Chapter 6

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6.2 Examples Of Improper Jury Instruction Language Or Wording

    6.2.1 Instructions Must Not Be Argumentative
    6.2.2 Improper For Instructions To Assume As Facts Matters Which The Jury Must Decide
    6.2.3 Instruction On Reasonable Doubt As To Some Issues And Not Others
    6.2.4 Use Of The Term "Probable" Reduces Prosecution's Burden To Prove Guilt Beyond A Reasonable Doubt
    6.2.5 "Probability Of Truth" As Applied To Prosecution Witness Is Improper Instruction
    6.2.6 "Tending To Prove" Language Improperly Invades Province Of The Jury
    6.2.7 Improper To Include Alias In Referring To Defendant In Instructions
    6.2.8 Instructions Should Not Use Pejorative Language
    6.2.9 Hypotheticals Must Be Representative Of All Theories And Issues
    6.2.10 Improper To Use The Term “Victim” In Jury Instructions
    6.2.11 Improper To Refer To Prosecution As "The People"
    6.2.12 Defense Theory That Negates Element Should Not Be Referred To As A "Defense"
    6.2.13 Uncharged Acts: Avoiding The Term "Offense" Or "Crime"
    6.2.14 Defendant's Statement Should Not Be Characterized As An "Admission" Or "Confession"
    6.2.15 Deletion Of The Term “Expert” From Expert Witness Instruction
    6.2.16 Reference To The Identification As A "Choice" Of The Eyewitness Rather Than As An "Identification"
    6.2.17 Foreseeability: Improper To Use Terms Such As “Probable” Or “Likely”
    6.2.18 Constructive Possession: Use Of Phrase “Indirect Possession” To Avoid Juror Confusion
    6.2.19 The Term "Proximate" Is Unduly Confusing
    6.2.20 Avoiding Language That Burden Never "Shifts" To Defendant
    6.2.21 "Guilt Or Innocence" Comparison Undermines Presumption Of Innocence
    6.2.22 "If you find..." Language Improperly Shifts Burden To Defendant
    6.2.23 Error To Instruct Jury That “Absolute Certainty” Is Not Required
    6.2.24 Proof Beyond A Reasonable Doubt Requires More Than “Strong And Convincing Belief”
    6.2.25 Error To Characterize Reasonable Doubt As "Doubt For Which Some Good Reason Can Be Given
    6.2.26 Proof Beyond A Reasonable Doubt: Use Of The Term “Moral Evidence” Improper
    6.2.27 Consciousness Of Guilt: Instruction Language Should Not Pre-Judge The Issue By Characterizing The Evidence As Flight, Etc.
    6.2.28 Jury Instruction Language: Improper Use Of The Term "Prima Facie"

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6.2.1 Instructions Must Not Be Argumentative

PRACTICE NOTE: See Wharton’s Criminal Procedure (West, 13th ed. 1989) § 463; see also NCJIC 1.4.7 [Avoid Argumentative Instructions] and NCJIC 6.1.1 [The Prosecution Should Not Be Permitted To Obtain Instructions Which Comment On The Evidence].

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6.2.2 Improper For Instructions To Assume As Facts Matters Which The Jury Must Decide

PRACTICE NOTE: It is fundamental that the jury must pass on all questions of fact. Hence, instructions which assume as facts propositions which are controverted and which the jury has the duty to determine are erroneous. "An instruction should be so framed that the jury cannot construe the language at an assumption by the court that the defendant is guilty of the offense charged. It should 'avoid even the appearance of assuming as true certain facts that the jury themselves are required to pass on and determine adversely to the defendant before they can find him guilty.' [Citation.]" (See Cooper, Kentucky Instructions to Juries (1993 Ed.) § 1.09(A) [Role Of Jury In Assessing Evidence (A) In General].)

See also NCJIC 300.4.1 [Failure To Instruct Or Directed Verdict On Element Of Charge].

See also NCJIC 300.4.2 [Withdrawal Of Factual Issue May Constitute A Directed Verdict].

See also NCJIC 6.1.1 [The Prosecution Should Not Be Permitted To Obtain Instructions Which Comment On The Evidence].

