Keeping The Adversarial Process Alive Under CALCRIM: Different Committee — Same Challenge

by Thomas Lundy

    By promulgating the new CALCRIM jury instructions the Judicial Council has attempted to usher in a new era of jury instruction jurisprudence in California. However, while there is lots about CALCRIM that is new, the challenges and opportunities for criminal defense practitioners will be much the same as they were under CALJIC. This column will offer ideas and strategies for responding to these challenges and opportunities.

    There are crucial differences between CALCRIM and CALJIC in terms of substance and perceived stature. For example, the CALCRIM Committee totally jettisoned CALJIC and produced a set of instructions that substantially differs from CALJIC in content and approach.

    Thus, much of the existing appellate authority regarding CALJIC instructions will become obsolete and new litigation will be required to resolve the myriad of issues which will inevitably emanate from CALCRIM. But even more important than these substantive changes is CALCRIM’s apparent goal of preempting the jury instruction process to an even greater degree than did CALJIC.

    When CALJIC was extant the court rules recommended that CALJIC be used but also stated that no preference should be given to non-CALJIC instructions. (Calif. Rules of Court, Div. 1, § 5.) The CALCRIM instructions have been anointed as California’s "official" jury instructions and their use is "strongly encouraged." (Rule 855(e).) Moreover, the "approved instructions" are considered to be presumptively correct. (Rule 229(d) [no citation to authority is needed when requesting an "approved instruction"].)

    The Rules of Court do anticipate that "special jury instructions" may be requested. (Rule 229(a)(1)(B).) However, the putative superiority of the "approved instructions" [CALCRIM] over any "special instructions" is maintained by Rule 855 which provides:

Use of the Judicial Council instructions is strongly encouraged. If the latest edition of the jury instructions approved by the Judicial Council contains an instruction applicable to a case and the trial judge determines that the jury should be instructed on the subject, it is recommended that the judge use the Judicial Council instruction unless he or she finds that a different instruction would more accurately state the law and be understood by jurors.

    Furthermore, because countless judges and attorneys participated in the "vetting" of CALCRIM, and because the Judicial Council has promoted CALCRIM as the savior of California’s jury system, there will undoubtedly be a perception that CALCRIM is beyond reproach.

    Despite CALCRIM’s role in "the Judicial Council’s historic efforts to reform the California jury system" (Chief Justice Ronald George, Judicial Council "News Release" #46, August 22, 2005), the underlying premise of the CALCRIM instructions is the same as CALJIC’s:

In every criminal case the trial judge should instruct the jury with standardized "cookie-cutter"instructions which have been promulgated by an ad hoc administrative committee.

    Thus, the fundamental challenge facing criminal defense attorneys under CALCRIM will be essentially the same as it was under CALJIC: Convincing the trial judge that he or she has both the power and duty to go beyond the standard "cookie cutter" instructions.

    As was the case with CALJIC, judges are likely to be heavily biased in favor of CALCRIM. And the various Judicial Council rules and pronouncements lauding CALCRIM may well increase judicial resistance to non-standardized instructions. Therefore, it will be up to the defense bar to keep the adversarial process alive in the jury instruction arena. As usual, early preparation and a coherent, well-thought-out defense strategy will be keys to getting non-pattern instructions accepted. But, most importantly, counsel will have to "educate" judges about their power and duty to give non-CALCRIM instructions.

    The CALCRIM committee was charged with the task of converting court approved legal terminology into "plain, straight forward language." (See Judicial Council "News Release" #46, August 22, 2005.) The "News Release" further explained:

A sample comparison of the old and new instructions demonstrates the new approach:

Old: "Innocent misrecollection is not uncommon." [CALJIC 2.21.1]

New: "People sometimes honestly forget things or make mistakes about what they remember." (Press Release #46.)

    Of course, the "New" language is certainly plainer and more straight forward. But does it accurately convey the legal terminology it is interpreting? The answer is a resounding "NO."

    The term "sometimes" [i.e."occasionally," "at times" or "now and then"(Roget’s New Millennium Thesaurus, First Edition, 2005)] does not convey the same meaning as "not uncommon." For example, one could accurately say that it "sometimes" snows in San Francisco but to say that snow is "not uncommon" in San Francisco wouldn’t fit.

    Moreover, the above CALCRIM actually replaced two sentences in CALJIC 2.21.1: the sentence quoted in the news release and the prior one which provides: "Failure of recollection is common." It is beyond dispute that saying "people sometimes . . . forget" conveys a much different meaning than saying that "people commonly . . . forget."

One need look no further than the news release for CALCRIM’s sister publication, CACI, (Judicial Council News Release #42, August 22, 2005.) to verify the CALCRIM defect:

A sample comparison of the old and new instructions demonstrates the new approach:

Old": "Failure of recollection is common. Innocent misrecollection is not uncommon."

