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  VOLUME 14 - CHAPTER 297
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297.5 Role Of Counsel's Argument To The Jury In Reviewing Instructional Error

    297.5.1 Argument of Counsel Cannot Substitute for Instruction
    297.5.2 Jury Not Constrained By Theories Advanced By Counsel
    297.5.3 Counsel For Opposing Parties Should Not Be Permitted To Argue Differing Views Of The Law

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  VOLUME 14 - CHAPTER 297

APPELLATE PRACTICE NOTE: "With distrust for lawyers, especially defense lawyers, at an all-time high, we must be cautious not to put too much faith in our own words. This is where the jury instructions come in, and why they play such an important part of the defense case." (Reiff, Drunk Driving and Related Vehicular Offenses (Lexis, 1999) § 17-1, p. 262.)

    "While jurors have come to disregard and discount the words of the lawyers, most jurors still hold the judge in high regard, and often hang on each word spoken, each gesture made and the like." (Ibid.; see also FORECITE National™ 297.1.2 [Jurors Presumed To Follow Instructions Rather Than Argument Of Counsel].)

    "[A] judge, above the partisan wrestling, wearing a robe and equipped with all the trappings of office, is a source for which the jurors can be expected to feel an exaggerated respect. [Footnote omitted.] Thus, given a choice between the lawyer's version of the law and the judge's, the jurors are likely to follow the judge's; given a choice between two lawyers' versions, they are likely to follow the one with which the judge agrees. [Footnote omitted.]" (Loftus & Doyle, Eyewitness Testimony - Civil & Criminal (Lexis, 3d ed. 1997) section 12.01, p. 327-328.)

    It has been suggested that when instructions are "not crucially erroneous, deficient, or misleading on their face ... it seems appropriate to evaluate the remarks of both counsel to determine whether the jury received adequate information." (People v. Brown (CA 1988) 45 C3d 1247, 1256 [248 CR 817]; see also Buchanan v. Angelone (1998) 522 US 269, 277 [118 SCt 757; 139 LEd2d 702] [relying on argument of counsel to "buttress" the conclusion that the jury was not precluded from considering mitigating evidence].) On the other hand, when there is clear instructional error the courts have emphasized that arguments of counsel cannot substitute for instructions by the court. (See e.g., Carter v. Kentucky (1981) 450 US 288, 304 [101 SCt 1112; 67 LEd2d 241] "[A]rguments of counsel cannot substitute for instructions by the Court"]; People v. Crawford (CA 1997) 58 CA4th 815, 824 [68 CR2d 546]; People v. Phillips (CA 1997) 59 CA4th 952, 956 [69 CR2d 532]; People v. Mathews (CA 1994) 25 CA4th 89, 99 [30 CR2d 330] ["[I]nstruction by the trial court would weigh more than a thousand words from the most eloquent defense counsel"]; People v. Elguera (CA 1992) 8 CA4th 1214, 1222-23 [10 CR2d 910] [omission of an instruction on the prosecution's burden to prove guilt beyond a reasonable doubt is not cured by the argument of counsel]; People v. Reynolds (CA 1988) 205 CA3d 776, 781 [252 CR 637] [reliance on CALJIC 1.00 and CALJICJ 1.03 (CALIFORNIA JURY INSTRUCTIONS - CRIMINAL (West, 6th Ed. 1996)) re: law is given by the court not counsel]; People v. Vann (CA 1974) 12 C3d 220, 226-27 [115 CR 352]; Parker v. Atchison, T & S.F.R. Co. (CA 1968) 263 CA2d 675, 680 [70 CR 8] ["arguments of counsel are not a substitute for instructions by the court"]; Ovalle v. State (TX 2000) 13 SW3d 774 [argument of prosecutor did not cure error in failing to inform capital sentencing jury to consider sentencing phase evidence].)

    The argument of defense counsel is especially ineffective as a cure for instructional error because defense counsel does not enjoy the respect accorded the judge and prosecuting attorney. (See People v. Edelbacher (CA 1989) 47 C3d 983, 1039-40 [254 CR 586] [the court noted that the prosecutor did not adopt or endorse defense counsel's argument but instead criticized it as inaccurate].)

