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VOLUME 18 - CHAPTER 309
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Macro 309.5      Evidence, Witnesses, Etc.

    Macro 5.1   Highly Prejudicial Or Inflammatory Evidence
    Macro 5.2   Guilt By Association
    Macro 5.3   Impairing Jury’s Assessment Of Witness Credibility As Violation Of Right To Trial By Jury
    Macro 5.4   Instructions That Express An Opinion About the Guilt Of The Defendant
    Macro 5.5   Argumentative Instructions
    Macro 5.6   Extraneous Evidence
    Macro 5.7   Improper Emphasis Of Specific Evidence
    Macro 5.8   Factual Finding Necessary For Consideration Of Evidence
    Macro 5.9   Uncharged Acts: Propensity
    Macro 5.10 Aranda/Bruton

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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 are implicated if the jury is permitted to consider highly prejudicial or inflammatory evidence. (See Dawson v. Delaware (1992) 503 US 159, 167-68 [112 SCt1093; 117 LEd2d 309]; see also Krulewitch v. U.S. (1949) 336 US 440, 444-45 [69 SCt 716; 93 LEd 790] [recognizing unfairness of exposing jury to prejudicial evidence of accomplice’s guilt]; McKinney v. Rees (9th Cir. 1993) 993 F2d 1378, 1380-82.)

    Jury consideration of such evidence reduces the fairness and reliability of the verdict and lessens the prosecution's burden. (See People v. Garceau (CA 1993) 6 C4th 140, 209-10 [24 CR2d 664] conc. opn. [permitting jury to improperly consider other crimes evidence to show criminal propensity lessened the prosecution’s burden in violation of the federal constitution].)

    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.

    309.5.2    Guilt By Association

    This instruction is required by the federal constitutional rights to a fair trial by jury and due process require the prosecution to prove the accused guilty beyond a reasonable doubt. (See In re Winship (1970) 397 US 358 [90 SCt 1068; 25 LEd2d 368].)

    These rights are implicated by procedures, instructions and/or the absence of instructions which result in the jury’s conviction of the accused based in whole or part upon the guilt of another person rather than the evidence admitted against the accused. (Jackson v. Denno (1964) 378 US 368, 388 [84 SCt 1774; 12 LEd2d 908]; Krulewitch v. U.S. (1949) 336 US 440, 445-46, 457 [69 SCt 716; 93 LEd 790] [conspiracy liability based solely on guilt by association is "fundamentally and irreconcilably at war with our presumption of innocence"]; Kottteakos v. United States (1946) 328 US 750, 772-74 [66 SCt 1239; 90 LEd 1557]; United Brotherhood of Carpenters v. United States (1947) 330 US 395, 405-07 [67 SCt 775; 91 LEd 973];  Tot v. U.S. (1943) 319 US 463, 467 [63 SCt 1241; 87 LEd 1519] ["the due process clauses of the Fifth and Fourteenth Amendments set limits upon the power of Congress or that of a state legislature to make the proof of one fact or group of facts evidence of the existence of the ultimate fact on which guilt is predicated"].)

    Conviction of the accused based on evidence admitted against another person also violates the defendant’s federal constitutional rights to representation of counsel, confrontation and due process (5th, 6th and 14th Amendments) by convicting the accused based on evidence which he or she has not had an opportunity to challenge and/or confront. (See Bruton v. United States (1968) 391 US 123 [88 SCt 1620; 20 LEd2d 476]; see also Imwinkelried & Garland, Exculpatory Evidence (Lexis, 2nd ed. 1996) § 2-2(d) [6th Amendment right to confrontation]; see also NCJIC 300.26.1 [General Principles].)

    Additionally, the First Amendment "restricts the ability of the State to impose liability on an individual solely because of his association with another." (N.A.A.C.P. v. Claiborne Hardware Co. (1982) 458 US 886, 918-19 [102 SCt 3409; 72 LEd2d 1215]; see also Scales v. U.S. (1961) 367 US 203, 228-29 [81 SCt 1469; 6 LEd2d 782].)

