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Instructions And Issues Omitted By The Pattern Instructions
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VOLUME 18 - CHAPTER 309
Go to Volume 18 Table of Contents  -  Go to Chapter 309 Table of Contents

Macro 309.2      Burden Of Proof

    Macro 2.1   Burden Of Proof: Failure To Adequately Define
    Macro 2.2   Instructions Which Shift Burden
    Macro 2.3   Burden Of Proof: Elements And Essential Facts
    Macro 2.4   Prosecution’s Burden Of Proof: Irrational Permissive Inference
    Macro 2.5   Lightening, Lessening Or Diminishing The Prosecution's Burden Of Proof
    Macro 2.6   Lack Of Evidence May Result In Reasonable Doubt

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 18 - CHAPTER 309

    This instruction is required by the federal constitutional rights to a fair trial by jury and due process (5th, 6th and 14th Amendments) which place the burden on the prosecution to prove every element of the charge beyond a reasonable doubt. (See In re Winship (1970) 397 US 358 [90 SCt 1068; 25 LEd2d 368]; Jackson v. Virginia (1979) 443 US 307, 315-18 [99 SCt 2781; 61 LEd2d 560].)

    These rights are implicated if the jury is not fully and correctly instructed on the prosecution’s burden. (See Sullivan v. Louisiana (1993) 508 US 275, 278-81 [113 SCt 2078; 124 LEd2d 182].)

    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: FORECITE National™ Constitutional Macro 6.3 [Arbitrary Denial Of State Created Right]; see also FORECITE National™ 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 FORECITE National™ 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 FORECITE National™ 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 FORECITE National™ 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.

    This instruction is required by the Due Process Clause of the federal constitution (5th and 14th Amendments) which protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.  (In re Winship (1970) 397 US 358, 364 [90 SCt 1068; 25 LEd2d 368]; see also Fiore v. White (2001) 531 US 225 [121 SCt 712; 148 LEd2d 629]; Apprendi v. New Jersey (2000) 530 US 466 [120 SCt 2348; 147 LEd2d 435]; U.S. v. Gaudin (1995) 515 US 506, 514 [115 SCt 2309; 132 LEd2d 444]; Sullivan v. Louisiana (1993) 508 US 275, 278-81 [113 SCt 2078; 124 LEd2d 182].)

    These rights are implicated by jury instructions which place upon the defendant the burden of disproving the existence of an element of the offense. (See Sandstrom v. Montana (1979) 442 US 510 [99 SCt 2450; 61 LEd2d 39].)

    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: FORECITE National™ Constitutional Macro 6.3 [Arbitrary Denial Of State Created Right]; see also FORECITE National™ 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 FORECITE National™ 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 FORECITE National™ 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 FORECITE National™ 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.

    This instruction is required by the Due Process Clause of the federal constitution (5th and 14th Amendments) which protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. (In re Winship (1970) 397 US 358, 364 [90 SCt 1068; 25 LEd2d 368]; see also Fiore v. White (2001) 531 US 225 [121 SCt 712; 148 LEd2d 629]; Apprendi v. New Jersey (2000) 530 US 466 [120 SCt 2348; 147 LEd2d 435]; U.S. v. Gaudin (1995) 515 US 506, 514 [115 SCt 2309; 132 LEd2d 444]; Sullivan v. Louisiana (1993) 508 US 275, 278-81 [113 SCt 2078; 124 LEd2d 182].)

     "If the Sixth Amendment right to have a jury decide guilt and innocence means anything [citation], it means that the facts essential to conviction must be proven beyond the jury's reasonable doubt... A jury verdict, if based on an instruction that allows it to convict without properly finding the facts supporting each element of the crime, is error." (U.S. v. Voss (8th Cir. 1986) 787 F2d 393, 398; see also Sandstrom v. Montana (1979) 442 US 510 [99 SCt 2450; 61 LEd2d 39]; Krucheck v. State (WY 1983) 671 P2d 1222, 1224-25.)

    "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.) Hence, the jury must be given an opportunity to decide the essential factual questions presented by the evidence. (See People v. Figueroa (CA 1986) 41 C3d 714, 724 [224 CR 719]; U.S. v. Voss (8th Cir. 1986) 787 F2d 393, 398.)