    Other cases in accord include:

    Goodwin v. Balkcom (11th Cir. 1982) 684 F2d 794, 803, fn 8: "Any suggestion that counsel's argument can perfect an otherwise faulty jury charge is totally erroneous. Arguments of counsel can never substitute for the instructions given by the Court"; see also U.S. v. Ruiz (11th Cir. 1995) 59 F3d 1151, 1154 [court rejected as "disingenuous" prosecution’s argument that defense theory was adequately presented by closing argument of counsel; jury deliberations are guided by the court’s instructions not counsel’s arguments].

    United States v. Bernard (9th Cir. 1980) 625 F2d 854, 857: "The Government's theory that the summation arguments of defendant's counsel adequately admonished the jury ... is unpersuasive. A jury's response to instructions from the judge is, and should be, quite different from its response to arguments from counsel. Counsel's argument is neither law nor evidence, and the jury is so instructed."

    United States v. Heyman (4th Cir. 1977) 562 F2d 316, 318: "The testimony of witnesses and the argument of counsel could not render the [instructional] error harmless."

    United States v. Wolfson (5th Cir. 1978) 573 F2d 216, 221: A reviewing court must "look to the words of the trial court, not defense counsel, in determining if jury instructions are adequate. The burden of giving proper instructions is on the judge ... and it is his words, not the lawyer's, which carry an authority bordering on the irrefutable."

    Wade v. Calderon (9th Cir. 1994) 29 F3d 1312, 1321: ["In general a prosecutor's argument carries less weight than a jury instruction because: ¶ The former are usually billed in advance to the jury as matters of argument, not evidence, and are likely viewed as the statements of advocates; the latter, we have often recognized, are viewed as definitive and binding statements of the law." [Citation to Boyde v. California (1990) 494 US 370, 384 [110 SCt 1190; 108 LEd2d 316].

    Soule v. General Motors Corp. (CA 1994) 8 C4th 548, 586 [34 CR2d 607] Arabian, J., concurring and dissenting: "Counsel's argument was merely that -- argument -- unless and until a ratifying instruction from the trial court dignified it with the force of law. As the United States Supreme Court has well observed, 'It is obvious that under any system of jury trials, the influence of the trial judge on the jury is necessarily and properly of great weight, and that his lightest word or intimation is received with deference, and may prove controlling.' [Citations.] The omission of a critical charge may, of course, prove to be just as instrumental to the outcome." [Emphasis in original].

    People v. Miller (CA 1996) 46 CA4th 412, 423 fn 4 [53 CR2d 773]: "While we have no trouble utilizing the argument of counsel to help clear up ambiguities in instructions given, there is no authority which permits us to use argument as a substitute for instructions that should have been given. Logically, this is so, because the jury is informed that there are three components to the trial--evidence presented by both sides, arguments by the attorneys and instructions on the law given by the judge. Jurors are told that their decision must be based on the facts and the law and if counsel says anything that conflicts with the instructions that are given by the judge, they must follow the instructions." [Emphasis in original.]

    [NF] Payton v. Woodford (8/2/02, 9th Cir. No. 00-99003) 299 F3d 815 : Reasonable jurors were not likely to rely on the prosecutor’s statements instead of the instructions from the court.

    The U.S. Supreme Court has considered the arguments of counsel in trying to determine how the jury interpreted conflicting or confusing instructions.  (See e.g., Penry v. Johnson (2001) 532 US 782 [121 SCt 1910, 1923; 150 LEd2d 9].)  However, the high court has never said that the arguments of counsel could be an adequate substitute for statements of the law by the court.  (See Penry, 121 SCt at 1923 [noting that Boyde v. California (1990) 494 US 370, 384 [110 SCt 1190; 108 LEd2d 316] is to the contrary].)

    See also FORECITE National™ 284.1.4 [Readback Of Testimony: Presence Of Judge].

    See also FORECITE National™ 300.27.1 [Effective Assistance Of Counsel: Trial].

    See also FORECITE National™ 25.4.10 [Presence Of Judge At Jury View].

Argument of Counsel Does Not Cure Instructional Error, Poulos, 27 U.S.D. L.Rev. 523, pp. 627-669 (1990).

For an in-depth analysis concluding that arguments should not be used to cure instructional errors, see Poulos, John W. "The Lucas Court And The Penalty Phase Of The Capital Trial," 27 San Diego L. Rev. 521, 627-69 (1990). 

See also Manual On Recurring Problems In Criminal Trials [21d. Verdict: Inconsistent Verdict].

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

See also generally, FORECITE National™ 305.1.12 [Appeal].

