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VOLUME 18 - CHAPTER 309
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Macro 309.6      Due Process: Fairness, Notice, Etc.

    Macro 6.1   Due Process And Notice -- Generally
    Macro 6.2   Due Process: Notice -- Ambiguous Or Misleading Charging Document
    Macro 6.3   Arbitrary Denial Of State Created Right
    Macro 6.4   Cumulative Effect Of State Errors As Violation Of Federal Due Process
    Macro 6.5   Instructions Must Be Balanced Between Defense And Prosecution
    Macro 6.6   Balance Between Codefendants
    Macro 6.7   Reliability Of Conviction And Sentence Guaranteed By Due Process
    Macro 6.8   Prosecution Destruction Or Suppression Of Evidence

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VOLUME 18 - CHAPTER 309

    This instruction is required by the defendant’s federal constitutional rights to a fair trial by jury and due process (5th, 6th and 14th Amendments) which require that the procedures utilized in a criminal trial be fair. (See Gray v. Mississippi (1987) 481 US 648, 668 [107 SCt 2045; 95 LEd2d 622]; U.S. v. Fuller (4th Cir. 1998) 162 F3d 256, 259; Wardius v. Oregon (1973) 412 US 470 [93 SCt 2208; 37 LEd2d 82].)

    These rights are implicated by procedures, instructions and/or absence of instructions which allow the jury to convict the defendant without fair notice of the charges or other essential matters. (See generally, Lankford v. Idaho (1991) 500 US 110, 119-27 [111 SCt 1723;114 LEd2d 173]; Lanzetta v. New Jersey (1939) 306 US 451, 453 [59 SCt 618; 83 LEd 888]; Kolender v. Lawson (1983) 461 US 352, 357-60 [103 SCt 1855; 75 LEd2d 903]; see also Cole v. Arkansas (1948) 333 US 196, 201-02 [68 SCt 514; 92 LEd 644]; Hamling v. U.S. (1974) 418 US 87, 117-18 [94 SCt 2887; 41 LEd2d 590]; Lambert v. California (1957) 355 US 225 [78 SCt 240; 2 LEd2d 228].)

    "Ingrained in our concept of due process is the requirement of notice." (Lambert v. California (1957) 355 US 225, 228 [78 SCt 240; 2 LEd2d 228].)

    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.

FORECITE National™
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VOLUME 18 - CHAPTER 309

    309.6.2    Due Process: Notice -- Ambiguous Or Misleading Charging Document

    This instruction is required by the Due Process Clause of the federal constitution (5th and 14th Amendments). A person’s right to reasonable notice of the charge, and an opportunity to be heard in defense -- a right to his day in court -- are basic in our system of jurisprudence. (See Lankford v. Idaho (1991) 500 US 110, 119-27 [111 SCt 1723;114 LEd2d 173]; Cole v. Arkansas (1948) 333 US 196, 201-02 [68 SCt 514; 92 LEd 644]; In re Oliver (1948) 333 US 257, 273 [68 SCt 499, 507; 92 LEd 682]; Gray v. Raines (9th Cir. 1981) 662 F2d 569, 571.)

    Hence, the due process clause of the federal constitution is implicated by procedures, instructions or the lack of instructions which allow the jury to convict based on a theory or charge as to which the defense was given inadequate notice.

    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.

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VOLUME 18 - CHAPTER 309

    309.6.3    Arbitrary Denial Of State Created Right

    Fourteenth Amendment due process principles may be implicated by the state’s arbitrary denial of its own domestic rules. (Board of Pardons v. Allen (1987) 482 US 369, 373-78 [107 SCt 2415; 96 LEd2d 303]; Daniels v. Williams (1986) 474 US 327, 329-30 [106 SCt 662; 88 LEd2d 662]; Hicks v. U.S. (1980) 447 US 343 [100 SCt 2227; 65 LEd2d 175].)

    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.

