THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
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 VOLUME 16 - CHAPTER 299
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299.1 Preserving Federal Constitutional Claims: General Principles

    299.1.1 Introduction
    299.1.2 Reasons For Federalizing Jury Instruction Requests

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

 VOLUME 16 - CHAPTER 299

PRACTICE NOTE: As Justice Mosk observed in his dissent in In re Jackson (CA 1992) 3 C4th 578, 616-17 [11 CR2d 531]:

    "It is a melancholy truth that as the final arbiter of the meaning and effect of the California Constitution, this court can with impunity deny our citizens rights guaranteed by that charter. What this court cannot do with impunity is deny our citizens rights guaranteed by the United States Constitution.

...

    Fortunately for petitioner, on the questions in issue this Supreme Court is neither infallible nor final."

    Given this reality, providing a federal constitutional basis for instructional issues in state court is more important than ever. The necessity for preservation of federal constitutional issues related to jury instructions at the trial level was emphasized in Sochor v. Florida (1992) 504 US 527 [112 SCt 2114; 119 LEd2d 326, 337-38]. In a 7-2 opinion, the court held that it lacked jurisdiction to review the issue because there was no objection to the instruction at trial and the Florida courts held the issue was not preserved for appeal. (Sochor, at 533; see also People v. Gordon (CA 1990) 50 C3d 1223, 1249 fn 2 [270 CR 451] [issue procedurally defaulted for failure of trial counsel to state federal constitutional bases for objection to evidence].)

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

 VOLUME 16 - CHAPTER 299

PRACTICE NOTE: Federalizing a request for an instruction or an objection to an instruction is efficacious for many reasons.

    First, the more favorable Chapman (Chapman v. California (1967) 386 US 18 [87 SCt 824; 17 LEd2d 705]) standard applies to direct review of a federal constitutional issue. (See NCJIC 296.2.1.2 [Prejudice On Appeal: The Chapman Standard].)

    Second, if the federal constitutional claim is rejected in state court, a federal writ of habeas corpus offers another potential avenue for obtaining relief. (See e.g., Sheppard v. Rees (9th Cir. 1990) 909 F2d 1234, 1236-37 [murder conviction overturned where trial court improperly instructed upon felony murder when that theory was not charged in the information]; see also NCJIC Chapter 298 [Habeas Corpus].)

    Third, a federal constitutional claim may be the basis for a petition for review (certiorari) in the United States Supreme Court. (See 28 USC 1257.)