SERIES 3400 DEFENSES AND INSANITY
F 3400 Alibi
TABLE OF CONTENTS
F 3400.1 Titles And Identification Of Parties
F 3400.1 Inst 1 Alibi—Title
F 3400.1 Inst 2 Identification Of Prosecution And Defendant
F 3400.1 Inst 3 Delete The Term “Alibi” From Title Of Instruction
F 3400.2 Alibi—Tailoring To Facts: Persons, Places, Things And Theories
Modification When Existence Of Crime Is At Issue
F 3400.2 Inst 2 (a & b) Clarification Of Prosecution Burden
F 3400.2 Inst 3 Jurors Must Unanimously Reject Any Defenses Before Convicting
F 3400 NOTES
F 3400 Note 1 Alibi: Instruction As Sanction For Defendant’s Discovery Violation
Return to Series 3400 Table of Contents.
F 3400.1 Titles And Identification Of Parties
F 3400.1 Inst 1 Alibi—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 3400.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 3400.1 Inst 3 Delete The Term “Alibi” From Title Of Instruction
*Modify CC 3400 Title as follows:
Alibi Defense Theory Of Absence From Crime Scene
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
The Term “Alibi” As A Prejudicial Comment On The Evidence—See FORECITE F 416.3 Inst 4; see also United States v. Simon (3rd Cir. 1993) 995 F2d 1236, 1243 n 11; United States v. Robinson (6th Cir. 1979) 602 F2d 760, 762.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 5.4.1 [Instructions That Suggest An Opinion as To An Essential Fact, An Element Or Guilt]
FORECITE CG 5.4.2 [Argumentative Instructions Not Suggesting Opinion On Guilt]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 3400.2Alibi—Tailoring To Facts: Persons, Places, Things And Theories
F 3400.2 Inst 1 Modification When Existence Of Crime Is At Issue
*Modify CC 3400, paragraph 1, 2 and 3, as follows [added language is underlined]:
The defendant contends (he/she) did not commit (this/these) alleged crime(s) and that (he/she) was somewhere else when the alleged crime[s] (was/were) committed. The People must prove that the defendant was present and committed the alleged crime[s] with which (he/she) is charged. The defendant does not need to prove (he/she) was elsewhere at the time of the alleged crime.
If you have a reasonable doubt about whether the defendant was present when the alleged crime was committed, you must find (him/her) not guilty.
[However, the defendant may also be guilty of __________ <insert crime[s] charged> if (he/she) (aided and abetted/ [or] conspired with) someone else to commit (that/those) alleged crime[s]. If you conclude that the defendant (aided and abetted/ [or] conspired to commit) __________ <insert crime[s] charged>, then (he/she) is guilty even if (he/she) was not present when the alleged crime[s] (was/were) committed.]
Points and Authorities
See FORECITE F 103.2 Inst 2.
F 3400.2 Inst 2 (a & b) Clarification Of Prosecution Burden
*Modify CC 3400 paragraph 1, sentence 4, as follows [added language is underlined; deleted language is stricken]:
The defendant does not need to prove (he/she) was elsewhere at the time of the [alleged] crime or that (he/she) did not commit the crimes with which (he/she) is charged.
*Modify paragraph 3, sentence 2, as follows:
Alternative a:
If you conclude find beyond a reasonable doubt that the defendant (aided and abetted/ [or] conspired to commit) __________ <insert crime[s] charged>, then (he/she) is guilty even if (he/she) was not present when the crime[s] (was/were) committed.]
Alternative b:
If you conclude the prosecution has proven beyond a reasonable doubt that the defendant (aided and abetted/ [or] conspired to commit) ________ <insert crime[s] charged>, then (he/she) is guilty even if (he/she) was not present when the crime[s] (was/were) committed.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency—CALCRIM 3400 fails to clearly explain the prosecution’s duty to prove guilt beyond a reasonable doubt. (See FORECITE F 100.1 Inst 1; F 404.2 Inst 1.)
Defendant Has No Obligation To Prove Anything—See FORECITE F 100.1 Inst 1.
Prosecution Must Prove Guilt Beyond A Reasonable Doubt—See FORECITE F 404.2 Inst 1; F 103.2 Inst 1.
No Reference To “The People”—The defendant objects to use of the term “the People” in this instruction and throughout this trial. [See FORECITE F 100.2 Note 1; CALCRIM Motion Bank # CCM-006.]
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 3400.2 Inst 3 Jurors Must Unanimously Reject Any Defenses Before Convicting
See FORECITE F 3500.2 Inst 4.
F 3400 NOTES
F 3400 Note 1 Alibi: Instruction As Sanction For Defendant’s Discovery Violation
See FORECITE F 306 Note 1 and Note 2.
