THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
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VOLUME 18 - CHAPTER 309
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Macro 309.11    Attorneys: Duties, Etc.

    Macro 11.1   Prosecution Misconduct As Violation Of Specific Rights
    Macro 11.2   Improper Prosecutorial Argument To Jury As Violation Of Due Process
    Macro 11.3   Right To Effective Representation Or Counsel
    Macro 11.4   Right To Argument

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

VOLUME 18 - CHAPTER 309

    Prosecution misconduct may also implicate other substantive federal constitutional rights of the defendant depending on the type of misconduct. (Berger v. United States (1935) 295 US 78, 84-89 [55 SCt 629; 79 LEd 1314].)  Reference to matters outside of the evidence presented at trial implicate the defendant’s rights to confrontation, representation of counsel and due process. (See e.g., Napue v. Illinois (1959) 360 US 264 [79 SCt 1173; 3 LEd2d 1217] [due process; knowing use of perjured testimony]; Wainwright v. Greenfield (1986) 474 US 284 [106 SCt634; 88 LEd2d 623] [due process; comment on post-Miranda silence, as Fourteenth Amendment violation because of government's reneging on representation  in Miranda warnings]; United States v. Maloney (2d Cir. 1959) 262 F2d 535, 536-537 [prosecutorial misconduct  to try to build a case around inferences created by prosecutor calling  witness for purpose of having witness claim privilege against self-incrimination in front of  jury]; Paxton v. Ward (10th Cir. 1999) 199 F3d 1197, 1217-18.) Disparagement of defense counsel by the prosecutor implicates the defendant’s Sixth Amendment right to counsel. (See generally Donnelly v. DeChristoforo (1974) 416 US 637 [94 SCt 1868; 40 LEd2d 431].) Improper disparagement of the defendant implicates the defendant’s Fifth, Sixth and Fourteenth Amendment rights to present a defense, due process, compulsory process and, if the defendant has testified, the right to testify in one’s own defense. (See NCJIC Constitutional Macro 4.1 [Defense Theory Which Negates Element: Right To Instruction].) The prosecutor’s improper reference to inflammatory and prejudicial evidence implicates the defendant’s rights to a fair trial by jury and due process. (See NCJIC Constitutional Macro 5.1 [Highly Prejudicial Or Inflammatory Evidence].)

    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.

    The federal constitutional rights to a fair trial by jury and due process (5th, 6th and 14th Amendments) preclude procedures, conduct, etc., that make the trial fundamentally unfair. (See Kyles v. Whitley (1995) 514 US 419, 435-37 [115 SCt 1555; 131 LEd2d 490]; Lambert v. California (1957) 355 US 225 [78 SCt 240; 2 LEd2d 228].)

    These rights are implicated by prosecutorial misconduct which gives the prosecution an unfair advantage and/or gives the defense an unfair disadvantage. (See Wardius v. Oregon (1973) 412 US 470 [93 SCt 2208; 37 LEd2d 82].)

    Therefore, even if the prosecutor’s statements to the jury do not violate a specific provision of the federal constitution, they may "so infect the trial with unfairness as to make the resulting conviction a denial of due process." [Internal citations and quotation marks deleted.] (Sawyer v. Smith (1990) 497 US 227, 235 [110 SCt 2822; 111 LEd2d 193]; see also Donnelly v. DeChristoforo (1974) 416 US 637, 643-45 [94 SCt 1868; 40 LEd2d 431].)

    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.

    The federal constitution (6th and 14th Amendments) requires that a criminal defendant be effectively represented by counsel. (See Gideon v. Wainwright (1963) 372 US 335 [83 SCt 792; 9 LEd2d 799]; Strickland v. Washington (1984) 466 US 668 [104 SCt 2052; 80 LEd2d 674].) When counsel is absent from a critical stage of the trial this constitutional right to is also violated. (Mempa v. Rhay (1967) 389 US 128, 134-36 [88 SCt 254; 19 LEd2d 336]; see also Kirby v. Illinois (1972) 406 US 682, 688 [92 SCt 1877; 32 LEd2d 411]; U.S. v. Wade (1967) 388 US 218 [87 SCt 1926; 18 LEd2d 1149]; Powell v. Alabama (1932) 287 US 45 [53 SCt 55; 77 LEd 158].)

    A critical stage is a point in the criminal process at which the accused requires "aid in coping with legal problems or assistance in meeting his adversary." (U.S. v. Ash (1973) 413 US 300, 313 [93 SCt 2568; 37 LEd2d 619].)

    This right is implicated by procedures, instructions and/or absence of instructions which impair the ability of counsel to effectively represent the defendant. (See e.g., Geders v. U.S. (1976) 425 US 80, 88-89 [96 SCt 1330; 67 LEd2d 592] [communication is critical to the attorney/client relationship; denial of the opportunity to confer with counsel results in reversible constitutional error].)

    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.

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

VOLUME 18 - CHAPTER 309

    The right of argument to the jury is grounded on the fundamental federal constitutional right to fair trial by jury and the right to effective representation of counsel. (See Herring v. New York (1975) 422 US 853, 858 [95 SCt 2550; 45 LEd2d 593]; see also Commonwealth v. McNair (PA 1966) 222 A2d 599, 600.)