EXAMPLES OF HOW YOU CAN GAIN A WINNING EDGE BY REFUSING TO PLAY THE "JURY INSTRUCTION BY NUMBER GAME"

(June, 1998)

Note: All references to "FORECITE" refer to FORECITE California, authored by Thomas Lundy and available from James Publishing. Go to: http://jamespublishing.com/books/fc.htm

    It is a common misconception that standard pattern instructions are the beginning and end of jury instruction practice. In fact, it is not uncommon for both parties and the judge to simply rely on "jury instructions by number." The prosecutor submits the prosecution’s list of numbers, the defense submits its choices and the judge decides which numbers to give. "The proliferation of pattern instructions has lulled many judges and lawyers into a sense of complacency, pre-instruction discussions degenerating into an exercise of checking off numbers on a list." (Pike and Fischer’s BNA Criminal Practice Manual, Sec. 131.101.) However, if the defense buys into this process the defendant may be missing an important opportunity to gain a winning edge which could produce a favorable verdict.

    "[T]he pattern instructions are not sacrosanct, a fact that has been borne out by the appellate rejection of pattern instructions, as well as appellate recognition of the fact that a legally "correct" instruction can change its stripes when applied to a given case. Although not greeted with open arms in many courtrooms, opportunity awaits the attorney who specially crafts instructions for his case or who proposes modifications in existing instructions to tailor them and remove misleading or offending materials." (Pike and Fischer’s BNA Criminal Practice Manual, supra, Sec. 131.101.)

Indeed, just in the realm of non-pattern defenses examples abound. This article will discuss some of these non-pattern defenses to illustrate the importance of not relying on jury instruction by number.

    First, however, it should be noted that certain techniques will assist in convincing the judge to go beyond the standard pattern instructions.

    First and foremost the judge should be "educated" as to the true role of the standard pattern instructions.

"[T]he so-called [standard pattern instructions] stereotyped instructions are no more sacrosanct than any others. Unless a particular instruction fits the evidentiary situation and presents a fair and impartial picture of the issues, it should not be given." (People v. Mata (CA 1955) 133 Cal.App.2d 18, 21 [283 P2d 372].) "Although the [standard] pattern instructions perform an invaluable service to the bench and bar, that those instructions are not sacrosanct is apparent from their treatment by the appellate courts." (People v. Vargas (CA 1988) 204 Cal.App.3d 1455, 1464 [251 Cal.Rptr. 904]; see also People v. Eckstrom (CA 1974) 43 Cal.App.3d 996, 1006 [118 Cal.Rptr. 391].) "...[T]he trial court is not obligated ... to repeat the words chosen by the [standard pattern instructions] committee however helpful they may be. Instead, the trial court's obligation is to state the law correctly." (People v. Runnion (CA 1994) 30 Cal.App.4th 852, 858 [36 Cal.Rptr.2d 203]; see also People v. Alvarez (CA 1996) 14 Cal.4th 155, 217 [58 Cal.Rptr.2d 385] ["[the standard pattern instruction] is not itself the law. Like other pattern instructions, it is merely an attempt at a statement thereof"].)

    Accordingly, judges, prosecutors and defense attorneys should "understand both [the] value of [standard pattern instruction] recommendations, and their limitations." [Emphasis added.] (Id. at 841.) "‘[Standard instructions] are not a substitute for the individual research and drafting that may be required in a particular case, nor are they intended to discourage judges from using their own forms and techniques for instructing jurys.’ [Citation to9th Cir. Man. of Model Instr., Introduction]." (McDowell v. Calderon (9th Cir. 1997) 130 Fed.3d 833, 841.)

    Second, it is essential to persuade the judge as to the applicability of the non-pattern instruction. It is not enough to merely submit an instruction or a case citation. You must explain how the instruction is a correct statement of law and why the pattern instructions fail to accurately or fully convey that law to the jury.

    Now for a few examples of how this works with non-standard pattern instruction defenses.

*To be added as a supplement to the standard pattern instruction:

    The defendant's honest belief, even if mistakenly held, that [he] [she] had a right or claim to the property taken negates the felonious intent necessary to convict [him] [her] of [robbery] [burglary] [or] theft.