    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

    This instruction is required by the federal constitutional rights to due process and a fair trial by jury (5th, 6th and 14th Amendments) which require that the jury assess witness credibility.  "A fundamental premise of our criminal trial system is that 'the jury is the lie detector.'  [Citation.]  Determining the weight and credibility of witness testimony, therefore, has long been held to be the 'part of every case [that] belongs to the jury, who are presumed to be fitted for it by their natural intelligence and their practical knowledge of men and the ways of men.'  [Citation.]"  (U.S. v. Scheffer (1998) 523 US 303, 313 [118 SCt 1261; 140 LEd2d 413].) "Implicit in the right to trial by jury afforded criminal defendants under the 6th Amendment to the Constitution of the United States is the right to have that jury decide all relevant issues of fact and to weigh the credibility of witnesses." (U.S. v. Hayward (DC Cir. 1969) 420 F2d 142, 144; see also U.S. v. Gaudin (1995) 515 US 506, 511 [115 SCt 2309; 132 LEd2d 444]; Davis v. Alaska (1974) 415 US 308, 318 [94 SCt 1105; 39 LEd2d 347]; Bollenbach v. U.S. (1946) 326 US 607, 614 [66 SCt 402; 90 LEd 350] ["...the question is not whether guilt may be spelt out of a record, but whether guilt has been found by a jury according to the procedure and standards appropriate for criminal trials...."].)

    Procedures, jury instructions or the absence of jury instructions which result in the impairment of the jury’s central function of assessing the credibility of witnesses may implicate the defendant’s federal constitutional right to trial by jury. (See Franklin v. Henry (9th Cir. 1997) 122 F3d 1270, 1273 [error in excluding a statement relating to the credibility of a child witness was of constitutional magnitude based on Crane v. Kentucky (1986) 476 US 683, 690-91 [106 SCt 2142; 90 LEd2d 636]]; U.S. v. Bloome (E.D.N.Y. 1991) 773 FSupp 545, 547 [opportunity for jury to appraise the credibility of witnesses safeguards the defendant’s rights]; People v. Robinson (CO 1993) 874 P2d 453, 459 [the trial court may not, consistent with the due process rights of defendant to a fair trial before an impartial judge and jury, express to the jury any personal opinion of credibility of witness and should scrupulously avoid even an appearance of partiality].)

    "No matter how lightly the court may regard the testimony offered on behalf of the defense, the question of its weight and the credibility of the witnesses is to be determined by the jury, properly instructed as to the law. Unless this is followed, a defendant is deprived of his constitutional right of a trial by jury." (Gallegos v. People (CO 1957) 316 P2d 884, 885; see also State v. Joyner (CT 1992) 625 A2d 791, 805 [criminal defendant has constitutional right to reveal facts to the jury regarding the mental condition of a witness which may reasonably affect the credibility of the witness]; Taylor v. Illinois (1988) 484 US 400, 430, fn 5 [108 SCt 646; 98 LEd2d 798] (dis. opn. of Brennan, J.) ["The constitutional right to a jury trial would mean little if a judge could exclude any defense witness whose testimony he or she did not credit."].)

    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].]

    Furthermore, this instruction promotes reliability in the jury's disposition of the case, and, therefore, it is predicated upon the Due Process Clause (5th and 14th Amendments) of the federal constitution. (See generally Ohio v. Roberts (1980) 448 US 56, 70 [106 SCt 1121; 65 LEd2d 597] [testimony given under oath and subject to cross-examination bears an "indicia of reliability"]; see also 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

    This instruction is required by the federal constitutional rights to fair trial by jury and due process (5th, 6th and 14th Amendments) which require that the trial judge be fair and impartial and that the jury not convict unless the prosecution has proven every element of the charge beyond a reasonable doubt.

    Although the United States Supreme Court has held that federal judges may comment on the evidence (see Quercia v. U.S. (1933) 289 US 466, 469-70 [53 SCt 698; 77 LEd 1321]; U.S. v. Murdock (1933) 290 US 389, 394 [54 SCt 223; 78 LEd 381]), that practice may unduly influence the jury. (See Alberty v. U.S. (1896) 162 US 499, 511 [16 SCt 864; 40 LEd 1051] [murder conviction reversed because the trial court’s jury instruction overly emphasized the significance of the defendant’s flight]; see also U.S. v. Fuller (4th Cir. 1998) 162 F3d 256, 260.)

    "In expressing an opinion about the guilt of the defendant -- a matter structurally committed to the jury for determination -- the trial judge tends to erode the parties’ perception of impartiality and risks unduly influencing the jury." (Fuller, 162 F3d at 260.)

    Hence, by undermining the fairness and impartiality of the jury's decision, a trial judge’s comments on the evidence may violate the defendant’s federal constitutional rights (5th, 6th and 14th Amendments) to due process and fair trial by jury. (See NCJIC Constitutional Macro 10.1 [Fair And Unbiased Judge].)

    Furthermore, judicial comment also violates these rights to the extent that the comment serves to direct the jury’s finding of any essential fact. (See U.S. v. Gaudin (1995) 515 US 506, 520-23 [115 SCt 2309; 132 LEd2d 444]; see also In re Winship (1970) 397 US 358, 364 [90 SCt 1068; 25 LEd2d 368]; see also NCJIC Constitutional Macro 3.2 [Directed Verdict On Element].)

