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F 2.026a
Cautionary Instruction: When Defendant Testifies In Narrative Fashion
The defendant’s testimony was in the form of a narrative without questioning from defense counsel. This is an acceptable procedure which is authorized by law.
The fact that this procedure was used must not be considered by you in evaluating the defendant’s testimony or in deciding any of the issues in this case. The defendant’s testimony should be considered and evaluated in the same way as any other witness.
Points and Authorities
People v. Johnson (98) 62 CA4th 608 [72 CR2d 805] held that defense counsel should allow the defendant to testify in a narrative fashion when counsel believes that the testimony will be false. However, some commentators — with whom the Johnson court disagreed — observed that the narrative approach necessarily communicates to the jury that the defense counsel believes the defendant is lying. (see e.g., [from Johnson].) While Johnson did not feel that this would be communicated to the jury, it may be appropriate to request a cautionary instruction which explains that the narrative approach is an accepted and authorized procedure without alerting the jury to counsel’s disbelief of his or her client. (See e.g., FORECITE F 0.50b.)
CAVEAT: Of course, the decision whether to request such an instruction requires careful evaluation as to whether it will unduly emphasize the factor sought to be limited. (See PG X(E)(19) “CAVEAT”.) Consideration should also be given to the impact of the cautionary instruction on the potential constitutional challenge on appeal. Whether requested or not, counsel should consider emphasizing the inadequacy of a limiting instruction due to the danger it will highlight the prejudice. (See PG X(E)(19).)
It may also be useful on appeal for trial counsel to state on the record that the cautionary instruction was requested as a “defensive act” rather then because of counsel’s belief that the instruction will completely cure or limit the potential prejudice. (See People v. Turner (90) 50 C3d 668, 704, fn 18 [268 CR2d 706]; see also FORECITE PG VI(A)(4).)
F 2.026b
Non-CALJIC Cautionary Instructions:
Cautionary Instruction Regarding Defendant’s Misconduct In Court
You must disregard everything you saw and heard in connection with the defendant’s conduct in court and decide the case solely on the evidence. The prosecution has the burden of proving the defendant guilty beyond a reasonable doubt and every juror must presume that the defendant is innocent unless and until all jurors have unanimously determined, after deliberation, that [he] [she] is guilty beyond a reasonable doubt by the trial evidence.
Points and Authorities
The first sentence of the above instruction is adapted from People v. Arias (96) 13 C4th 92, 148 [51 CR2d 770]. The second sentence is based on the need to reinstruct the jury on the presumption of innocence in the face of potentially prejudicial matters. (See Castillo v. Stainer (9th Cir. 1992) 983 F2d 145, 147; U.S. v. Milner (9th Cir. 1992) 962 F2d 908, 911-12 [jury instructed that custody status is irrelevant to the decision as to whether defendant is guilty].)
It is established that the defendant’s non-testimonial in-court demeanor, conduct or appearance is not evidence and the jury may not consider it. (See FORECITE F 2.60c.) However, when the defendant misbehaves there is a greater need to consider such an instruction in light of the potential inflammatory impact on the jury. When the defendant engages in an outburst during trial the prejudicial impact is obviously high. However, where the situation was of the defendant’s own making, absent irremediable prejudice, a cautionary admonition has been held to be sufficient. (See People v. Astacio (NY 1987) 516 NYS2d 508; see also, U.S. v. Smith (8th Cir. 1978) 578 F2d 1227, 1236; Howard G. Leventhal, Charges To The Jury and Requests To Charge In A Criminal Case — New York (1989 Revised Ed.; Lawyer’s Cooperative Publishing) 4:61.35.) Such an instruction should inform the jury to base its determination solely upon the evidence. The jurors should further be directed to put the matter totally out of their minds as if it had not occurred and not to consider it in their deliberations at all. (Leventhal (1988) Charges To Jury Crim. Case 4:61.30.)
CAVEAT: The decision whether to request such an instruction requires careful evaluation as to whether it will unduly emphasize the factor sought to be limited. (See “CAVEAT” to FORECITE F 1.04a.) Consideration should also be given to the impact of the cautionary instruction on the potential constitutional challenge on appeal. Whether requested or not counsel should consider emphasizing the inadequacy of a limiting instruction due to the danger it will highlight the prejudice.