    The defendant need not show the claim of right was reasonable. An unreasonable belief that [he] [she] had a legal right to take the property will suffice so long as the claim was made in good faith.

    If the evidence raises a reasonable doubt as to whether defendant acted under a bona-fide belief in a right or claim to the property you must find that defendant did not form the necessary felonious intent.

Points and Authorities

    Although the claim of right defense was limited in People v. Barnett (CA 1998) 17 C4th 1044 [74 CR2d 121] it is still be available as a defense to theft, robbery and burglary. In People v. Butler(67) 65 C2d 569, 573 [55 CR 511], the court held that "a bona-fide belief, even though mistakenly held, that one has a right or claim to the property negates felonious intent" and precludes a finding of robbery or theft. (See also People v. Hendricks (CA 1988) 44 C3d 635, 642 [244 CR 181]; People v. Gates (CA 1987) 43 C3d 1168, 1182 [240 CR 666]; People v. Navarro (CA 1979) 99 CA3d Supp 1, 3 [160 CR 692].) So long as the claim is made in good faith, it need not be objectively reasonable and it may be based upon either a mistake of fact or a mistake of law. (People v. Romo (CA 1990) 220 CA3d 514, 518 [269 CR 440]; Witkin and Epstein, Calif. Crim. Law § 586.)

    As with other defenses founded upon a factual contention which, if established, would tend to overcome or negate proof of an element of the charged offense such as identity, alibi, unconsciousness or self-defense the jury should be instructed that the defendant need only raise a reasonable doubt as to mistake of fact. (See California Evidence Code § 502;People v. Simon (CA 1995) 9 C4th 493, 500-01 [37 CR2d 278] [as to defense theories, the trial court is required to instruct on who has the burden and the nature of that burden]; see also, People v. Wright (CA 1988) 45 C3d 1126, 1136-37 [248 CR 600] [approving the standard pattern instructions -- which require acquittal if there is a reasonable doubt as to the defense]; People v. Tewksbury (CA 1976) 15 C3d 953, 963-64, fn 9 [127 CR 135].)

    Failure to adequately instruct upon a defense or defense theory implicates the defendant's federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process.]

*Add to the standard pattern instruction:

    One who has received threats against [his] [her] life or person made by another is justified in acting more quickly and taking harsher measures for [his] [her] own protection in the event of assault either actual or threatened, than would be a person who had not received such threats.

    If in this case you believe that __________ [insert name of deceased or assault victim] made prior threats against the defendant and that the defendant, because of such threats, had reasonable cause to fear greater peril in the event of an altercation with __________ [insert name of deceased or assault victim], you are to consider such facts in determining whether the defendant acted as a reasonable person in protecting [his] [her] own life or bodily safety.

Points and Authorities

    Under California law, one who has received threats against his life or person by another is justified in acting more quickly and taking harsher measures for his own protection in the event of assault, whether actual or threatened, than would a person who had not received such threats. (People v. Moore (CA 1954) 43 C2d 517, 528 [275 P2d 485]; People v. Gonzales (CA 1992) 8 CA4th 1658, 1664 [11 CR2d 267]; People v. Bush (CA1978) 84 CA3d 294, 302-04 [148 CR 430].) When the assault is by a party other than the one who made the antecedent threats, the instruction must be modified requiring the jury to find that the defendant "in fact believed" the assault and threats were made by the same person. People v. Pena (CA 1984) 151 CA3d 462, 475 [198 CR 819] held that the erroneous failure to instruct on antecedent threats is "presumed prejudicial." [Additional briefing regarding the prejudicial impact of the failure to instruct on antecedent threats is available from FORECITE.]

    Failure to adequately instruct upon a defense or defense theory implicates the defendant's federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process.

    Failure To Give Antecedent Threat Instruction Is Reversible Error. In People v. Jelks UNPUBLISHED (CA, A053527) and People v. Tafoya UNPUBLISHED (CA, 3/30/95, B080123), the Court of Appeal reversed for failure to give FORECITE's antecedent threat instruction. [A copy of these opinions are available from FORECITE; see also, People v. Parish UNPUBLISHED (CA, 7/18/95, A064582) [reversing for failure to give requested antecedent threat instruction and holding that the other instructions did not adequately cover the relevance of the antecedent threats to the claim of self-defense.] [A copy of the opinion and brief in People v. Parish is available from FORECITE.]