FORECITE National™
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VOLUME 18 - CHAPTER 309

    309.6.4    Cumulative Effect Of State Errors As Violation Of Federal Due Process

    This instruction is required by the federal constitution (5th and 14th Amendments). State law errors that might not be so prejudicial as to amount to a deprivation of due process when considered alone, may cumulatively produce a trial setting that is fundamentally unfair. (See 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]; Donnelly v. DeChristoforo (1974) 416 US 637, 642-45 [94 SCt 1868; 40 LEd2d 41]; Mak v. Blodgett (9th Cir. 1992) 970 F2d 614, 622; Marshall v. Walker (1983) 464 US 951, 962 [104 SCt 367; 78 LEd2d 327].)

    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].]

    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.

FORECITE National™
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VOLUME 18 - CHAPTER 309

    This instruction is required by the Due Process Clause of the federal constitution which precludes trial procedures which unjustifiably favor the prosecution. (See Wardius v. Oregon (1973) 412 US 470 [93 SCt 2208; 37 LEd2d 82].) Although Wardius involved reciprocal discovery rights, the same principle should apply to jury instructions. (See People v. Moore (CA 1954) 43 C2d 517, 526-27 [275 P2d 485] ["There should be absolute impartiality as between the People and the defendant in the matter of instructions"]; accord, Reagan v. United States (1895) 157 US 301, 310 [15 SCt 610; 39 LEd 709].) Therefore, instructions which give an unfair advantage to the prosecution violate the "balance" required by Wardius and implicate due process. (14th Amendment.)

    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.

FORECITE National™
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VOLUME 18 - CHAPTER 309

    309.6.6    Balance Between Codefendants

    This instruction is required by the federal constitutional rights to a fair trial by jury and due process (5th, 6th and 14th Amendments). These constitutional principles require that the trial be balanced and impartial as between the prosecution and the defendant. (See Wardius v. Oregon (1973) 412 US 470 [93 SCt 2208; 37 LEd2d 82].) The same principles which require this balance between the defendant and the prosecution should also require balance between the defendant and other codefendants. (See e.g., U.S. v. Tagalicud (9th Cir. 1996) 84 F3d 1180, 1185-86 [using only one of several defendants as example for explaining elements of the offense improperly implied that the case against that defendant was stronger or more important].)

    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.

FORECITE National™
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VOLUME 18 - CHAPTER 309

    309.6.7    Reliability Of Conviction And Sentence Guaranteed By Due Process

    This instruction is required by the Due Process Clause of the federal constitution which requires that a jury verdict which imposes criminal liability be reliable.

    "Reliability is ... a due process concern." (White v. Illinois (1992) 502 US 346, 363-64 [112 SCt 736; 116 LEd2d 848].) Hence, the Due Process clauses of the federal constitution (5th and 14th Amendments) require that criminal convictions be reliable and trustworthy. (See Donnelly v. DeChristoforo (1974) 416 US 637, 646 [94 SCt 1868; 40 LEd2d 431] and cases collected at fn 22 [due process "cannot tolerate" convictions based on false evidence]; Thompson v. City of Louisville (1960) 362 US 199, 204 [80 SCt 624; 4 LEd2d 654].)

    See also FORECITE National™ 300.1.16 [Reliability Of Conviction And Sentence Guaranteed By 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: 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].]

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.

FORECITE National™
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VOLUME 18 - CHAPTER 309

    309.6.8    Prosecution Destruction Or Suppression Of Evidence

    This instruction is required by the federal constitutional rights to due process, compulsory process and a fair trial by jury (5th, 6th and 14th Amendments) which preclude the government from depriving the defendant of material evidence.

    These rights are violated by bad faith destruction or suppression of evidence. (See Arizona v. Youngblood (1988) 488 US 51 [110 SCt 2715; 102 LEd2d 281]; California v. Trombetta (1984) 467 US 479 [104 SCt 2328; 81 LEd2d 413].) They are also violated by intentional or negligent failure to disclose potentially exculpatory evidence. (See Kyles v. Whitley (1995) 514 US 419, 435-37 [115 SCt 1555; 131 LEd2d 490]; Brady v. Maryland (1963) 373 US 83 [83 SCt 1194; 10 LEd2d 215].)

    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.