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300.4 Failure Of Instructions To Assure Proper Jury Determination Of An Element Of The Charged Offense (Due Process/Trial By Jury)

    300.4.1 Failure Of Instructions To Assure Proper Jury Determination Of An Element Of The Charged Offense: General Principles
    300.4.2 Constitutional Claims: Failure To Instruct Or Directed Verdict On Element Of Charge
    300.4.3 Constitutional Claims: Withdrawal Of Factual Issue May Constitute A Directed Verdict
    300.4.4 Constitutional Claims: Misinstruction On Element Of Charge
    300.4.5 Constitutional Claims: Contradictory Instructions On Element
    300.4.6 Constitutional Claims: Failure To Instruct On All Elements Of The Charge

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    300.4.1    Constitutional Claims: Failure Of Instructions To Assure Proper Jury Determination Of An Element Of The Charged Offense --  General Principles

PRACTICE NOTE: As a general proposition, when the judge fails in his or her duty to assure the jury's proper conduct and determination of issues involving "constitutional requirements," the due process clause of the 14th amendment is implicated. (McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 839 [referring to Estelle v. McGuire (1991) 502 US 62, 67-72 [112 SCt 475; 116 LEd2d 385]].)

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

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PRACTICE NOTE: "Although the [prosecution] may rely on inferences and circumstantial evidence, it nevertheless must establish proof of each element of the crime beyond a reasonable doubt....[T]o require less of the [prosecution] would eviscerate its burden to prove all elements of a crime beyond a reasonable doubt and relieve it of its burden of vigilance in prosecuting crimes -- thereby violating bedrock principles of Anglo-American jurisprudence." (U.S. v. Ismail (4th Cir. 1996) 97 F3d 50, 55; see also Neder v. U.S. (1999) 527 US 1, 9 [119 SCt 1827; 144 LEd2d 35].)

    "Constitutional guarantees of due process and trial by jury require that a criminal defendant be afforded the full protection of a jury unfettered, directly or indirectly. [Citation]." (U.S. v. Spock (1st Cir. 1969) 416 F2d 165, 182.) Failure to instruct on an element of the offense or an instruction directing the jury to find an element against the defendant violates 6th Amendment right to trial by jury applied to the States through the 14th Amendment (see U.S. v. Caldwell (9th Cir. 1993) 989 F2d 1056, 1060-61) and 14th Amendment right to due process. (Osborne v. Ohio (1990) 495 US 103, 123-24 [110 SCt 1691; 109 LEd2d 98]; Carella v. California (1989) 491 US 263, 265-66 [109 SCt 2419; 105 LEd2d 218]; Cabana v. Bullock (1986) 474 US 376, 384-86 [704 SCt 689; 88 LEd2d 704]; Cole v. Young (7th Cir. 1987) 817 F2d 412, 423-426 [instruction in a state criminal trial which omits an element of a crime violates the due process clause of the 14th Amendment]; Rael v. Sullivan (10th Cir. 1990) 918 F2d 874, 875; People v. Cummings (CA 1993) 4 C4th 1233, 1312-14 [18 CR2d 796]; People v. Figueroa (CA 1986) 41 C3d 714, 725 [224 CR 719]; People v. Hernandez (CA 1988) 46 C3d 194, 211 [249 CR 850].)

    These provisions are also implicated by situations where the jury is not given an opportunity to decide a relevant factual question. (See U.S. v. Voss (8th Cir. 1986) 787 F2d 393, 398; Figueroa, 41 C3d at 724.) "...[A] judge in a criminal case may not direct a verdict, even a partial verdict, for the government even though the evidence is overwhelming or even undisputed on the point .... When a judge gives an instruction preventing the jury from considering a material issue, the instruction is equivalent to an impermissible directed verdict on the issue." (U.S. v. Piche (4th Cir. 1992) 981 F2d 706, 716.)

    The applicability of the reversible per se rule for the failure to instruct on an element has been questioned in two situations: (1) when the issue is raised on federal habeas (see NCJIC 298.3 [Standard Of Prejudice On Federal Habeas]; see also NCJIC 296.2.3.6 [Standard Of Prejudice On Appeal: Omission Of Or Improper Instruction On Element Of A Death Qualification Allegation]; see also NCJIC 296.2.3.7 [Standard Of Prejudice: Failure To Instruct On Element Of Sentencing Enhancement Or Prior Conviction].)

    In Wade v. Calderon (9th Cir. 1994) 29 F3d 1312, 1322) neither of these factors precluded relief. The Ninth Circuit held that the failure to instruct upon an element of a special circumstance (death qualifier) is reversible error on federal habeas if the jury has not been required to make a finding on the omitted element. In Wade, torture (as required for the special circumstance) was defined for the jury in terms that did not include the necessary element of intent to inflict extreme pain. The court concluded that because the jury was permitted to find the special circumstance to be true without making any finding of the defendant's intent to torture, the error necessarily "influenced the jury's verdict." (Wade, 29 F3d at 1320.)