New: "People often forget things or make mistakes in what they remember."

    Thus, CACI corroborates the fact that CALCRIM’s use of the term "sometimes" does not accurately convey the language it replaced. This, example of the CALCRIM’s fallibility should alert judges as to the need to closely scrutinize any legal terminology which CALCRIM has "translated" into "plain English" to assure that the meaning has not been changed.[Footnote1]. (See also Section D(5) below [CALCRIM is not sacrosanct].)

    As a purely administrative body, the Judicial Council has no binding authority over the trial judge as to jury instructions. As readily acknowledged in Rule 855(b), a judge’s instructional powers and duties come from the legislature and appellate courts, not the Judicial Council. (See California Rules of Court, Rule 855(b)) ["The articulation and interpretation of California law . . . remains within the purview of the Legislature and the courts of review."].)

    The judge’s instructional authority also resides in the Due Process and Jury Trial Clauses of the federal constitution (Sixth and Fourteenth Amendments) which should trump a mere recommendation from an administrative body:

    A jury cannot fulfill its central role in our criminal justice system if it does not follow the law. It is not an unguided missile free according to its own muse to do as it pleases. To accomplish its constitutionally—mandated purpose, a jury must be properly instructed as to the relevant law and as to its function in the fact-finding process, and it must assiduously follow these instructions. (McDowell v. Calderon (9th Cir. 1997) 130 F.3d 833, 836.)

    In the final analysis, "the trial court has both the duty and the discretion to control the conduct of the trial. [Citations.]" (People v. Harris (2005) 37 Cal.4th 310, 346.) Accordingly, the Judicial Council has no binding authority over the trial judge as to jury instructions. (See People v. Thompkins (1987) 195 Cal.App.3d 244, 250 [the primary function of the judge in a jury trial is to explain the applicable legal principles in such a way as to focus and define the factual issues which the jury must resolve]; see also Penal Code § 1093(f) [judge may give jurors instruction which he or she "deem[s] necessary for their guidance . . ."].) Rather, the judge’s instructional powers and duties come from the legislature, the appellate courts, and the above referenced inherent duty to "control the conduct of the trial." (See McDowell v. Calderon (9th Cir. 1997) 130 F.3d 833, 841 [standard jury instructions are "not blessed with any special precedential or binding authority"]; People v. Thompkins, supra, 195 Cal.App.3d at 250 [rote recitation of general form instructions will not always suffice to fulfill the court’s instructional obligations]; California Rules of Court, Rule 855(b)) ["The articulation and interpretation of California law . . . remains within the purview of the Legislature and the courts of review."].)

    Through usage and custom, standard pattern instructions often are cited as legal authority. However, this is a mischaracterization. "Jury instructions are only judge-made attempts to recast the words of statutes and the elements of crimes into words in terms comprehensible to the lay person. The texts of standard jury instructions are not debated and hammered out by legislators, but by ad hoc committees of lawyers and judges. Jury instructions do not come down from any mountain or rise up from any sea. Their precise wording, although extremely useful, is not blessed with any special precedential or binding authority. This description does not denigrate their value, it simply places them in the niche where they belong." (McDowell v. Calderon (9th Cir. 1997) 130 F.3d 833, 841; see also People v. Thompkins, supra, 195 Cal.App.3d at 250.)

    In other words, the fact that the CALCRIM instructions are recommended by the Judicial Council does not makethem "sacrosanct." The CALJIC instructions were recommended with similar language yet the reviewing courts consistently admonished against giving them undue deference. As explained by the California Supreme Court:

Though we cite CALJIC No. 12.00 for reference purposes, we caution that jury instructions, whether published or not, are not themselves the law, and are not authority to establish legal propositions or precedent. They should not be cited as authority for legal principles in appellate opinions. At most, when they are accurate, as the quoted portion was here, they restate the law." (People v. Morales (2001) 25 Cal.4th 34, 48 fn 7; see also People v. Alvarez (1996) 14 Cal.4th 155, 217 ["CALJIC 1.00 is not itself the law. Like other pattern instructions, it is merely an attempt at a statement thereof "].)

    In sum, the trial judge retains the discretion and duty to consider and use non-CALCRIM instructions. "The fact that the [CALCRIM] instructions are available should not preclude a judge from modifying or supplementing a [CALCRIM] instruction to suit the particular needs of an individual case. . . ." (American Bar Association Standards for Criminal Justice, Discovery and Trial By Jury (3rd Ed. 1996) Standard 15-4.4.)

    Rule 855(e) states as follows:

[Use of instructions] Use of the Judicial Council instructions is strongly encouraged. If the latest edition of the jury instructions approved by the Judicial Council contains an instruction applicable to a case and the trial judge determines that thejury should be instructed on the subject, it is recommended that the judge use the Judicial Council instruction unless he or she finds that a different instruction would more accurately state the law and be understood by jurors. [Emphasis added.]