See also NCJIC 6.2.10 [Improper To Use The Term "Victim" In Jury Instructions].

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6.2.3 Instruction On Reasonable Doubt As To Some Issues And Not Others

See NCJIC 270.4.9 [Instruction On Reasonable Doubt As To Some Issues And Not Others].

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6.2.4 Use Of The Term "Probable" Reduces Prosecution's Burden To Prove Guilt Beyond A Reasonable Doubt

See NCJIC 270.5.9 [Use Of The Term "Probable" Reduces Prosecution's Burden To Prove Guilt Beyond A Reasonable Doubt].

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6.2.5 "Probability Of Truth" As Applied To Prosecution Witness Is Improper Instruction

PRACTICE NOTE: Some standard pattern instructions use the term "probability of truth" in discussing the jury's evaluation of the credibility of witnesses. (See, e.g., CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 2.21.2 [Witness Wilfully False] (West, 6th Ed. 1996).) An instruction which tells the jury that crucial prosecution testimony may be accepted based on a "probability" standard is "somewhat suspect." (People v. Rivers (CA 1993) 20 CA4th 1040, 1046 [25 CR2d 602].) Although the court in Rivers did not hold that the giving of CALJIC 2.21.2 was prejudicial error, its "concerns" about use of the instruction where it affects the crucial testimony of a sole percipient witness provides a basis for modifying the instruction when appropriate. (See also State v. Queen (NJ 1988) 535 A2d 539, 543 ["probability" was not correct measure of credibility].)

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6.2.6 "Tending To Prove" Language Improperly Invades Province Of The Jury

PRACTICE NOTE: It is not uncommon for standard pattern instructions to state that the prosecution has presented evidence "tending to prove." (See e.g., first sentence of ¶ 10 of CALJIC (California) No.10.42.6 [Continuous Sexual Abuse Of A Child].) Such language invades the province of the jury as a comment on the weight of the evidence. (See e.g., People v. Owens (CA 1994) 27 CA4th 1155, 1158 [33 CR2d 354]; see also Cortez v. State (TX 1903) 74 SW 907, 908.)

See also NCJIC 1.4.7 [Avoid Argumentative Instructions].

See also NCJIC 6.1.1 [The Prosecution Should Not Be Permitted To Obtain Instructions Which Comment On The Evidence].

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6.2.7 Improper To Include Alias In Referring To Defendant In Instructions

See NCJIC 25.15 [Evidence That Suggests Defendant Was Previously Arrested Or Convicted].

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6.2.8 Instructions Should Not Use Pejorative Language

PRACTICE NOTE: Pejorative language such as "wicked and corrupt motive" should be excluded from jury instructions. (Hrones & Homans, MASSACHUSETTS JURY INSTRUCTIONS - CRIMINAL No. 5-1, comment. p. 5-9 [Malice] (Lexis, 2nd ed. 2000) Other examples of pejorative language are, "depraved heart" and "alibi." (See e.g., MISSISSIPPI MODEL JURY INSTRUCTIONS - CRIMINAL, MJI-Criminal 8:5 [Homicide-Murder-Killing While Committing Dangerous Act Without Premeditation] ["depraved heart" murder] (West, 2000).)

See NCJIC 251.2.1.1 [Improper To Use The Term "Alibi"].

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6.2.9 Hypotheticals Must Be Representative Of All Theories And Issues

PRACTICE NOTE: If examples or hypotheticals are used in instructions, it is essential that the examples are representative of all theories or issues which the evidence presents. For example, in U.S. v. Montanez (1st Cir. 1996) 105 F3d 36 the entrapment instruction was reversible error because it contained examples which only involved abstractions or coercion by the police. By omitting examples of inducement by undue appeal to sympathy, the jury may have been left "with the mistaken impression that coercion is a necessary element of entrapment and...." (Montanez, 105 F3d at 39; see also People v. Williams (NY 1996) 652 NYS2d 447, 448 [hypothetical example are permissible but must be fair and unbiased and not indicate to the jury that the court has an opinion concerning the guilt or innocence of the defendant].)

