F 3530 Judge’s Comment on the Evidence (PC 1127, 1093(f))

SERIES 3500 POST-TRIAL: CONCLUDING

F 3530 Judge‘s Comment On The Evidence (PC 1127, 1093(f))

TABLE OF CONTENTS
F 3530 Inst 1 Jurors Not To Take Judge’s Comments As Reflecting On Attorneys And Defendant
F 3530 Inst 2 No Duty To Reach Verdict
F 3530 Inst 3 Judge’s Comment On Evidence: Comments Are Advisory Only
F 3530 Inst 4 Jury Not To Consider Gestures By The Judge

F 3530 NOTES
F 3530 Note 1 Jury Not To Take Cue From The Judge: Judge Should Not Praise Prosecutor And/Or Prosecution Witnesses
F 3530 Note 2 Jury Not To Take Cue From The Judge: Judge Should Not Personally Attack Defense Attorney
F 3530 Note 3 Jury Not To Take Cue From The Judge: Reactions To Evidence Must Be Disregarded
F 3530 Note 4 Improper For Trial Judge To Direct Jury To Matters Adverse To The Defense In Guise Of “Comment On The Evidence”

Return to Series 3500 Table of Contents.

F 3530 Inst 1 Jurors Not To Take Judge’s Comments As Reflecting On Attorneys And Defendant

*Modify CC 3530, paragraph 1, as follows [added language is underlined]:

Do not take anything I said or did during the trial as an indication of what I think about the evidence, the witnesses, the attorneys, the defendant, or what your verdict should be.

Points and Authorities

See FORECITE F 104.1 Inst 6.

F 3530 Inst 2 No Duty To Reach Verdict

*Modify CC 3530, paragraph 3, sentence 2, as follows [added language is underlined]:

It is up to you and you alone to decide the issues in this case, if you can.

Points and Authorities

See FORECITE F 100.7 Inst 1.

F 3530 Inst 3 Judge’s Comment On Evidence: Comments Are Advisory Only

*Replace CC 3530 with CALJIC 17.32 (7th Edition).

*Replace CC 3530, paragraph 2, with:

Now I will comment on the evidence, but my comments are advisory only and are not in any way binding on you. It is not my role to decide any issue n the case for you.

Points and Authorities

CALCRIM 3530 is deficient because it fails to expressly state that the judge’s comments are advisory only. (Compare CALJIC 17.32.) Moreover, paragraph 2 of CC 3530 improperly implies that the jurors must reach a verdict. (See FORECITE F 100.7 Inst 1.)

Identification Of Parties—See FORECITE F 100.2 Note 1.

F 3530 Inst 4 Jury Not To Consider Gestures By The Judge

*Alternative first paragraph of CC 3530:

I have not intended by anything I have said or done, or by any questions that I may have asked, or by any ruling I may have made, or by any gestures I may have made, to intimate or suggest what you should find to be the facts, or that I believe or disbelieve any witness. If anything I have done or said or any gesture I have made has seemed to so indicate, you will disregard it and form your own conclusion.

Points & Authorities

CALCRIM 3530 is intended to inform the jury that it must not be influenced by any statements, actions or gestures by the trial court. (See People v. Franklin (1976) 56 CA3d 18, 24.) However, CC 3530 does not expressly refer to gestures by the trial judge. While the jury may infer that the instruction applies to gestures, “the demeanor of the trial judge, subtle as it may be, can affect the jury significantly.” (Shoretz, “Let The Record Show: Modifying Appellate Review Procedures For Errors of Prejudicial Non-Verbal Communication by Trial Judges“ (95) Columbia L. Rev. 1273, 1278. Hence, the alternative above should be used to assure that the jury understands that it must disregard gestures as well as actions and statements by the trial judge.

Identification Of Parties—See FORECITE F 100.2 Note 1.

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 6.11 [Fairness: Generally]
FORECITE CG 7.5 [Fair And Unbiased Jury]
FORECITE CG 10.3 [Comment, Argument Or Undue Emphasis]

In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

RESEARCH NOTES: See Annotation, gestures, facial expressions, or other nonverbal communication of trial judge in criminal case as ground for relief, 45 ALR5th 531 and Later Case Service; Annotation, gestures or facial expressions of trial judge in criminal case, indicating approval or disapproval, belief or disbelief, as ground for relief, 49 ALR3d 1186, supp. sec. 3.

CALJIC NOTE: See FORECITE F 17.30a.