    Hence, in the view of this rule, the propriety of a non-CALCRIM instruction depends on its ability to "more accurately state the law. . . ." However, this erroneously assumes that the only role of jury instructions is to "state the law." In reality, jury instructions do much more.

    Cautionary, Limiting Or Explanatory Instructions. Many instructions assist the jurors in performing their duties by providing cautionary, limiting or explanatory guidance. As to such instructions, the issue is not as much whether they accurately state the law but how efficacious they are in accomplishing their purpose. (See e.g., People v. Danks (2004) 32 Cal.4th 269 [even though telling jury not to speak with anyone accurately stated stated the law, the California Supreme Court recommends more specific instructions on the matter]; People v. Bolton (1979) 23 Cal.3d 208, 215-16 [California Supreme Court recommendsinstruction to fully "counteract" prosecutorial misconduct]; People v. Duran (1976) 16 Cal.3d 282, 292 [shackling instruction must not imply defendant is a security risk].)

    Thus, when a party seeks an instruction which revises or replaces a CALCRIM cautionary, limiting or explanatory instruction, the inquiry should focus on whether the requested instruction better accomplishes instructional purposes, not whether it more accurately states the law.

    Theory Of The Case Instructions. Another type of jury instruction which does more than simply state the law is one which seeks to explain a party’s theory of the case. The propriety of such instructions depends primarily on their ability to properly explain the party’s theory of the case and to relate the theory to the standard of proof.

    "A defendant is entitled, on request, to a nonargumentative instruction that direct attention to the defense theory of the case and relates it to the state’s burden of proof." (CC 220, Related Issues; see also CC 1150, Bench Notes ["If necessary for the jury’s understanding of the case, the court must instruct sua sponte on a defense theory in evidence. . ."]; People v. Gurule (2002) 28 Cal.4th 557, 660 ["criminal defendant has the right to instructions that pinpoint the theory of the defense case"]; People v. Feld (1906) 149 Cal. 464 ["Each party has an absolute right to instruction on its own theory of case if there is any evidence to support it"] U.S. v. Pierre (9th Cir. 2001) 254 F3d872 [right to defense theory instruction relating defense to burden of proof].)

    Such an instruction may "‘direct attention to evidence from ... which a reasonable doubt could be engendered.’ [Citation]." (People v. Hall (1980) 28 Cal.3d 143, 159; People v. Simon (1995) 9 Cal.4th 493, 500-01 [as to defense theories, the trial court is required to instruct on who has the burden and the nature of that burden]; People v. Sears (1970) 2 Cal.3d 180, 190.)

    Thus, even though a defense theory instruction may not state the law any more accurately than the general instructions defining the offense, the defense theory instruction should still be given. (See e.g., People v. Wright (1988) 45 Cal.3d 1126 [eyewitness]; People v. Kane (1946) 27 Cal.2d 693, 700 ["It is true that the instruction given stated the law correctly; but it was brief, general, and colorless in comparison with the instruction asked for, and had the effect of minimizing the importance of a consideration which could not have been stated with too much emphasis"]; see also U.S. v. Zuniga (9th Cir. 1993) 989 F.2d 1109 [alibi].)

    In sum, Rule 855 should not be read to require the defendant to establish that a theory of the case instruction "more accurately states the law" than any given CALCRIM instruction. Instead, the propriety of the instruction should turn on whether it is more efficacious than the CALCRIM instructions in relating the defense theory to the prosecution’s burden of proof.

    Rule 229(a)(1)(B), California Rules of Court, specifically provides for the presentation of non-CALCRIM instructions. It defines such instructions as follows:

"Special jury instructions," meaning instructions from other sources, those specially prepared by the party, or approved instructions that have been substantially modified by the party. Such non-CALCRIM instructions must be supported by "citation of authorities." (Rule 229(d).)

    Rule 855(e) gives the judge discretion to use non-CALCRIM instructions which are more accurate than the CALCRIM instructions or would be "better understood by the jurors."Morever, the rule also anticipates the giving of a non-CALCRIM instruction when there is non-CALCRIM instruction on the subject.

    Rule 855(e) also authorizes the modification of an existing CALCRIM to address a matter not specifically addressed by CALCRIM. Hence, the Court Rules anticipate that the CALCRIM instructions may be "substantially modified." (See also Rule 229(a)(1)(B).) Thus, for example CALCRIM 3400 [Alibi] could be modified into a pinpoint instruction on athird party guilt defense theory since CALCRIM has no third party guilt instruction.

