CC 202 Erroneously Limits Jurors’ Ability To Request Readback Of Testimony December 16th, 2020
CC 202 instructs the jurors as follows: If there is a disagreement about the testimony [and stipulations] at trial, you may ask that the (court reporter’s record be read to/court’s recording be played for) you. This language is too limited because jurors should have the ability to request readback of testimony even if […]
Tags: CC 104 , CC 202 , CC 222 , Deliberations of Jury , Readback Issues , Sample Instructions
CC 330: “Should Consider” vs. “Consider” October 27th, 2020
CC 330 contains inconsistent admonitions to the jurors regarding consideration of factors potentially relating to the credibility of a child witness under 10 years old. Compare Paragraph 2: In evaluating the child’s testimony, you should consider all of the factors surrounding that testimony, including the child’s age and level of cognitive development. [Emphasis […]
Tags: CC 330 , Evidence and Witnesses , Jury Instruction Language , Sample Instructions
The Huge Impact of A Tiny Two-Letter Word October 15th, 2020
In this March 10, 2020 post FORECITE discussed the CALCRIM instructions which define great bodily injury as a “significant or substantial physical injury … that is greater than minor or moderate harm.” The post suggested, in reliance on People v. Medellin (2020) 45 Cal.App.5th 519, 533- 535 that — as argued by the prosecutor in […]
Tags: CC 1300 , CC 1402 , CC 1501 , CC 1530 , CC 1551 , CC 2501 , CC 2503 , CC 2514 , CC 2578 , CC 2720 , CC 2721 , CC 2745 , CC 2746 , CC 2747 , CC 3130 , CC 3145 , CC 3149 , CC 3150 , CC 3160 , CC 3161 , CC 3162 , CC 3163 , CC 3177 , CC 3477 , CC 505 , CC 508 , CC 511 , CC 524 , CC 525 , CC 571 , CC 580 , CC 581 , CC 582 , CC 590 , CC 592 , CC 604 , CC 810 , CC 820 , CC 860 , CC 862 , CC 863 , CC 875 , CC 970 , CC 982 , CC 983 , GBI , Sample Instructions
Felony Murder Special Circumstance: Knowledge Elements May Be Negated by Mental Impairment September 17th, 2020
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.) […]
Tags: CC 3428 , CC 540B , CC 540C , CC 703 , CC 730 , Felony Murder Special Circumstance , Mens Rea: Knowledge , Mental Impairment , Sample Instructions , Special Circumstances , Tison/Banks
Felony Murder Special Circumstance: Knowledge Elements May Be Negated by Intoxication September 12th, 2020
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.) […]
Tags: CC 3426 , CC 540B , CC 540C , CC 625 , CC 703 , CC 730 , Felony Murder , Mens Rea: Knowledge , Mental Impairment , Sample Instructions , Special Circumstances , Tison/Banks
Deficiencies in Defense Evidence Cannot Make up for Shortcomings in Prosecution’s Evidence August 13th, 2020
[Update of February 3rd, 2015 post] People v. Centeno (2014) 60 Cal. 4th 659 provides an important clarification of the presumption of innocence and the prosecution’s burden of proof: “…[D]eficiencies in the defense case [cannot] make up for shortcomings in [the prosecution’s case].” (Id., at 673.) For example, in People v. Brito (Sep. 19, 2019, […]
Tags: Appeal , Beyond A Reasonable Doubt , Burden Of Proof , CC 100 , CC 101 , CC 220 , Defense Theory Instructions , Lesser Included Offenses , Misstatement Of Law , Presumption of Innocence , Prosecutor Misconduct , Sample Instructions , Standard of Prejudice
Reviewing Court Reverses Conviction and Enhancement Due to CALCRIM’s Erroneous Definition of Great Bodily Injury — Over 40 CC Instructions Potentially Affected March 10th, 2020
People v. Medellin (2020) 45 Cal.App.5th 519, 533- 535 concluded that the CALCRIM definition of “great bodily harm” [GBI] in CC 875 and CC 3160 erroneously allowed the prosecutor to argue and the jury to find GBI based on either greater than minor harm or greater than moderate harm. This “alternate theory error” resulted in […]
Tags: CC 3160 , CC 875 , GBI , Sample Instructions
Extortion: Sample Instruction on Affirmative Defense of Litigation Privilege February 13th, 2020
In People v. Toledano DEPUBLISHED (2019) 36 Cal.App.5th 715 (G051787) a jury convicted Toledano of conspiracy to commit extortion and attempted extortion. The Court of Appeal reversed the judgment because the trial court prejudicially erred by not instructing the jury on Toledano’s affirmative defense that his actions were protected under the litigation privilege. The […]
Tags: CC 1830 , Conspiracy , Defense Theory Instructions , Extortion , Sample Instructions , Sua Sponte
How Should the Jury Be Instructed in a Death Penalty Case in Which the Defendant Asked for the Death Penalty? October 25th, 2019
In People v. Anderson (2018) 5 Cal.5th 372, 423 the defendant asked the jury at the punishment phase to give him the death penalty. The California Supreme Court held that the instruction set forth below “was sufficient to protect defendant from an unreliable verdict.” Sample Instruction: Each of you remains obligated to decide […]
Tags: CC 763 , Death Penalty , Sample Instructions
Should Jurors Be Cautioned Regarding Accomplice Testimony Which Is Neutral Or Exonerating? October 15th, 2019
In People v. Smith (2017) 12 Cal. App. 5th 766, 778-80 the judge instructed the jury per the standard CALCRIM instructions that accomplice testimony requires corroboration before the jury may accept it as true. The appellate Court criticized these instructions because they failed to explain that the supporting evidence requirements applies “only when [the accomplice] […]
Tags: CC 301 , CC 334 , CC 335 , Sample Instructions
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