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300.12 Instructions Must Be Balanced

    300.12.1 Balance Between Prosecution And Defense: Due Process Requires Instructions Which Do Not Unduly Favor The Prosecution
    300.12.2 Due Process Requires That The Instructions Be Balanced Between Codefendants
    300.12.3 Constitutional Claims: Balance Among Instructions
    300.12.4 Exercise Of One Constitutional Right Should Not Be Conditioned Upon The Waiver Of Another
    300.12.5 Exercise Of Statutory Right Should Not Be Conditioned Upon The Waiver Of Another
    300.12.6 Balance Between Prosecution And Defense: Equal Protection

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    300.12.1    Balance Between Prosecution And Defense: Due Process Requires Instructions Which Do Not Unduly Favor The Prosecution

PRACTICE NOTE: In Wardius v. Oregon (1973) 412 US 470, 473 fn 6 [93 SCt 2208; 37 LEd2d 82] the U.S. Supreme Court warned that "state trial rules which provide nonreciprocal benefits to the State when the lack of reciprocity interferes with the defendant's ability to secure a fair trial" violate the defendant's due process rights under the 14th Amendment. (See also Washington v. Texas (1967) 388 US 14, 22 [87 SCt 1920; 18 LEd2d 1019]; Gideon v. Wainwright (1963) 372 US 335, 344 [83 SCt 792; 9 LEd2d 799]; Gray v. Klauser (9th Cir. 2002) 282 F3d 633, 641 [trial court's "asymmetrical" application of rules regarding hearsay evidence, offered by both the prosecution and the defense, was contrary to two well-established constitutional principles: (1) the government may not arbitrarily deprive a defendant of the right to present a defense and/or present witnesses on his behalf; and (2) the trial court cannot impose more rigorous requirements on testimony presented by defendant than on that presented by the prosecution without justification]; Izazaga v. Superior Court (CA 1991) 54 C3d 356, 372-77 [285 CR 231]; cf. Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69 Yale L.J. 1149, 1180-92 (1960).)  Noting that the Due Process Clause "does speak to the balance of forces between the accused and his accuser," Wardius held that "in the absence of a strong showing of state interests to the contrary ... [there] must be a two-way street" as between the prosecution and the defense. (Wardius, 412 US at 474.)

    Although Wardius involved reciprocal discovery rights, the same principle should apply to jury instructions. (See People v. Moore (CA 1954) 43 C2d 517, 526-27 [275 P2d 485] ["There should be absolute impartiality as between the People and the defendant in the matter of instructions"]; accord, Reagan v. United States (1895) 157 US 301, 310 [15 SCt 610; 39 LEd 709].) Therefore, instructions which give an unfair advantage to the prosecution violate the 'balance' required by Wardius and implicate due process. (U.S. Const. 14th Amendment.) For instance, since the prosecution is allowed consciousness of guilt instructions, due process may be implicated if the defendant is not allowed reciprocal 'consciousness of innocence' instructions where supported by the evidence. (See e.g., NCJIC Chapter 35 [Consciousness Of Innocence].)

    Similarly, an instruction which points to defendant’s motive to testify falsely should contain balancing language allowing the jury to find the testimony truthful. (See U.S. v. Matias (2nd Cir. 1987) 836 F2d 744, 749-50; see also People v. Lee (NY 1985) 488 NYS2d 738, 740 [charge that jury carefully scrutinize alibi testimony must be balanced with similar instructions regarding identification]; People v. Hollis (NY 1984) 482 NYS2d 557, 559 [instruction on identification mentioned points which supported prosecution’s case on identification but omitted mention of weaknesses brought out on cross-examination].) It is improper for an instruction to stress the application of a rule to the defense witnesses without mention of prosecution witnesses to whom it might also have applied.  "A trial court is obligated to deliver balanced instructions to the jury in a criminal case...." (Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 2:22 [Charging The Jury-Sufficiency Of Charge-Balanced And Nonprejudicial Wording] (West, 1999).)

    See also NCJIC 300.12.6 [Balance Between Prosecution And Defense: Equal Protection].

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PRACTICE NOTE: The same due process principles which requires balance between the defendant and the prosecution should also require balance between the defendant and other codefendants. (See e.g., U.S. v. Tagalicud (9th Cir. 1996) 84 F3d 1180, 1185 [using only one of several defendants as example for explaining elements of the offense improperly implied that the case against that defendant was stronger or more important].)

    For example, it is improper and unfair to give different instructions as to equally situated codefendants. (See State v. Roof (SC 1989) 380 SE2d 828, 829; State v. Good (SC 1993) 432 SE2d 463, 466 [a jury instruction on the law of accessory is only required where the evidence points to an exclusionary offense which dictates that different proof is required as to each defendant"].)

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    See generally NCJIC 16.10.1 [Duty To Consider Instructions As A Whole].

    See also NCJIC 285.2.3 [Admonition That Supplemental Instructions Have No Greater Weight Than Original Instructions].

    See also NCJIC 3.3.2.5 [Due Process Right To Balance Between Defense And Prosecution As Ground For Defense Theory Instruction].

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PRACTICE NOTE:  It is well settled that the exercise of one constitutional right cannot be conditioned upon the denial or waiver of another. (See Simmons v. U.S. (1968) 390 US 377, 394 [88 SCt 967; 19 LEd2d 1247]; see also NCJIC 300.12.4 [Exercise Of One Constitutional Right Should Not Be Conditioned Upon The Waiver Of Another].) The element of coerced choice described by Simmons and others may also be present where the defendant is required to choose between a statutory right and a constitutional right. (See Hunt v. Mitchell (6th Cir. 2001) 261 F3d 575, 582 [improper to require defendant to choose between waiver of statutory right to speedy trial and constitutional rights implicated by lack of adequate time to prepare for trial].)

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PRACTICE NOTE: The essence of an equal protection deprivation is treating similarly situated parties differently. (See generally Shortridge v. State (IA 1991) 478 NW2d 613, 615; see also Lindsay v. Normet (1972) 405 US 56, 77 [92 SCt 862; 31 LEd2d 36].) However, the parties have to be truly similarly situated, and the prosecution and defense will naturally have some material differences in some areas. But on some matters, any differences will be immaterial and it will be true that, as the Ninth Circuit put it: "We should not have one rule for the prosecution and another rule for the defense." (U.S. v. Saenz (9^th Cir. 1999) 179 F3d 686, 689, fn. 4 [reversing for trial court’s refusal to permit defendant to introduce evidence of victim’s tendency toward violence].) Or, as the California Supreme Court put it, in an instructional error case: "The rules of law relating to [the key defense theory] should not have been stated exclusively from the viewpoint of the prosecution. There should be absolute impartiality as between the [prosecution] and the defendant in the matter of instructions, including the phraseology employed in the statement of familiar principles." (People v. Moore (CA 1954) 43 C2d 517, 526-27 [275 P2d 485].)

Accordingly, if a particular type of instruction is given to one party but an equivalent instruction is not given to another party, under circumstances that are similar in all material ways (except for who the party is), then it may be argued that there is an equal protection violation. (See also NCJIC 300.12.1 [Balance Between Prosecution And Defense: Due Process Requires Instructions Which Do Not Unduly Favor The Prosecution].)