    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.

    309.5.5    Argumentative Instructions

    This instruction is required by the federal constitutional rights to fair trial by jury and due process (5th, 6th and 14th Amendments) which require that the jury instruction not unfairly favor the prosecution.

    Even if judicial comment does not directly express an opinion about the defendant's guilt, an instruction that is one-sided or unbalanced violates the defendant’s federal constitutional rights under the 5th, 6th and 14th Amendments to due process and a fair, impartial trial by jury. (See Starr v. U.S. (1894) 153 US 614, 626 [14 SCt 919; 38 LEd 841] [trial judge must use great care so that judicial comment does not mislead and "especially that it [is] not...one-sided"]; see also Quercia v. U.S. (1933) 289 US 466, 470 [53 SCt 698; 77 LEd 1321]; U.S. v. Laurins (9th Cir. 1988) 857 F2d 529, 537 [judge’s comments require a new trial if they show actual bias or the jury "perceived an appearance of advocacy or partiality"].)

    "Instructions must not, therefore, be argumentative or slanted in favor of either side [the instructions] should neither 'unduly emphasize the theory of the prosecution, thereby de-emphasizing proportionally the defendant's theory'...nor overemphasize the importance of certain evidence or certain parts of the case." (U.S. v. McCracken (5th Cir. 1974) 488 F2d 406, 414; see also U.S. v. Neujahr (4th Cir. 1999) 173 F3d 853; U.S. v. Dove (2nd Cir. 1990) 916 F2d 41, 45; State v. Pecora (MT 1980) 619 P2d 173, 175 [in prosecution for sexual intercourse without consent, giving instruction, which related to resistance required in order to prove lack of consent and was argumentative and commented on the evidence].)

    These principles are also implicated by allowing instructions which incorporate the prosecution’s argument but disallowing similar instructions offered by the defendant which incorporate the defense arguments. (See Wardius v. Oregon (1973) 412 US 470 [93 SCt 2208; 37 LEd2d 82].)

NOTE: If the instruction constitutes a comment on the defendant's guilt see NCJIC Constitutional Macro 5.4 [Instructions That Comment On The 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.

    309.5.6    Extraneous Evidence

   See NCJIC Constitutional Macro 7.3 [Consideration Of Matters Not Admitted Into Evidence] and NCJIC Constitutional Macro 7.4 [Juror Consideration Of Evidence For An Improper Purpose].

    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.

    309.5.7    Improper Emphasis Of Specific Evidence

    This instruction is required by the federal constitutional rights to a fair trial by jury and due process (5th, 6th and 14th Amendments) which require the jury to consider exculpatory evidence upon which the defendant relies to raise a reasonable doubt as to any element of the charge. (See e.g., Martin v. Ohio (1987) 480 US 228, 234 [107 SCt 1098; 94 LEd2d 267] [instruction that jury could not consider self-defense evidence in determining whether there was a reasonable doubt about the State’s case would violate In re Winship (1970) 397 US 358 [90 SCt 1068; 25 LEd2d 368]]; Rock v. Arkansas (1987) 483 US 44 [107 SCt 2704; 97 LEd2d 37] [domestic rule of evidence may not be used to exclude crucial defense evidence]; Chambers v. Mississippi (1973) 410 US 284 [93 SCt 1038; 35 LEd2d 297]; People v. Bobo (1990) 229 CA3d 1417, 1442 [3 CR2d 747] [legislature cannot deny defendant an opportunity to prove he or she did not possess a statutorily required mental state].)

    These rights are implicated by any procedures and/or instructions place undue emphasis on particular evidence and permit and/or encourage the jurors to convict the defendant without having considered all of the evidence. (See Conde v. Henry (9th Cir. 1999) 198 F3d 734, 739-42 [the right to present evidence is meaningless if the jury is not required to consider it]; see People v. Cox (CA 1991) 53 C3d 618, 695-96 [280 CR 692] ["defendant as well as the prosecution have a right to the reasoned, dispassionate and considered judgment of the jury"]; People v. Manchetti (1946) 29 C2d 452, 462  [175 P2d 533, 539-40].)

    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

    Due process requires proof beyond a reasonable doubt of every essential fact. See NCJIC 270.4 [Reasonable Doubt Standard: General Principles].

      This principle is violated if the jury is not fully and fairly instructed on preliminary findings as to essential fact 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.

