CALCRIM Is Not The Law And Is Not Sacrosanct
January 27th, 2015

“Jury instructions are only judge-made attempts to recast the words of statutes and the elements of crimes into words in terms comprehensible to the lay person. The texts of standard jury instructions are not debated and hammered out by legislators, but by ad hoc committees of lawyers and judges. Jury instructions do not come down from any mountain or rise up from any sea. Their precise wording, although extremely useful, is not blessed with any special precedential or binding authority. This description does not denigrate their value, it simply places them in the niche where they belong.” (McDowell v. Calderon (9th Cir. 1997) 130 F.3d 833, 841; People v. Thompkins (1987) 195 Cal.App.3d 244, 250 [rote recitation of general form instructions will not always suffice to fulfill the court’s instructional obligations].)
Hence, the fact that the CALCRIM instructions are recommended by the Judicial Council (Rule 855(e)) and in general use does not make them correct and/or sacrosanct. For example, People v. Smith (2014) 60 Cal. 4th 603 concluded that a portion of CC 402 which had been extant for many years was an incorrect statement of the law. In so doing the Supreme Court warned that “[t]he mere fact that [a] sentence is in CALCRIM does not make it legally correct.” (Id. at p. 614.) The Court also admonished that “[j]ury instructions, whether published or not, are not themselves the law, and are not authority to establish legal propositions or precedent. [Citation].” (Ibid., see also People v. Morales (2001) 25 Cal.4th 34, 48, fn. 7; People v. Salcido (2007) 149 CA4th 356, 366.)
In the final analysis, “the trial court has both the duty and the discretion to control the conduct of the trial. [Citations.]” (People v. Harris (2005) 37 Cal.4th 310, 346.) Accordingly, the Judicial Council has no binding authority over the trial judge as to jury instructions. (See PC 1093(f) [judge may give jurors instruction which he or she “deem[s] necessary for their guidance …”].)
In sum, “the fact that pattern jury instructions are available should not preclude a judge from modifying or supplementing a pattern instruction to suit the particular needs of an individual case …. The thrust of such objection goes not to the use of pattern instructions themselves, but rather to the practice of rote reliance upon such instructions without modification, a practice that may develop simply by virtue of their existence …. [P]attern instructions should be modified or supplemented by the court when necessary to fit the particular facts of a case.” (American Bar Association, ABA Standards for Criminal Justice Discovery and Trial by Jury (ABA, 3rd ed., 1996) Standard 15-4.4 pp. 236-237.)
Finally, when reviewing any CALCRIM instruction one should be cognizant of the danger that CALCRIM’s commitment to “plain English” instructions may in some situations result in incomplete or inaccurate statements of the law. For example, the CALCRIM Committee is not adverse to unilaterally replacing statutory language with its own “juror friendly” interpretation of the language. (See, e.g., FORECITE F 1820.6 Inst 1; F 1821.5 Inst 2.) As one text has observed, “substituting a word of a statute just to make an instruction more juror-friendly maybe be going too far.” (Levenson & Ricciardulli, California Criminal Jury Instruction Handbook (West 2014-2015), § 7:3, Authors’ Notes, p. 434.)

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