    Failure To Request Antecedent Threat Instruction Is IAC.The 5th District Court of Appeal has held that it is ineffective assistance of counsel not to request an antecedent threat instruction in the appropriate case. (People v. Marshall UNPUBLISHED (CA, 12/16/92, F016198.) [A copy of the Marshall Opinion may be obtained from FORECITE.]

    You have heard evidence that a person other than the defendant may have committed the offense with which the defendant is charged. The defendant is not required to prove the other person's guilt beyond a reasonable doubt. Defendant is entitled to an acquittal if the evidence raises a reasonable doubt in your minds as to the defendant's guilt. Such evidence may by itself raise a reasonable doubt as to the defendant's guilt. However, its weight and significance, if any, are matters for your determination. If after consideration of this evidence, you have a reasonable doubt that the defendant committed this offense, you must give the defendant the benefit of the doubt and find [him][her] not guilty.

Points and Authorities

    It is well established that the defendant may rely upon the theory that a third party committed the charged offense. (People v. Edelbacher (CA 1989) 47 C3d 983, 1017 [254 CR 586]; People v. Hall (CA 1986) 41 C3d 826, 833 [226 CR 112].) In so doing, the defendant's third-party evidence need not show "‘substantial proof of a probability’ that the third person committed the act; it need only be capable of raising a reasonable doubt of defendant’s guilt." (Hall, supra, at p. 833; see also People v. Madison (CA 1935) 3 C2d 668, 677 [46 P2d 159] [prosecution must present evidence that no other person committed the crime charged].) "Testimony that a third party was the robber ... has a direct tendency to exonerate a criminal defendant by raising a reasonable doubt as to his guilt." (Barner v. Leeds REV GTD (CA, 7/22/98, S070377) 62 CA4th 1240 [73 CR2d 296].) It is well settled that the defense has a right to pinpoint instructions upon the theory of the defense and upon the applicability of the burden of proof to that theory. (People v. Saille (CA 1991) 54 C3d 1103, 1120 [2 CR2d 364]; People v. Wright (CA 1988) 45 C3d 1126, 1136-37 [248 CR 600]; see also, People v. Marshall (CA 1996) 13 C4th 799, 831-32 [55 CR2d 347] [recognizing the need for further instruction as to burden of proof]; People v. Simon (CA 1995) 9 C4th 493, 500-01 [37 CR2d 278] [as to defense theories, the trial court is required to instruct on who has the burden and the nature of that burden]; People v. Adrian (CA1982) 135 CA3d 335, 342 [185 CR 506]; California Evidence Code § 502; FORECITE [PG III(A)&(D)].) Further, the prosecution's burden logically permits the jury to rely entirely upon a single defense theory to find a reasonable doubt as to guilt. (See CALJIC (California) 2.40.)

    Therefore, when evidence of third-party culpability has been presented, the defense has a right to an instruction upon third-party culpability such as the one set forth above. The failure to provide such an instruction would implicate the defendant's federal constitutional rights to compulsory process, trial by jury and due process (6th and 14th Amendments), because if the jury is not correctly instructed on third party culpability there is a danger that the jury will conclude that the third party's actual culpability must be proved by the defendant. Therefore, because the standard jury instructions may lead a reasonable juror to believe the defendant has the burden of proof on the third party issue -- presumably measured by the "beyond a reasonable doubt" standard -- further instruction is necessary.

    The above are just a few examples of non-standard pattern instruction defenses upon which FORECITE subscribers have successfully relied to obtain more favorable verdicts for their clients. There are countless other non-standard pattern instruction defenses as well; e.g., claim of right, duress to negate criminal intent, antecedent threats, equitable estoppel, defense of former jeopardy, collateral estoppel, etc. And, of course, there are many other areas in which non-standard pattern instructions can also give you a winning edge such as cautionary and limiting instructions, preliminary instructions, juror unanimity, juror deliberations, elements of offenses, lesser included offenses, lesser related offenses, etc. From this it is apparent that "jury instruction by number" is a process which normally favors the prosecution. Defense attorneys should reject this prosecution-oriented process and make jury instructions a full adversarial battleground.

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