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  VOLUME 14 - CHAPTER 297

APPELLATE PRACTICE NOTE: Arguments of counsel cannot alone demonstrate whether or not the jury relied on a particular theory which was presented by the evidence. This is so because "'[t]he jury should not be constrained by the fact that the prosecution and defense have chosen to focus on certain theories.' [Citation]." (People v. Barton (CA 1995) 12 C4th 186, 203 [47 CR2d 569]; see also FORECITE National™ 297.2.18 [Prejudice On Appeal: Jury May Accept Some Portions Of A Witness' Testimony And Reject Other Portions].)

    For example, in People v. Webster (CA 1991) 54 C3d 411, 442 [285 CR 31], the prosecution's argument relied solely upon a theory of robbery based on the defendant's taking of the victim's car. On appeal, the defendant argued that the car was not taken from the "immediate presence" of the victim because the force and fear occurred after the parties had walked a substantial distance from the car. The court concluded that the evidence provided two additional theories of robbery based on the separate taking of the car key from the victim. Despite the lack of any prosecution argument on these theories (Webster, 54 C3d at 442, fn 16), the court determined that the jury "could" have relied upon either of them. (Id. at 442.) Thus, regardless of which theories are argued by the prosecutor, People v. Green (CA 1980) 27 C3d 1, 69-70 [164 CR 1] and People v. Guiton (CA 1993) 4 C4th 1116, 1121-22 [17 CR2d 365] require the reviewing court to examine the validity of "all...theories before the jury." (Webster, 54 C3d at 442-43, fn 16 [emphasis by Webster Court]; see also People v. Guerra (CA 1985) 40 C3d 377, 387-88 [220 CR 374] [even had the prosecutor "expressly discounted" the felony-murder theory "[t]here is no principled way for us to determine which theory the jury adopted...."]; Suniga v. Bunnell (9th Cir. 1993) 998 F2d 664, 670 [instruction on erroneous theory was reversible even though the theory was not argued by the prosecutor and the evidence as to the correct theory was "very strong."]

    In sum, the mere fact that the prosecutor did not argue the erroneous theory should not be sufficient to establish that "no juror relied upon the erroneous instruction...." (People v. Smith (CA 1984) 35 C3d 798, 809 [201 CR 311]; see also Cabana v. Bullock (1986) 474 US 376, 383, fn 2 [106 SCt 689; 88 LEd2d 704]; Stromberg v. California (1931) 283 US 359, 369-70 [51 SCt 532; 75 LEd2d 1117].)

See Manual On Recurring Problems In Criminal Trials [21d. Verdict: Inconsistent Verdict].

See also generally, FORECITE National™ 305.1.12 [Appeal].

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  VOLUME 14 - CHAPTER 297

APPELLATE PRACTICE NOTE: It is inappropriate for the trial court to permit counsel to argue their differing interpretations of the law relating to the charged offense. The trial court is the ultimate authority on the law as far as the jury is concerned. (See Bollenbach v. U.S. (1946) 326 US 607, 612 [66 SCt 402; 90 LEd 350]; People v. Mahoney (CA 1927) 201 C 618, 626-27 [258 P 607].) One of the court's central functions is to set forth the law governing the case in jury instructions. "Instructions are given on the relevant law simply because we do not presume a jury composed of lay persons is knowledgeable in the law." (People v. Whitehurst (CA 1992) 9 CA4th 1045, 1050 [12 CR2d 33]; accord Carter v. Kentucky (1981) 450 US 288, 302 [101 SCt 1112; 67 LEd2d 241].)

    Allowing counsel to argue differing interpretations of the law is equivalent to not giving instructions at all since it results in no judicial guidance as to which of the two differing interpretations should be applied. "To allow the jury to receive an application of the law to the facts only from the partisan advocates without a neutral and unbiased instruction on the matter in the charge is to risk the degeneration of trial by jury to a debating contest, where the persuasiveness of competing applications of the law to the facts determines guilt or innocence...." [Internal citations and quotation marks omitted.] (Hutch v. State (TX 1996) 922 SW2d 166, 174.)

    But see generally FORECITE National™ 272.3 [Summation/Closing Argument: Use Of Argument To Explain The Law Or Instructions].

See Manual On Recurring Problems In Criminal Trials [21d. Verdict: Inconsistent Verdict].

See also generally, FORECITE National™ 305.1.12 [Appeal].