    Fecske v. State (FL 2000) 757 So2d 548 held that the trial court erred in instructing jury that lack of affirmative medical treatment of a victim whose injury was proximately caused by the defendant’s actions is not an intervening cause relieving defendant of criminal responsibility for victim’s death.  The instruction was a correct statement of the law but an improper comment on the evidence.  The instruction essentially directed verdict against defendant on issue of whether death was caused by intervening case of undiagnosed pneumonia and not injuries from defendant’s drunken driving. A doctor had testified he could not determine whether victim would still be alive if pneumonia was diagnosed before death.

    Sarduy v. State (FL 1989) 540 So2d 203 held that trial court essentially directed verdict of guilt and committed reversible error in instructing jury that firing gun into a group of people constitutes second-degree murder when death results, even without intent to kill. "Passages from appellate opinions, taken out of context, do not always make for good jury instructions." (Id. at 205, citing Bankers Multiple Line Ins. Co. v. Farish (FL 1985) 464 So2d 530, 533 n 3, in which the Florida Supreme Court stated: "The fact that a statement of reasoning may be set forth in a judicial opinion does not mean that it is a proper jury instruction.")

RESEARCH NOTES:

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

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PRACTICE NOTE: The prohibition against directed verdicts "includes perforce situations in which the judge's instructions fall short of directing a verdict but which nevertheless have the effect of so doing by eliminating other relevant factual considerations if the jury finds one fact to be true." (People v. Figueroa (CA 1986) 41 C3d 714, 724 [224 CR 719]; see also U.S. v. Voss (8th Cir. 1986) 787 F2d 393, 398 [when the jury is not given an opportunity to decide a relevant factual question, the defendant is deprived of his right to a jury trial]; U.S. v. Rockwell (3rd Cir. 1986) 781 F2d 985, 991 [instructions which "improperly invaded the province of the jury to determine the facts and assess the credibility of witnesses ... [were] sufficiently misleading to deprive Rockwell of a fair trial"]; U.S. v. McClain (5th Cir. 1977) 545 F2d 988, 1003.)

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

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PRACTICE NOTE: Erroneous or contradictory instructions defining the elements of a crime may violate the due process clause (5th and 14th Amendments).  (See e.g., People v. Lee (CA 1987) 43 C3d 666, 673-74 [238 CR 406].) The failure to adequately instruct upon an element of the offense violates the 6th Amendment right to trial by jury as applied to the states through the 14th Amendment and the 5th and 14th Amendment right to due process. (See Rose v. Clark (1986) 478 US 570, 580-81 [106 SCt 3101; 92 LEd2d 460]; People v. Hernandez (CA 1988) 46 C3d 194, 211 [249 CR 850]; see also People v. Macedo (CA 1989) 213 CA3d 554, 561 [261 CR 754] ["Conflicting or inadequate instructions on intent are closely related to instructions that completely remove the issue of intent from the jury's consideration ... they constitute federal constitutional error"].)

    In People v. Davison (CA 1995) 32 CA4th 206, 215-17 [38 CR2d 438], the court relied on People v. Harris (CA 1994) 9 C4th 407, 424-29 [37 CR2d 200] to conclude that misinstruction upon the fear element of a robbery charge was harmless because the jury "would have considered all of the evidence before it ... and ... the record overwhelmingly established that [the victim] stepped back from the ATM because appellant's conduct induced fear in her." (Davison, 32 CA4th at 217.)

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

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    300.4.5    Constitutional Claims: Contradictory Instructions On Element

PRACTICE NOTE: Contradictory instructions defining the elements of a crime may violate the due process clause. (People v. Lee (CA 1987) 43 C3d 666, 673-74 [238 CR 406], and cases cited therein; Baldwin v. Blackburn (5th Cir. 1981) 653 F2d 942, 949 [misleading and confusing instructions under state law may violate due process where they are "likely to cause an imprecise, arbitrary or unsupportable finding of guilt"].)

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

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PRACTICE NOTE:  "It is structural error requiring automatic reversal to allow a jury to deliberate a criminal charge where there is a complete failure to instruct the jury regarding any of the elements necessary to determine if the prosecution has proven the charge beyond a reasonable doubt." (People v. Duncan (MI 2000) 610 NW2d 551, 552.) The court distinguished Neder v. U.S. (1999) 527 US 1 [119 SCt 1827; 144 LEd 2d 35], where the Supreme Court ruled that an instructional error regarding one element of a crime is subject to harmless error analysis.  (610 NW2d at 555-56.)

    See generally NCJIC 296.2.3.1 [Standard Of Prejudice On Appeal: Removal Of All Elements].