THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 14 - CHAPTER 296
Go to Volume 14 Table of Contents  -  Go to Chapter 296 Table of Contents

296.1 Standards Of Review On Appeal

    296.1.1 Standard For Determining Whether Instruction Should Have Been Given
    296.1.2 Court Reviewing Denial Of Instruction Request Must Assume Jury Would Have Believed The Evidence Upon Which The Instruction Request Was Based
    296.1.3 De Novo Standard Of Review For Instructional Error
    296.1.4 "Reasonable Likelihood" Standard For Ambiguous Instruction

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 14 - CHAPTER 296

PRACTICE NOTE: Evidence Required To Trigger Court's Sua Sponte Duty To Instruct. (See NCJIC 3.2.4 [Evidence Required To Trigger Court's Duty To Instruct Sua Sponte: Substantial Evidence Requirement].)

Sufficiency Of Evidence To Require Requested Instruction. (See NCJIC 3.3.1 [Sufficiency Of Evidence To Require Requested Instruction].)

    See also NCJIC 250.1 [Grounds For Instruction On Defense Theory].

    See also NCJIC 250.2 [Evidentiary Requirements For Defense Theory Instruction].

See Capital Punishment Handbook [1.16 a. Standard Of Review: General Principles And Authorities].

See also generally, NCJIC 305.1.12 [Appeal].

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 14 - CHAPTER 296

APPELLATE PRACTICE NOTE: In evaluating a claim of instructional error, the reviewing court must assume the jury could have believed the evidence of the party claiming error, if it rose to the level of substantial evidence. (See Mock v. Michigan Millers Mutual Ins. Co. (CA 1992) 4 CA4th 306, 322 [5 CR2d 594]; Henderson v. Harnischfeger Corp. (CA 1974) 12 C3d 663, 673-74 [117 CR 1]; Clement v. State Reclamation Bd. (CA 1950) 35 C2d 628, 643-44 [220 P2d 897].) This is a very important principle for appellate lawyers. Often appellate opinions on instructional error claims incorrectly begin by a recitation of the facts in a light most favorable to the prosecution. Therefore, every appellate brief claiming instructional error should be citing cases such as Henderson when they provide the proper standard of appellate review of the issue in question.

    In other words, in reviewing instructional error on appeal, the facts are not construed in a manner most favorable to the verdict below. Rather, the reviewing court "must assume that the jury might have believed the evidence upon which the (cause of action or defense of) the losing party was predicated, and that if the correct instruction had been given upon that request the jury might have rendered a verdict in favor of the losing party." [Internal quotation marks and citations omitted.] (Clement v. State Reclamation Bd. (CA 1950) 35 C2d 628, 643-44 [220 P2d 897].)

See Capital Punishment Handbook [1.16 a. Standard Of Review: General Principles And Authorities].

See also generally, NCJIC 305.1.12 [Appeal].

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 14 - CHAPTER 296

APPELLATE PRACTICE NOTE: When a case involves instructional error, "the focus of review is on the court. Further, the standard is de novo. [Citation]." (People v. Ceja (CA 1993) 4 C4th 1134, 1148, fn 1 [17 CR2d 375], Mosk, dissenting; see also City v. Gypsum (10th Cir. 1996) 72 F3d 1491, 1496; U.S. v. Smith (10th Cir. 1995) 63 F3d 956, 965 ["We review jury instructions as a whole under the de novo standard"].) On the other hand, if the question concerns the validity of the conviction, i.e., whether the verdict rendered by the jury was supported by substantial evidence, the focus of review should be on the jury and the standard should be "highly deferential." (Ibid.; see also People v. Alvarez (CA 1996) 14 C4th 155, 217 [58 CR2d 385]; People v. Berryman (CA 1993) 6 C4th 1048, 1089 [25 CR2d 867].)

See Capital Punishment Handbook [1.16 a. Standard Of Review: General Principles And Authorities].

See also generally, NCJIC 305.1.12 [Appeal].

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 14 - CHAPTER 296

APPELLATE PRACTICE NOTE: In Estelle v. McGuire (1991) 502 US 62, 72 [112 SCt 475; 116 LEd2d 385] the Supreme Court clarified the standard of review to be utilized in determining whether an ambiguous jury instruction violates the federal constitution. The court specifically disapproved the standard set forth in Cage v. Louisiana (1990) 498 US 39 [111 SCt 328; 112 LEd2d 339] and Yates v. Evatt (1991) 500 US 391 [111 SCt 1884; 114 LEd2d 432], holding that in construing the instruction the court should consider how reasonable jurors could have understood the charge as a whole. Instead, the court embraced the standard set forth in Boyde v. California (1990) 494 US 370, 380 [110 SCt 1190; 108 LEd2d 316], which requires the reviewing court to inquire "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way" that violates the constitution. (See also Carriger v. Lewis (9th Cir. 1992) 971 F2d 329, 334; State v. Rothell (SC 1990) 391 SE2d 228, 229; Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS Introduction (B [The Process of Preparing and Submitting requested Instructions] (South Carolina CLE, 1994).)

    This standard does not require the defendant to establish that the jury was more likely than not to improperly apply the instruction. To show a "reasonable probability", it is not necessary to prove that the jury "more probably than not" relied on the improper instruction. (See People v. Howard (CA 1987) 190 CA3d 41, 48 [235 CR 223] [applying Strickland test]; see also Boyde v. California (1990) 494 US 370, 379-80 [110 SCt 1190; 108 LEd2d 316] [discussing Strickland test and the "reasonable likelihood" standard of review for jury instructions].) Hence, in statistical terms, a reasonable probability is a "significant" but something-less-than 50 percent likelihood. (Howard, 190 CA3d at 48.)

    In Wade v. Calderon (9th Cir. 1994) 29 F3d 1312, the 9th Circuit criticized the California Supreme Court's use of the "reasonable likelihood" standard in evaluating the failure to instruct upon an element of the special circumstance allegation. The 9th Circuit held that "Boyde does not sanction use of the 'reasonable likelihood' standard when the disputed instruction is erroneous on its face. Where a jury instruction omits a necessary element of a special circumstance, constitutional error has occurred. [Citation.] We are not free to assume that the jurors inferred the missing element from their general experience or from other instructions, for the law presumes that jurors carefully follow the instructions given to them." (Wade, 29 F3d at 1320-21.)

See also Capital Punishment Handbook [1.16 a. Standard Of Review: General Principles And Authorities].

See also Capital Punishment Handbook [3.5.5 a. Standard For Measuring Constitutionality Of Jury Instruction: General Principles And Authorities].

See also Capital Punishment Handbook [4.5.1 a. Ambiguous Or Vague Instructions: General Principles And Authorities].

See also generally, NCJIC 305.1.12 [Appeal].