    This instruction is also required by the federal constitutional rights to a fair trial by jury and due process (5th, 6th and 14th Amendments) which require the prosecution to prove every element of the charged offense beyond a reasonable doubt. (Neder v. U.S. (1999) 527 US 1 [119 SCt 1827; 144 LEd2d 35]; Carella v. California (1989) 491 US 263, 265-66 [109 SCt 2419; 105 LEd2d 218]; Cabana v. Bullock (1986) 474 US 376, 384-86 [106 SCt 689; 88 LEd2d 704]; In re Winship (1970) 397 US 358 [90 SCt 1068; 25 LEd2d 368].) These rights are implicated by the failure to fully and correctly instruct the jury on one or more elements of the charged offense. (See U.S. v. Gaudin (1995) 515 US 506, 509-12 [115 SCt 2309; 132 LEd2d 444]; Osborne v. Ohio (1990) 495 US 103, 122-23 [110 SCt 1691; 109 LEd2d 98].)

    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: FORECITE National™ Constitutional Macro 6.3 [Arbitrary Denial Of State Created Right]; see also FORECITE National™ 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 FORECITE National™ 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 FORECITE National™ 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 FORECITE National™ 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.

    309.2.4    Prosecution’s Burden Of Proof: Irrational Permissive Inference

    This instruction is required by the federal constitutional rights to a fair trial by jury and due process (5th, 6th and 14th Amendments) which place the burden on the prosecution to prove every element of the charge beyond a reasonable doubt. (In re Winship (1970) 397 US 358 [90 SCt 1068; 25 LEd2d 368]; Jackson v. Virginia (1979) 443 US 307, 315-18 [99 SCt 2781; 61 LEd2d 560].)

    These rights are implicated by jury instructions which permit the jury to make an arbitrary or irrational permissive inference which incriminates the defendant. (Ulster County Court v. Allen (1979) 442 US 140, 157 [99 SCt 2213; 60 LEd2d 777]; see also Francis v. Franklin (1985) 471 US 307, 314-15 [105 SCt 1965; 85 LEd2d 344]; Tot v. United States (1943) 319 US 463, 467-68 [63 SCt 1241; 87 LEd 1519]; Schwendeman v. Wallenstein (9th Cir. 1992) 971 F2d 313, 316.) 

    "[A] criminal statutory presumption must be regarded as ‘irrational’ or ‘arbitrary,’ and hence unconstitutional unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact upon which it is made to depend. [Footnote omitted.]" (Leary v. U.S. (1969) 395 US 6, 36 [89 SCt 1532; 23 LEd2d 57]; see also Ulster County Court, 442 US at 165-66.)

    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: FORECITE National™ Constitutional Macro 6.3 [Arbitrary Denial Of State Created Right]; see also FORECITE National™ 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 FORECITE National™ 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 FORECITE National™ 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 FORECITE National™ 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.

    This instruction is required by the federal constitutional rights to a fair trial by jury and due process (5th, 6th and 14th Amendments) which preclude instructions or procedures which diminish or lighten the prosecution’s burden of proof. (See Sullivan v. Louisiana (1993) 508 US 275, 278-81 [113 SCt 2078; 124 LEd2d 182]; Sandstrom v. Montana (1979) 442 US 510 [99 SCt 2450; 61 LEd2d 39].)

     This instruction is required by the federal constitutional rights to a fair trial by jury and due process (5th, 6th and 14th Amendments) which place the burden on the prosecution to prove every element of the charge beyond a reasonable doubt. (In re Winship (1970) 397 US 358 [90 SCt 1068; 25 LEd2d 368]; Jackson v. Virginia (1979) 443 US 307, 315-18 [99 SCt 2781; 61 LEd2d 560]; see also U.S. v. Gaudin (1995) 515 US 506, 514 [115 SCt 2309; 132 LEd2d 444] [it is "the jury’s constitutional responsibility...not merely to determine the facts, but to apply the law to those facts..."]; Henderson v. Kibbe (1977) 431 US 145, 153 [97 SCt 1730; 52 LEd2d 203].) "If the Sixth Amendment right to have a jury decide guilt and innocence means anything [citation], it means that the facts essential to conviction must be proven beyond the jury's reasonable doubt... A jury verdict, if based on an instruction that allows it to convict without properly finding the facts supporting each element of the crime, is error." (U.S. v. Voss (8th Cir. 1986) 787 F2d 393, 398; see also Sandstrom v. Montana (1979) 442 US 510 [99 SCt 2450; 61 LEd2d 39].)

    These principles are implicated by instructions or procedures which preclude the jury from concluding that there is a reasonable doubt as to guilt based simply on the lack of evidence as opposed to affirmative evidence of innocence.    

    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: FORECITE National™ Constitutional Macro 6.3 [Arbitrary Denial Of State Created Right]; see also FORECITE National™ 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 FORECITE National™ 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 FORECITE National™ 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 FORECITE National™ 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.