Tag Archives: Sample Instructions


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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Felony Murder Special Circumstances: Tison Factors — Jury Should Not Give Undue Weight to Factors Specifically Included CC 703
May 18th, 2021

In reliance on Banks and Clark, CC 703 identifies a number of specific factors for the jurors “may consider” in deciding the “reckless indifference” and “major participant” elements of the felony murder special circumstance.   As to reckless indifference CC 703 tells the jurors:   …Among the factors you may consider are: Did the [sic] […]


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Felony Murder Special Circumstance: CC 703 Improperly Invites Juror Speculation As to Factors Which Are Not Supported by Substantial Evidence
May 4th, 2021

In reliance on People v. Banks (2015) 61 Cal.4th 788, 803–808 and People v. Clark (2016) 63 Cal.4th 522, 614–620 CC 703 identifies a number of specific factors for the jurors “may consider” in deciding “reckless indifference” and “major participant” elements of the felony murder special circumstance.   As to reckless indifference CC 703 includes […]


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Felony Murder Special Circumstance: When Appropriate Tison/Banks Factors Should Include Defendant’s Absence During the Killing
April 20th, 2021

The cases have repeated explained that the defendant’s presence during the killing is an important factor to consider as to both the major participant and reckless indifference elements of culpability as to a defendant who did not kill and was not an actual killer.   In Tison, the high court stressed the importance of presence […]


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Felony Murder Special Circumstance: Instruction on Factually Inapplicable Factors May Mislead or Confuse the Jurors
April 13th, 2021

In People v. Banks (2015) 61 Cal.4th 788, 803–808  the court identified certain factors to guide the jury in its determination of whether the defendant was a major participant.   Similarly, People v. Clark (2016) 63 Cal.4th 522, 614–620 identified specific factors to guide the jury in its determination of whether the defendant acted with […]


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Felony Murder Special Circumstance: Reckless Indifference — Discrete Knowledge Elements Should Be Separately Enumerated
April 6th, 2021

PC 190.2 (d) provides that, “for the purposes of those special circumstances based on the enumerated felonies in paragraph (17) of subdivision (a), which include robbery and burglary, an aider and abettor must have been a “major participant” and have acted “with reckless indifference to human life…’.” (People v. Clark (2016) 63 Cal.4th 522, 609.) […]


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Felony Murder Special Circumstance: “Reckless Indifference” Should Be Defined
March 22nd, 2021

In reliance upon People v. Estrada (1995) 11 Cal.4th 568, 578 the CC states that the court does not have a sua sponte duty to define “reckless indifference to human life.”   Estrada concluded that there is no sua sponte duty as follows: We disagree and find that, when considered in its entirety — as […]


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