    309.5.9    Uncharged Acts: Propensity

    Due process is transgressed by a state rule that "offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." (Medina v. California (1992) 505 US 437, 445-46 [112 SCt 2572;120 LEd2d 353].) The use of "other acts" evidence as character evidence to show that the defendant has criminal propensities, and therefore is by inference likely to have committed the currently charged crimes, has been universally condemned as contrary to firmly established principles of Anglo-American jurisprudence for more than three-hundred years. (See e.g., McKinney v. Rees (9th Cir. 1993) 993 F2d 1378, 1380.)

    The United States Supreme Court has recognized at least twice the unanimous tendency of courts that follow the common law tradition to disallow resort by the prosecution to evidence of a defendant's evil character to establish the probability of his guilt and strongly suggests that introduction of prior crimes evidence solely for the purpose of showing a criminal disposition would violate the due process clause. (Michelson v. U.S. (1948) 335 US 469 [69 SCt 213; 93 LEd 168]; Bell v. Texas (1967) 385 US 554, 572-74 [87 SCt 648; 17 LEd2d 606], conc. and diss. op. of Warren, C.J.; see also Panzavecchia v. Wainwright (5th Cir. 1981) 658 F2d 337; People v. Kelley (CA 1967) 66 C2d 232, 238-39 [57 CR 363].)

    Hence, it has been held that a statute permitting evidence of other charged or uncharged crimes involving victims under 14 years of age to be admitted to show criminal propensity violated the defendant's constitutional right to be tried only on the charged offense. (State v. Burns (MO 1998) 978 SW2d 759, 760-61.) Evidence of uncharged offenses to show propensity is inadmissible because it fosters conviction based on such propensity without regard to whether the defendant is guilty of the charged crime. (Ibid.; but see U.S. v. Enjady (10th Cir. 1998) 134 F3d 1427, 1433-34; People v. Falsetta (CA 1999) 21 C4th 903 [89 CR2d 847] [rejected due process].)

    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.

   309.5.10  Aranda/Bruton   

CAVEAT: To properly preserve a federal constitutional claim, the defendant must explain how the constitutional provision is violated under the circumstances of the case. Therefore, the issues, language and authorities cited below are not a substitute for individual consideration and presentation of each constitutional claim on a case-by-case basis. Counsel should also independently consider and research whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.

*Insert bold text into Points and Authorities:

    This request is based, inter alia, on the Due Process, Trial By Jury, Confrontation, Compulsory Process and Right to Counsel Clauses of the California Constitution (Art I, §§7, 15 and 16) and the federal constitution (5th, 6th and 14th Amendments), as applied to California through the Incorporation Doctrine. (Duncan v. Louisiana (1968) 391 US 145 [20 LEd2d 491; 88 SCt 1444]; see also Tennessee v. Lane (2004) 541 US 509, 562 [158 LEd2d 820; 124 SCt 1978].)

    Unless this instructional request is granted, the instructions will abridge the defendant's rights under the above constitutional provisions by violating the defendant's right to confront the hearsay statements of a codefendant. (See Bruton v. U.S. (1968) 391 US 123 [20 LEd2d 476; 88 SCt 1620]; People v. Aranda (1965) 63 C2d 518.)

    This request is also based on the 14th Amendment's Due Process Clause which is violated by:

    (1) The arbitrary denial of a state created right. (Hicks v. Oklahoma (1980) 447 US 343 [65 LEd2d 175; 100 SCt 2227].)

    (2) Multiple errors of state law which cumulatively render the trial unfair. (Greer v. Miller (1987) 483 US 756, 765 [107 SCt 3092; 97 LEd2d 618]; Taylor v. Kentucky (1978) 436 US 478, 488 [98 SCt 1930; 56 LEd2d 468]; Mak v. Blodgett (9th Cir. 1992) 970 F2d 614, 622; People v. Hill (1998) 17 C4th 800, 844-45.)

    Furthermore, because this instruction request is necessary to assure the reliability of the jury's disposition of this case, it is required by the above provisions of the federal constitution. (See generally Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354]; White v. Illinois (1992) 502 US 346, 363-64 [112 SCt 736; 116 LEd2d 848]; Donnelly v. DeChristoforo (1974) 416 US 637, 646 [94 SCt 1868; 40 LEd2d 431]; Thompson v. City of Louisville (1960) 362 US 199, 204 [80 SCt 624; 4 LEd2d 654].)

    If this instruction request is not granted, there is a reasonable likelihood that the jury will apply the instructions in a way that will prejudicially violate the defendant's federal constitutional rights. (Estelle v. McGuire (1991) 502 US 62 [116 LEd2d 385; 112 SCt 475]; McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 839.)

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 indiv    idual 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.