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VOLUME 18 - CHAPTER 309
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Macro 309.10    Judge: Duties, Etc.

    Macro 10.1   Fair And Unbiased Judge 16.14.3.12
    Macro 10.2   Deadlock
    Macro 10.3   Improper Comment On Evidence
    Macro 10.4   Competency Of Judge: Impairment Of Judge's Faculties

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VOLUME 18 - CHAPTER 309

    The Constitution not only gives a criminal defendant a right to have the jury determine his guilt of every element of a crime for which he is charged, but also to have the trial before an impartial judge and jury. (U.S. v. Fuller (4th Cir. 1998) 162 F3d 256, 259; see also U.S. v. Gaudin (1995) 515 US 506, 514-15 [115 SCt 2309; 132 LEd2d 444]; Gray v. Mississippi (1987) 481 US 648, 668 [107 SCt 2045; 95 LEd2d 622]; Tumney v. Ohio (1927) 273 US 510, 535 [47 SCt 437; 71 LEd 749].)

    Actual or apparent bias by the trial judge against the defendant and/or in favor of the prosecution unfairly skews the trial toward conviction in violation of the defendant’s federal constitutional rights to a fair trial by jury and due process (5th, 6th and 14th Amendments). (Bracy v. Gramley (1997) 520 US 899, 904-05 [117 SCt 1793; 138 LEd2d 97] [due process requires a fair trial before a judge without actual bias against the defendant or an interest in the outcome of his particular case]; see also Withrow v. Larkin (1975) 421 US 35, 46 [95 SCt 1456; 43 LEd2d 712] [due process requires a "fair trial in a fair tribunal," before a judge with no actual bias against the defendant or interest in the outcome of his particular case]; Duncan v. Louisiana (1968) 391 US 145, 156 [88 SCt 1444; 20 LEd2d 491] [6th Amendment serves as "an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge"].)

    These rights are also implicated because a biased or unfair judge puts the defendant at a disadvantage (see Wardius v. Oregon (1973) 412 US 470 [93 SCt 2208; 37 LEd2d 82]) and because any juror perception of bias on the part of the trial judge may lessen or shift the prosecution’s burden of proving the defendant guilty beyond a reasonable doubt. (See Taylor v. Hayes (1974) 418 US 488, 501 [94 SCt 2697; 41 LEd2d 897] [judge’s appearance of bias may violate due process]; see also Offutt v. U.S. (1954) 348 US 11, 14 [75 SCt 11; 99 LEd 11] ["justice must satisfy the appearance of justice"].)

    To the extent that the proposed instruction is required by state law, arbitrary denial of that law may violate the Due Process Clause of the federal constitution. [Click here for authority on this: NCJIC Constitutional Macro 6.3 [Arbitrary Denial Of State Created Right]; see also NCJIC Constitutional Macro 6.4 [Cumulative Effect Of State Errors As Violation Of Federal Due Process].]

    To the extent that this instruction promotes reliability in the jury's disposition of the case, it is predicated upon the Due Process Clause (5th and 14th Amendments) of the federal constitution. [Click here for NCJIC Constitutional Macro 6.7 [Reliability Of Conviction And Sentence Guaranteed By Due Process].]

ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases other federal constitutional claims may apply, in addition to the claims discussed above. (See NCJIC 309.13 [Constitutional Macros: Death Penalty].)

CAVEAT: This federalization "macro" is intended to aid counsel in preserving federal constitutional issues when making jury instruction requests. Preservation of such issues at trial can be a prerequisite to subsequent appellate review and federal habeas corpus relief. (See NCJIC 299.2.2 [Necessity Of Federalizing In Trial Court].)

    However, the issues, language and authorities included in these mantras should not be considered as a substitute for individual consideration of each constitutional claim on a case-by-case basis. Counsel should independently consider whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.

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VOLUME 18 - CHAPTER 309

    When a trial court instructs a deadlocked jury it "is essential in almost all cases to remind jurors of their duty and obligation not to surrender conscientiously held beliefs simply to secure a verdict for either party." (U.S. v. Mason (9th Cir. 1981) 658 F2d 1263, 1268; see also Rodriguez v. Marshall (9th Cir. 1997) 125 F3d 739, 748-51 [inquiry held not to be coercive where court on four occasions reminded the jurors not to surrender their sincerely held beliefs under pressure from the majority]; U.S. v. Scott (6th Cir. 1977) 547 F2d 334, 337 ["one of the most important parts of the Allen charge"]; Smalls v. Batista (2nd Cir. 1999) 191 F3d 272, 279 ["lack of any cautionary language which would discourage jurors from surrendering their own conscientiously held beliefs was a 'fatal flaw'"]; Sartin v. State (OK 1981) 637 P2d 897, 898; see also NCJIC Constitutional Macro 7.8 [Right To Individual Juror Determination].)

    To the extent that the proposed instruction is required by state law, arbitrary denial of that law may violate the Due Process Clause of the federal constitution. [Click here for authority on this: NCJIC Constitutional Macro 6.3 [Arbitrary Denial Of State Created Right]; see also NCJIC Constitutional Macro 6.4 [Cumulative Effect Of State Errors As Violation Of Federal Due Process].]

    To the extent that this instruction promotes reliability in the jury's disposition of the case, it is predicated upon the Due Process Clause (5th and 14th Amendments) of the federal constitution. [Click here for NCJIC Constitutional Macro 6.7 [Reliability Of Conviction And Sentence Guaranteed By Due Process].]

ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases other federal constitutional claims may apply, in addition to the claims discussed above. (See NCJIC 309.13 [Constitutional Macros: Death Penalty].)

CAVEAT: This federalization "macro" is intended to aid counsel in preserving federal constitutional issues when making jury instruction requests. Preservation of such issues at trial can be a prerequisite to subsequent appellate review and federal habeas corpus relief. (See NCJIC 299.2.2 [Necessity Of Federalizing In Trial Court].)

    However, the issues, language and authorities included in these mantras should not be considered as a substitute for individual consideration of each constitutional claim on a case-by-case basis. Counsel should independently consider whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.

    309.10.3    Improper Comment On Evidence

    See NCJIC Constitutional Macro 5.4 [Instructions That Express An Opinion About The Guilt Of The Defendant].

    See also NCJIC Constitutional Macro 5.5 [Argumentative Instructions].

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VOLUME 18 - CHAPTER 309

    309.10.4    Competency Of Judge: Impairment Of Judge's Faculties

PRACTICE NOTE:  "Due process implies a tribunal both impartial and mentally competent to afford a hearing."  (Jordan v. Massachusetts (1912) 225 US 167, 176 [32 SCt 651; 56 LEd 1038]; see also Summerlin v. Stewart (9th Cir. 2001) 267 F3d 926 [judicial impairment by marijuana].)