Tag Archives: Sample Instructions


Is Accomplice Testimony “Exonerating” When It Tends to Incriminate the Defendant of Lesser Offense?
June 18th, 2019

CC 334 instructs that accomplice testimony requires corroboration before the jury may accept it as true. However, the defense may want to consider requesting modification of CC 334 when the defendant’s statements serve to show his guilt of a lesser offense than the charged offense. (See e.g., sample below.) Statements which mitigate or lessen the […]


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Should Defendant’s Statements Which Show Guilt of Lesser Offense Be Viewed with Caution?
June 7th, 2019

In People v. Powell (2018) 6 Cal. 5th 136; 169 the defendant contended that the cautionary instruction regarding the defendant’s out of court oral admissions (CJ 2.71.7) “pertains only to statements harmful to the defense.” The CSC apparently agreed that the instruction does not apply to exculpatory statements: “[T]his instruction properly applies to ‘any extrajudicial […]


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Modification of CC 3472 to Reflect Escalation Doctrine
December 11th, 2018

CC 3472 provides as follows:   “A person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force.”   Under the “plain terms” of this instruction the use of “any amount of ‘force’ entirely preclude[s] [a defendant] from invoking […]


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CC 320 Should Be Limited When a Gang Associate’s Refusal to Testify Is Admitted for the Limited Purpose of Supporting Gang Expert Testimony
September 12th, 2018

CC 320, which applies to situations where a witness refuses to testify based on an invalid exercise of privilege, provides as follows: <Alternative B—Invalid Exercise of Privilege> [ <Insert name of witness> did not have the right to refuse to answer questions in this case. You may consider that refusal during your deliberations.] This instruction […]


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Juror’s “Common Sense and Experience” May Not Override Presumption of Innocence
August 22nd, 2018

CC 105 and CC 226 — which tell the jurors to rely on their “common sense and experience” regarding their consideration of evidence – have been approved in an appellate ruling. (See People v. Campos (2007) 156 Cal.App.4th 1228, 1239-1241; see also People v. Centeno (2014) 60 Cal.4th 659, 669 [“jurors may rely on common knowledge […]


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Dog Tracking Evidence: Limitations of CALCRIM 374
August 6th, 2018

CC 374 includes the following language:   Before you may rely on dog tracking evidence, there must be:   Evidence of the dog’s general reliability as a tracker; AND Other evidence that the dog accurately followed a trail that led to the person who committed the crime. This other evidence does not need to independently […]


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CC 2300 — Transportation of a Controlled Substance — Does Not Adequately Explain the Specific Intent Element of the Offense
March 6th, 2018

Effective January 1, 2014, Health and Safety Code section 11379 was amended to limit the meaning of “transports” under the statute to transportation “for sale.” The jury instruction for section 11379 offenses was modified to reflect the 2014 amendment to the statute by inserting the words “for sale” after the word “transported” — “To prove […]


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Confusing Language of CC 121 Regarding Foreign Language Recordings Should Be Clarified
April 28th, 2017

In August 2016 the CALCRIM committee revised CC 121 to provide as follows: You must rely on the transcript, even if you understand the language in the recording. Do not restranslate the recording for other jurors. If you believe the transcript is incorrect, let me know immediately by writing a note and giving it to […]


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Sample Instructions: Use Of The Term “Expert“ In Jury Instruction As Improper Comment On The Evidence
April 6th, 2017

In this prior post it was suggested that the term “expert” should not be used when referring to witnesses in the jury instructions. Below is a non-exhaustive list of sample instructions which eliminate the term “expert” from the instructions: F 332 Inst 7 (a-d) Deletion Of The Term “Expert” From Expert Witness Instruction *Modify CC […]


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CC 370 (Motive): Will Lay Jurors Understand the Subtle Difference Between Intent – Which Is an Element of the Charge – and Motive – Which Is Not?
March 14th, 2017

The CSC has suggested that lay jurors will readily understand the subtle distinction between intent – which is an element of many crimes – and motive – which is generally not an element …[A]lthough malice and certain intents and purposes are elements of the crimes, as the court correctly instructed the jury, motive is not […]


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