See NCJIC 5.2.10 [Improper To Use Facts Of Reported Cases To Illustrate Jury Instructions].

See also NCJIC 300.12 [Unbalanced Instructions].

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6.2.10 Improper To Use The Term "Victim" In Jury Instructions

RATIONALE: Use of the term "victim" in a jury instruction may improperly suggest to the jury that a crime was committed. Hence, when there is an issue such as self defense or consent, use of the term "victim" may be an improper comment on the evidence.

POINTS AND AUTHORITIES: "Defendant should object to the use of [the term 'victim'], as opposed to the use of a term like 'complainant' or of the name of the complainant in the instructions to the jury. The basis of the objection is that the term `victim' suggests guilt and is an impermissible charge on the facts." (Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS II(C)(7) (South Carolina CLE, 1994), instructions on criminal sexual conduct, p. 140); see also MONTANA CRIMINAL JURY INSTRUCTIONS, MCJI 5-203(1)(a) [Issues In Intimidation] (State Bar of Montana, 1990); NORTH CAROLINA PATTERN JURY INSTRUCTIONS - CRIMINAL, NCPI-Crim 100.20 [Instructions To Be Given At Jury Selection] (TRCC, 1999); PENNSYLVANIA SUGGESTED STANDARD CRIMINAL JURY INSTRUCTIONS, Pa. SSJI (crim) 8.311B [Consent-A Defense] (Pennsylvania Bar Institute, PBI Press, 04/74); SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 3-3-19 [Sex Offenses-Child Under Age Of 16 Not Accomplice] (State Bar of South Dakota, 1996).)

Another alternative would be to replace the term "victim" with "alleged victim." (See Sample Instruction # 1, below.)

See NCJIC 5.2.13 [Including Victim's Name In Pattern Instruction].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 3.2; 2.5; 5.4].

SAMPLE INSTRUCTION # 1:

It is not necessary to prove that the alleged victim was actually frightened, and neither is it necessary to show that the behavior of the defendant was so violent that it was likely to cause terror, panic, or hysteria.

[Source: 5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 2.79 [Bank Robbery] (2001).]

SAMPLE INSTRUCTION # 2:

The alleged victim of this offense is _______________ (name of alleged victim).

[Source: NCJIC.]

SAMPLE INSTRUCTION # 3:

It is not necessary to prove that _________________ (insert name of alleged victim) was actually frightened, and neither is it necessary to show that the behavior of the defendant was so violent that it was likely to cause terror, panic, or hysteria.

[See 5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 2.79 [Bank Robbery] (2001).]

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6.2.11 Improper To Refer To Prosecution As "The People"

RATIONALE: In jurisdictions which refer to the prosecution as "The People" the jury may be subtly encouraged to align itself with the prosecution and against the defendant.

POINTS AND AUTHORITIES: Referring to the prosecution as "The People" violates a criminal defendant's state and federal substantive and procedural due process rights as well as the right to fair trial by jury. (U.S. Const., 5th, 6th and 14th Amendments.) Whether a substantive due process right exists and has been violated requires the court to "...[e]xamine our Nation's history, legal traditions and practices." (Washington v. Gulcksberg (1997) 521 US 702, 721 [117 SCt 2258; 138 LEd2d 772].) Both our Nation's history and legal practices indicate that referring to the prosecution as "The People" violates substantive due process rights. The vast majority of jurisdictions in the United States recognize the constitutionally correct way for a jurisdiction's legal system to refer to its prosecution is not as "The People." Of all the state and federal jurisdictions, only California, Colorado, Illinois, Michigan and New York refer to the prosecution as "The People."

Calling the prosecution "The People" blurs and confuses critical distinctions. It is the prosecution's duty, on behalf of the executive branch of government, to litigate against criminal defendants. It is the jury's duty, as representatives of the people of a defendant's community, to listen impartially to the evidence presented by the prosecution and then decide guilt. (See e.g., J.E.B. v. Alabama (1994) 511 US 127, 131 [114 SCt 1419; 128 LEd2d 89], Powers v. Ohio (1991) 499 US 400, 404 [111 SCt 1364; 113 LEd2d 411] and Batson v. Kentucky (1986) 476 US 79, 84-86 [106 SCt 1712; 90 LEd2d 69] [establishing protections to ensure juries are not selected based on impermissible exclusionary practices].) In California, both groups purportedly represent "The People" of the state -- the jurors actually, and the prosecution putatively through its title in criminal cases. Thus, confusion necessarily reigns when all are referred to as "the People."