F 3530 NOTES

F 3530 Note 1 Jury Not To Take Cue From The Judge: Judge Should Not Praise Prosecutor And/Or Prosecution Witnesses

The trial court may comment on the credibility of a witness only when such commentary is necessary for proper determination of the case and to assist the jury in reaching a fair verdict. (E.g., People v. Proctor (1992) 4 C4th 499, 542; People v. Rodriguez (1986) 42 C3d 730, 765-70.) When the trial judge praises a prosecution witness, extolling his honesty and good faith to the jury and praises the prosecutor for his good faith in moving for dismissal of the charges against a co-defendant, such comments do not assist the jurors in their determinations but are only intended to commend the officer and the prosecutor for fulfilling their duties. Such comments improperly throw the court’s judicial weight into the scales in favor of the prosecution. “Our courts have on many occasions pointed out the duty of a trial judge before a jury, both in criminal and civil cases, not to do anything which would lead the jury to believe that the judge was of the opinion that one party or the other should receive the verdict, nor to appear to throw his [or her] judicial weight on one side or the other. [Citations.] These cases reiterate the fact that jurors are eager to find, and quick to follow, any supposed hint of the judge as to how they should decide the case.“ (People v. Cole (1952) 113 CA2d 253, 261; see also, Witkin & Epstein, Cal. Criminal Law (2d Ed. 1989) Trial, §2893, p. 3535, and cases cited therein; People v. Frank (1925) 71 CA 575, 578-80 [trial judge erred in allowing his and the prosecutor’s praise of two prosecution witnesses as true patriots who had commendedly performed their civic duties as witnesses of high standing, placed on the record in a preliminary hearing, to be read to the jury at trial].)

CALJIC NOTE: See FORECITE F 17.30 n1.

F 3530 Note 2 Jury Not To Take Cue From The Judge: Judge Should Not Personally Attack Defense Attorney

Just as it is improper for the judge to improperly praise the prosecutor or the prosecution witnesses (see FORECITE F 17.30 n1), so too is it improper for the judge to advise the jury of negative personal views concerning the competence, honesty, or ethics of the attorneys in a trial. (See People v. Fatone (1985) 165 CA3d 1164, 1174.) Even if the prosecutor has correctly objected to conduct by the defendant’s attorney, that would not justify reprimanding defense counsel before the jury. “When the court embarks on a personal attack on an attorney, it is not the lawyer who pays the price, but the client.“ (Ibid. at 1175; but see People v. Chong (1999) 76 CA4th 232 [judge may reprimand attorney in presence of jury if necessary to “preserve the integrity of the judicial process“]; People v. Carpenter (1997) 15 C4th 312, 353 [court commits misconduct only “if it persistently makes discourteous and disparaging remarks to defense counsel so as to discredit the defense or create the impression [that the court] is allying itself with the prosecution“ ].)

If a judge makes hostile and disparaging comments or otherwise exhibits bias against the defense, counsel must object and seek a jury admonition concerning the behavior to preserve the issue for appeal. (See People v. Fudge (1994) 7 C4th 1075, 1108; People v. Wright (1990) 52 C3d 367, 411; People v. Snow (2003) 30 C4th 43, 78 [because counsel failed to object to, or seek a jury admonition regarding, any of the instances of alleged judicial intemperance, the issue is waived on appeal].)

CALJIC NOTE: See FORECITE F 17.30 n2.

F 3530 Note 3 Jury Not To Take Cue From The Judge: Reactions To Evidence Must Be Disregarded

See FORECITE F 104.1 Inst 6.

CALJIC NOTE: See FORECITE F 17.30 n3.

F 3530 Note 4 Improper For Trial Judge To Direct Jury To Matters Adverse To The Defense In Guise Of “Comment On The Evidence“

The trial judge cannot become an advocate in the guise of commenting on the evidence. (People v. Cummings (1993) 4 CA4th 1233, 1305.) The comments of the judge must be fair, objective and impartial. (People v. Moore (1974) 40 CA3d 56, 65.) As our Supreme Court has made clear, “a trial court that chooses to comment to the jury must be extremely careful to exercise its power ‘with wisdom and restraint and with a view to protecting the rights of the defendant.'” (People v. Cook (1983) 33 C3d 400, 408.) “[J]udicial comment should be temperate rather than argumentative and the trial court must avoid engaging in partisan advocacy.” (Id; see also People v. Wright (1988) 45 CA3d 1126, 1136.) Hence, the trial court “may not, in the guise of privilege, withdraw material evidence from the jury’s consideration, distort the record, expressly or impliedly direct a verdict, or otherwise usurp the jury’s ultimate fact finding power. [Citations.]” (People v. Rodriguez (1986) 42 CA3d 730, 766.) [See Brief Bank # B-799 for additional briefing on this issue.]

CALJIC NOTE: See FORECITE F 17.30 n4.