    CALCRIM is a fundamental departure from CALJIC. The CALCRIM Committee took "a very different approach to the drafting of instructions [than did CALJIC]." (CALCRIM Preface, page 2.) In fact, the CALCRIM User Guide states: "The CALJIC and CALCRIM instructions should never be used together." [Emphasis in original.] Therefore, the vast body of appellate law interpreting CALJIC will not likely apply to CALCRIM. This means that CALCRIM will provide a steady source of new unresolved appellate issues for years to come. The identification and preservation of these issues is another challenge and opportunity for the criminal defense practitioner in this new era of jury instruction advocacy.

    Effective advocacy requires a single-minded focus on the best interests of one’s client. The CALCRIM Committee, by definition, cannot fulfill this role because the committee’s interests are necessarily diverse and its decisions are typically "the result of compromise," a necessary outgrowth of committee dynamics. (Revised Arizona Jury Instructions (Criminal) RAJI p. iii. [Important Notice] (CLE State Bar of Arizona, 1996).)

    Therefore, a defense practitioner cannot reliably use only CALCRIM instructions any more than he or she can reliably use the district attorney’s instructions. It is up to the individual attorney to provide the focused advocacy for his or her client. Such a focus cannot be provided by any set of standard instructions.

    With a few exceptions, where the law is in conflict, CALCRIM does not include dissenting viewpoints. Yet a committee decision one way or the other does not necessarily make the dissenting view wrong. For example, the Committee rejected a suggestion that the prosecution not be referred to as "The People." This does not mean that the dissenting argument has no merit, it simply means that at least eight of the fifteen committee members voted in favor of using "The People."

    Hence, such dissenting view points should be considered as a basis for non-CALCRIM instruction requests. (See generally Revised Arizona Jury Instructions (Criminal) RAJI p. iii. [Important Notice] (CLE State Bar of Arizona, 1996).)

    The CALCRIM User’s Guide states:

The CALJIC and CALCRIM instructions should never be used together. While the legal principles are obviously the same, the organization of concepts is approached differently. Trying to mix the two sets of instructions into a unified whole cannot be done and may result in omissions or confusion that could severely compromise clarity and accuracy. [Emphasis in original.]

    This blanket prohibition against the use of any CALJIC and CALCRIM instructions together is illogical. There is no reason why selected CALJIC instructions on discrete issues cannot be substituted for, or added to, a CALCRIM instruction. For example, if the judge concluded that the CALJIC instruction on good character (CALJIC 2.40) should be given instead of the CALCRIM instruction (CALCRIM 350), the substitution could be seamlessly made without impacting any of the other instructions. Nor would the content of the good character instruction be substantially different since both instructions address the same issue with similar and, in some cases, identical language.

    Moreover, even if the CALJIC ban was logical, the CALCRIM Committee simply does not have the authority to ban any particular instruction or set of instructions. The ultimate authority over jury instructions resides with the legislature, reviewing courts and trial judge, not the CALCRIM Committee. (See above.)

    For the reasons stated above, CALCRIM threatens to remove jury instructions from the adversarial arena by discouraging the bench and bar from challenging the CALCRIM instructions. The media hype and Judicial Council endorsement of CALCRIM coupled with the heavy workloads of both the bench and the bar will no doubt tempt counsel to heavily rely on CALCRIM. More than ever we are likely to see "pre-instruction discussions degenerating into an exercise of checking numbers off a list." (BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) § 131.101.)

    Hence, in this new era of jury instruction advocacy the need for criminal practitioners to look beyond the pattern instructions is more important than ever. "Counsel should closely review standard jury instructions before they are given and aggressively move to supplement such instructions to preserve the accused’s right to propound his or her theory of defense." (McSorley, Portable Guide to Federal Conspiracy Law — Developing Strategies for Criminal and Civil Cases (ABA, 1996) p. 185.) "The value of defense-prepared and defense-submitted jury instructions should not be underestimated. Failing to aggressively to investigate and pursue theory of defense instructions simply cedes the playing field to the government and may forfeit valuable appellate rights by not preserving the record. ... Examples abound where persistent defense counsel, by aggressively pursuing theory of defense instructions, have saved the day either in obtaining a favorable verdict or by setting the stage for an appeal that overturned the conviction." (Id. at 188.)

1. The difference between telling the jurors that witnesses forget and/or make mistakes "sometimes"versus "often"or "commonly" can have a devastating impact in criminal trials. For example, in eyewitness identification cases – which are notorious for generating wrongful conviction – mistaken identification is often the primary defense theory. To tell the jurors that people "sometimes" make mistakes in what they remember is much different than saying that such mistake are made "often." Sometimes means "occasionally," "at times" or "now and then." (Roget’s New Millennium Thesaurus, First Edition, 2005.) This gives the witness a false aura of credibility by implying that more often then not witnesses will not forget. This, combined with CALCRIM’s omission of any specific instruction on mistaken eyewitness identification (see CALCRIM 315, Related Issues), unjustifiably "loads the deck" in favor of the eyewitness and reduces the reliability of any eyewitness-based convictions under CALCRIM.

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