Tag Archives: Sample Instructions


Defendant’s Previous Conviction: Cautionary Instruction
July 12th, 2022

It is beyond dispute that it is improper and prejudicial to permit the jurors to consider the fact that the defendant was previously tried and convicted for the same allegations. For example, in People v. Kessler (1963) 221 Cal.App.2d 187, 191, the court concluded that the unnecessary calling and identifying of a probation officer as […]


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Substitution of Alternate Juror After Partial Verdict
July 5th, 2022

When an alternate juror is substituted during deliberations, CALCRIM 3575 should be given instructing the jurors to disregard the earlier deliberations. (See People v. Cain (1995) 10 C4th 1, 64-65.) However, a special problem is presented when the substitution occurs after a partial verdict has been rendered. In fact, it has been suggested that the […]


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DNA: Strmix® Probabilistic Genotyping Technology Satisfies The Kelly Standard (People v. Davis (2022) 75 Cal.App.5th 694)
May 25th, 2022

–STRmix® is generally accepted in the relevant scientific community   –Court could rely on validation witness with vested interest in the technology   –Proprietary software can achieve general acceptance without disclosure of source code –Technology with subjective component can be generally accepted   –STRmix® not vulnerable to Evidence Code § 352 objection   –Not an […]


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Corpus Delicti: Jurors Must Find Independent Evidence As to All Elements of the Charged Offense
February 10th, 2022

The corpus delicti rule requires “an instruction to the jury that no person may be convicted absent evidence of the crime independent of his or her out-of-court statements” and “allows the defendant, on appeal, directly to attack the sufficiency of the prosecution’s independent showing.”  (People v. Gonzalez ____C5th____, at ____ (Dec. 2, 2021, S163643) [pp. […]


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Transferred Self Defense
January 27th, 2022

The doctrine of transferred self-defense is available to insulate one from criminal responsibility where his or her act, justifiably in self-defense, inadvertently resulted in the injury of an innocent bystander. Under this doctrine, “just as one’s criminal intent follows the corresponding criminal act to its unintended consequences,” so too “one’s lack of criminal intent follows […]


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Questioning of Witness by Judge: Cautionary Instruction
January 20th, 2022

RATIONALE: When the judge asks questions of a witness, there is a danger that the jury will place undue emphasis or importance on the question or to the answer elicited, or consider that the question indicates the judge’s view of the evidence. Therefore, a cautionary instruction admonishing the jury not to attach special weight to […]


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Death Penalty Mitigation: Prosecutor’s Failure to Prove Other Violent Crimes or Felony Convictions Is a Mitigating Circumstance
October 15th, 2021

CC 763 instructs the jurors to consider, inter alia, the following factors in deciding whether to impose a death judgement: (b) Whether or not the defendant has engaged in violent criminal activity other than the crime[s] of which the defendant was convicted in this case. Violent criminal activity is criminal activity involving the unlawful use, […]


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Limitations on Selection of an Anonymous Jury and Access to Juror Names
September 24th, 2021

People v. Lopez (June 14, 2021, B305783) 65 Cal.App.5th 484 affirmed the rule allowing the selection of an anonymous jury but recognized important limitations on such a practice. First, while Code of Civil Procedure § 237 requires juror identifying information to be sealed after the jury returns its verdict, § 237 “does not authorize sealing of […]


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Limitations on Selection of an Anonymous Jury and Access to Juror Names
September 14th, 2021

People v. Lopez (June 14, 2021, B305783) 65 Cal.App.5th 484 affirmed the rule allowing the selection of an anonymous jury but recognized important limitations on such a practice. First, while Code of Civil Procedure § 237 requires juror identifying information to be sealed after the jury returns its verdict, § 237 “does not authorize sealing of […]


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Juror Anonymity: Jury Must Be Assured That Reasons for Anonymity Are NOT Related to Security
August 12th, 2021

The empanelment of an anonymous jury is allowed only where (1) there are strong grounds for concluding that it is necessary to ensure juror protection and (2) reasonable safeguards are adopted by the trial court to minimize any risk of infringement upon the fundamental rights of the accused. (People v. Thomas  (2012) 53 Cal.4th 771, […]


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