Jury Instruction Lessons From The Peterson, Blake And Jackson Trials

by Thomas Lundy

(June 2005)

    For those who may have doubted the importance of jury instruction or the jurors’ willingness and ability to follow them, the recent trio of high profile trials – Scott Peterson, Robert Blake and Michael Jackson – is instructive . In Jackson, post-trial juror interviews revealed the jurors’ ability to heed instruction that precluded conviction based solely on alleged prior molestations. Thus, even though at least some of the jurors believed it likely that Jackson had molested other children, those jurors understood that this was not alone enough to convict and that the prosecution must prove the charged offenses beyond a reasonable doubt. As one juror put it, "we had to do what we were instructed to do." Similarly, in the Blake trial the jurors acquitted because the prosecution simply had not met the burden of proving guilt beyond a reasonable doubt.

    However, the burden of proof may not be so clearly understood by the jurors in a situation like the Scott Peterson trial where the defendant relies on a defense theory such as third party guilt or alibi. In such a case, the burden of proof still remains with the prosecution but the jurors may be inclined to shift the burden to the defense to establish the alibi or third party guilty theory.

    In this context, use of the phrase "raise a reasonable doubt" is highly misleading. The word "raise" implies that there is a burden or duty on the defense to produce a certain quantum of evidence. And this perspective tends to focus the jurors on the question of "who did it" not whether the prosecution has met its burden. For this reason it is troubling to read cases such as People v. Frazier (2005) 128 Cal.App.4th 807 which approved burden shifting terminology like the defendant "has the burden to raise a reasonable doubt about the facts underlying [his defense theory]." 

    The jurors should never be instructed on the defendant's burden of "going forward" with evidence since this is not material to the jurors' deliberations. (See People v. Cornett (1948) 33 Cal.2d 33, 42-44; People v. Deloney (1953) 41 Cal.2d 832, 840-42.) Telling jurors that the defendant has a "burden" to prove something poses the very real risk that they may misunderstand the burden of production to be one of persuasion, and thus mistakenly shift to him a greater burden than he may legally be compelled to carry. (See People v. Kelley (1980) 113 Cal.App.3d 1005, 1012-13.) Such an improper shifting of the burden violates the Due Process and Trial by Jury Clauses of the Sixth and Fourteenth Amendments to the federal constitution. (See In re Winship (1970) 397 U.S. 358 [25 L.Ed.2d 368; 90 S.Ct. 1068]; Carella v. California (1989) 491 U.S. 263, 265-66 [105 L.Ed.2d 218; 109 S.Ct. 2419].)

    If the court has determined that an instruction should be given, the issue of production has already been resolved and the jury need not consider it further. That aspect of "who bears the burden [of production]" has been disposed of by the court's ruling. (See generally Evidence Code § 402.) What the jury must determine is whether the evidence produced could leave the jury with a reasonable doubt. (See People v. Adrian (1982) 135 Cal.App.3d 335, 342.) Instructing the jury that they must acquit if they have a reasonable doubt on the issue properly allocates the burden without running the risks of misapplication outlined above. (See People v. Loggins (1972) 23 Cal.App.3d 597, 601-4 [former CALJIC 5.15 was erroneous insofar as it instructed the jury that "the burden is on the defendant to raise a reasonable doubt" regarding his self defense theory].)

    The wisdom of avoiding instruction on the defendant's burden of persuasion has been recognized by the Judicial Council's Blue Ribbon Committee on Jury Instructions which Justice Corrigan chairs. None of the Judicial Council instructions issued to date for review contain language as to the defendant's burden of persuasion. (Cf., People v. Nguyen DEPUBLISHED (2003) 111 Cal.App.4th 184 [incisive discussion of this principle by Justice Corrigan].)

    Hence, the "burden to raise" language should be replaced with an instruction such as:

A defense theory in this case is that a person other than the defendant committed the charged offense. However, the defense has no burden of proof as to this theory. The burden remains with the prosecution to prove beyond a reasonable doubt that it was the defendant, not another person, who committed the crime. Any juror who has a reasonable doubt that the defendant committed the crime must vote to acquit.

    In sum, Jackson, Peterson and Blake give us valuable insight into how cases like Frazier may unconstitutionally result in conviction in cases where the prosecution failed to prove guilt beyond a reasonable doubt. Hopefully, future decisions will criticize Frazier’s faulty conclusions and rule that the "raise a reasonable doubt" language is unconstitutional.

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