All, that is, except the defendant. While California's custom unconstitutionally aligns groups of people who have vastly different tasks to perform in the criminal justice system, it simultaneously excludes the defendant. The caption in every California criminal case reads "The People of the State of California versus The Defendant." This dichotomy is reinforced in every criminal case when, inter alia, the jury is instructed with CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 1.00 [Respective Duties Of Judge And Jury] (West, 6th Ed. 1996) ["Both the People and a defendant have a right to expect that you will conscientiously consider and weigh the evidence . . . "] and CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 17.40 [Jurors’ Duties-Individual Opinion Required–Duty To Deliberate] (West, 6th Ed. 1996) ["The People and the defendant are entitled to the individual opinion of each juror"].)

In other words, there are "The People," and then there is "the defendant." While the message is subtle, these oppositional phrases necessarily imply to jurors that defendants are somehow "other than" people. And, even more ironically and importantly, while the dichotomy suggests "the Defendant" is not one of "The People," the dichotomy expressly states the government is.

This distinction in the language that juries hear over and over again in court is critical. From the beginning of the proceedings and consistently throughout trial, pitting "The People" against "the Defendant" literally suggests to a criminal defendant's jury that the defendant is something (at worst) or someone (at best) other than the rest of us. To the extent this dichotomy suggests criminal defendants are something other than people, this clearly violates due process. To the extent this dichotomy suggests criminal defendants are someone other than the people, this violates the defendant's right to trial by jury of his or her peers.

Additionally, reference to "The People" as the plaintiff improperly tends to align the jury with the prosecution and against the defendant. "[I]t is not entirely correct to say that the People are the real complainants...it is perhaps better to say that the People are the 'arbiters, umpires, the judges -- to see the accused gets a fair and impartial trial.'" (People v. Schools (IL 1948) 78 NE2d 245, 247; see also People v. Brown (MI 1972) 204 NW2d 72, 75 [error to suggest to jury that "in presenting the charge the prosecution was acting for the entire citizenry, including the jurors..."].)

In sum, California's reference to the prosecution as "The People" versus "the Defendant" violates both the letter and spirit of the due process and trial by jury clauses of the federal (5th, 6th and 14th Amendments) Constitutions. The phrase "The People" impermissibly aligns two separate bodies with different functions -- the prosecution and the jury -- at the same time the phrase "versus the Defendant" excludes the defendant from the community of his peers who form his jury.

Moreover, the juxtaposition of the defendant and the People creates an overly advantageous position for the prosecution. This lack of balance between the prosecution and the defense violates the due process clause of the federal constitution. (See, e.g., Wardius v. Oregon (1973) 412 US 470, 480 [93 SCt 2208; 37 LEd2d 82].)

SAMPLE INSTRUCTION:

Both the prosecution and defendant[s] have a right to expect that you will conscientiously consider and weigh the evidence, apply the law, and reach a just verdict regardless of the consequences.

[Source: NCJIC]

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6.2.12 Defense Theory That Negates Element Should Not Be Referred To As A "Defense"

See NCJIC 250.4.3 [Defense Theory That Negates An Element Should Not Be Referred To As A "Defense"].

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6.2.13 Uncharged Acts: Avoiding The Term "Offense" Or "Crime"

See NCJIC 26.5.1.1 [Uncharged Acts: Avoiding The Term "Offense" Or "Crime"].

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6.2.14 Defendant's Statement Should Not Be Characterized As An "Admission" Or "Confession"

See NCJIC 28.8 [Defendant's Statement Should Not Be Characterized As An "Admission" Or "Confession"].

RESEARCH NOTES:

See generally, NCJIC 305.3.9 [Confessions/Admissions].

