duty To Instruct On Lesser Offense
    • LIO I(E)(2) Whether Enhancement Allegations May Be Considered In Determining Lesser Included Offenses For Purposes Of Double Jeopardy
    • LIO I(F) Applicability Of Adult Criminal Law Principles To Juvenile Proceedings
    • LIO I(G) Specific Developments
  • LIO II – Duty to Instruct
    • LIO II(A) General Rules
    • LIO II(A)(1) Upon request
    • LIO II(A)(2) Decision Rests With Defendant
    • LIO II(A)(3) Sua Sponte Duty To Instruct On Lesser Included Offenses
    • LIO II(A)(4) Lesser Enhancements Must Be Requested
    • LIO II(B) Testimony as to Lack of Intent Not Necessary for Instruction on Lesser Offense
    • LIO II(C) Due Process Underpinnings
    • LIO II(D) Duty Of Court To Instruct On Lesser Included Offense Over Defense Objection
    • LIO II(E)(1) Time-Barred Lesser Offenses
    • LIO II(E)(2) Forfeiture Of Statute Of Limitations For Failure To Object
    • LIO II(F) No Lesser Instruction Required For Felony Which Is Basis For Special Circumstance Allegation But Is Not Separately Charged
    • LIO II(G) Appellate Court May Reduce Charge To Lesser Included To Which Defense Successfully Objected Below
    • LIO II(H) New Charges Or Theories During Deliberations
  • LIO III – Attempts
    • LIO III(A) Whether An Attempt Is Always A Lesser Included Of The Completed Offense
    • LIO III(B) Are There Any Necessarily Included Lessers To Attempted Murder
    • LIO III(C) Degree Of Attempted Murder
    • LIO III(D) PC 459 — Burglary
    • LIO III(E) HS 11352 — Possession of Controlled Substance for Sale
    • LIO III(F) VC 23152(a) — Attempted Driving Under the Influence May Be a Lesser Included Offense of Driving Under the Influence
    • LIO III(G) HS 11379.6(a) — Manufacture Of Controlled Substance
  • LIO IV – Standard of Prejudice For Failure To Instruct on LIOs
  • LIO V – Double Jeopardy
    • LIO V(A) Conviction Of Both Greater And Lesser Included Offenses
    • LIO V(B) Reduction of Degree
    • LIO V(C) Waiver Of Double Jeopardy
    • LIO V(D) Conviction Of Lesser Offense – Impact On Greater Offense
    • LIO V(E) Granting Of New Trial On Lesser Precludes Retrial of Greater
    • LIO V(F) Impact Of A New Trial Order On Double Jeopardy
    • LIO V(G) Dismissal Of Greater Offense On Appeal Allows Reinstatement Of Dismissed Lesser Included Offense
  • LIO VI – Lesser Included Checklist
    • LIO VI(A) Introduction And Caveats
    • LIO VI(B) Penal Code (PC) Violations
    • LIO VI(C) Health and Safety Code (HS) Violations
    • LIO VI(D) Vehicle Code (VC) Violations
    • LIO VI(E) Harbor and Navigation Code (HN) Violations
    • LIO VI(F) Revenue and Taxation Code (California) (RT) Violations
    • LIO VI(G) Miscellaneous Rules and Codes
  • LESSER RELATED OFFENSES

  • LRO I – General Rules
    • LRO I(A) Due Process Violated By Instruction On Uncharged Related Offense Over Defense Objection
  • LRO II – Theories For Instruction On LROs Notwithstanding Birks
    • LRO II(A) Background
    • LRO II(B) Conflict Between Birks and the Right to Present a Defense
    • LRO II(C) Right to Lesser Related Instructions When the Prosecution Opens the Door
    • LRO II(D) The Jury Should at Least Be Informed about the Uncharged Related Offenses So It Can Meaningfully Represent the Conscience of the Community
    • LRO II(E) Using Instruction on a Related Offense to Clarify the Charged Offense
    • LRO II(F) Instruction On Lesser Related Offenses Is Still Permissible By Stipulation
    • LRO II(G) Birks Demonstrates That Improper Overcharging Is Prejudicial
    • LRO II(H) Retroactivity of Birks — Changing the Rules in the Middle of the Game
    • LRO II(I) Renewed Importance Of Considering Lesser Includeds Based On The Charging Language
    • LRO II(J) The Defendant Should Be Permitted To Move For Amendment Of The Information Under PC 1009 To Add Uncharged Offenses
    • LRO II(K) Even If Granting A Defense Motion To Amend Violates Separation Of Power Principles, Federal Constitutional Principles Require The Court To Consider A Discretionary Motion To Amend By The Defendant
  • LRO III – Tests For A Lesser Related Offense
    • LRO III(A) Requirement That Some Basis Exist, Other Than An Unexplainable Rejection Of Prosecution Evidence, For Jury To Find An Offense To Be Less Than That Charged (Geiger (84) 35 C3d 510, 531
    • LRO(III)(B) Evidentiary Test
    • LRO(III)(B)(1) Test For Relatedness
    • LRO III(C) Requirement That Defendant’s Rebuttal Of The Charged Offense Be Consistent With Conviction For The Lesser Related Offense
    • LRO III(D) When Alibi Or Identity Defense Does Not Preclude Lesser Related Offense
    • LRO III(E) Determining Whether A Related Offense Is “Lesser”
  • LRO IV – Preserving Objections To Instructions On Lesser Related Offenses
    • LRO IV(A) Both Parties Must Stipulate
    • LRO IV(B) Mere Failure To Object To Uncharged Related Offense Is Not Implied Consent
  • LRO V – Does Defendant’s Request For Instruction On A Particular Unrelated Offense Allow The Prosecutor To Request Instruction On Other LROs?
  • LRO VI – Time-Barred Lesser Related Offenses
  • LRO VII – Standard of Prejudice
  • LRO VIII – Impact of Lesser Related Offense on Case Disposition
    • LRO VIII(A) Conviction Of Both Charged And Lesser Related Offenses
    • LRO VIII(B) Refiling After Reversal
    • LRO VIII(C) Trial Court May Not Reduce Charged Offense To A Lesser Related
  • LRO IX – Specific Developments
    • LRO IX(A) Accessory Involvement (PC 32)
    • LRO IX(B) Assault
    • LRO IX(C) Battery
    • LRO IX(D) Brandishing Or Exhibiting A Firearm
    • LRO IX(E) Controlled Substance Offenses
    • LRO IX(F) Driving Under The Influence
    • LRO IX(G) Joyriding (PC 499b)
    • LRO IX(H) Petty Theft
    • LRO IX(I) Receiving Stolen Property
    • LRO IX(J) Torture (Prop. 115) (PC 206)
    • LRO IX(K) Weaving
    • LRO IX(L) Willful Cruelty To Child (PC 273)
    • LRO IX(M) Felony Murder Special Circumstance
    • LRO IX(N) Trespass
    • LRO IX(O) Arson
  • BIBLIOGRAPHY

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