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6.2.15 Deletion Of The Term "Expert" From Expert Witness Instruction

See NCJIC 29.2.2 [Deletion Of The Term "Expert" From Expert Witness Instruction].

RESEARCH NOTES:

See generally, NCJIC 305.5.8 [Expert Testimony/Scientific Evidence].

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6.2.16 Reference To The Identification As A "Choice" Of The Eyewitness Rather Than As An "Identification"

PRACTICE NOTE: Use of the term "identification" with reference to the selection of the defendant by an eyewitness constitutes an improper comment on the evidence. (See generally, NCJIC 6.1.1 [The Prosecution Should Not Be Permitted To Obtain Instructions Which Comment On The Evidence].) This is so because the term "identification" implies that the selection is accurate. (See e.g., NCJIC 6.2.10 [Improper To Use The Term "Victim" In Jury Instructions]; see also NCJIC 6.2.14 [Defendant's Statement Should Not Be Characterized As An "Admission" Or "Confession"]; see also NCJIC 34.2.11 [Consciousness Of Guilt: Instruction Language Should Not Prejudge The Issue By Characterizing The Evidence, Flight, Etc.].) The same should apply to the instructions themselves.

Hence, counsel should pay close attention to the language used regarding the eyewitness identification process. Counsel should always be careful to use words like opinion or belief in discussing eyewitness identification. (Loftus & Doyle, Eyewitness Testimony - Civil & Criminal (Lexis, 3rd ed. 1997) § 8-12, p. 196.) Furthermore, counsel should always refer to the identification as a "choice" of the witness rather than an "identification." (Ibid.)

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6.2.17 Foreseeability: Improper To Use Terms Such As "Probable" Or "Likely"

PRACTICE NOTE: "There is a problem in using terms such as ‘probable’ or ‘likely’ in relation to manslaughter by excessive speed or drunk driving. It appears that many persons drive over the speed limit without killing or maiming anyone; if ‘probable’ or ‘likely’ implies more than a fifty percent chance of an event happening, a death caused by speed or alcohol is not probable or likely....It is because of the severity of the harm risked that law treats the intentional conduct of speeding or drunk driving as the crime of involuntary manslaughter when death is a consequence. But this severe penalty should be imposed only when death does in fact fall within the risk foreseeably created. Foreseeability is to be determined by what a reasonable person would foresee as a reasonable probability within the risk of the conduct engaged in." (U.S. v. Main (9th Cir. 1997) 113 F3d 1046, 1049 [criticizing 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 8.24d].)

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6.2.18 Constructive Possession: Use Of Phrase "Indirect Possession" To Avoid Juror Confusion

See NCJIC 56.1.9 [Constructive Possession: Use Of Phrase "Indirect Possession" To Avoid Juror Confusion].

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6.2.19 The Term "Proximate" Is Unduly Confusing

RATIONALE: The term "proximate" is a legal term of art which may be confusing to the jury if included in the definition of causation.

POINTS AND AUTHORITIES: The term "proximate cause" simply means "direct cause" and, therefore, use of the term "proximate cause" in jury instructions "should be avoided if possible." (Joseph & LaMonica, LOUISIANA CIVIL LAW TREATISE CRIMINAL JURY INSTRUCTIONS 10.14 [Vehicular Homicide-Alcohol Intoxication-1.0 Or Greater] (West, 1994).)

In People v. Roberts (CA 1992) 2 C4th 271, 313 [6 CR2d 276], the California Supreme Court suggested that the standard pattern instruction in California - which defined proximate cause - may be subject to challenge under Mitchell v. Gonzales (CA 1991) 54 C3d 1041, 1048-54 [1 CR2d 913]; see also Busta v. Columbus Hospital Corporation (MT 1996) 916 P2d 122, 140 ["We further recommend that terms such as "proximate cause" or "legal cause" and "reasonable foreseeability," which have some significance to lawyers and judges, not be allowed to confuse jurors by the inclusion of those terms in jury instructions"].) In Roberts the court observed that "the civil instruction's infirmity is equally great in criminal cases." However, the court found no error in Roberts because the record contained no evidence establishing a "possibly supervening cause of ... death." (Roberts 2 C4th at 313.)