CALJIC 1.02: STATEMENTS OF COUNSEL--EVIDENCE STRICKEN OUT--INSINUATIONS OF QUESTIONS--STIPULATED FACTS (previous instruction)
Statements made by the attorneys during the trial are not evidence. [However, if the attorneys have stipulated or agreed to a fact, you must regard that fact as proven [as to the party or parties making the stipulation].]
If an objection was sustained to a question, do not guess what the answer might have been. Do not speculate as to the reason for the objection.
Do not assume to be true any insinuation suggested by a question asked a witness. A question is not evidence and may be considered only as it helps you to understand the answer.
Do not consider for any purpose any offer of evidence that was rejected, or any evidence that was stricken by the court; treat it as though you had never heard of it.
CALCRIM 104. Evidence (new instruction)
You must decide what the facts are in this case. You must use only
the evidence that is presented in the courtroom [or during a jury
view]. “Evidence” is the sworn testimony of witnesses, the exhibits
admitted into evidence, and anything else I tell you to consider as
evidence.
Nothing that the attorneys say is evidence. In their opening statements
and closing arguments, the attorneys will discuss the case, but their
remarks are not evidence. Their questions are not evidence. Only the
witnesses’ answers are evidence. The attorneys’ questions are
significant only if they help you understand the witnesses’ answers. Do
not assume that something is true just because one of the attorneys
asks a question that suggests it is true.
During the trial, the attorneys may object to questions asked of a
witness. I will rule on the objections according to the law. If I
sustain an objection, the witness will not be permitted to answer, and
you must ignore the question. If the witness does not answer, do not
guess what the answer might have been or why I ruled as I did. If I
order testimony stricken from the record you must disregard it and must
not consider that testimony for any purpose.
...
COMMENTS: Note the odd sentence structure and complexity
of
the CALJIC language, especially the sentence: "Do not assume to be true
any insinuation suggested by a question asked a witness." We
tried
not just to modernize the language, but also to improve the
organization of the instructions
by starting with an introductory statement, if appropriate, and in any
event by stating the most important propositions first, then the
exceptions.
This is generally accepted as the most intuitive way to present
information.
CALJIC often starts with an exception, and ends with the general
proposition.
In fact, in this example it begins by saying what is not
evidence. The new instruction starts with the basic proposition
that it is up to jurors to decide what the facts are, and that they
must do so based on the evidence that was admitted.
Evidence consists of testimony of witnesses, writings, material objects, or anything presented to the senses and offered to prove the existence or non-existence of a fact.
Evidence is either direct or circumstantial.
Direct evidence is evidence that directly proves a fact. It is evidence which by itself, if found to be true, establishes that fact.
Circumstantial evidence is evidence that, if found to be true, proves a fact from which an inference of the existence of another fact may be drawn.
An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts established by the evidence.
It is not necessary that facts be proved by direct
evidence.
They may be proved also by circumstantial evidence or by a combination
of direct and circumstantial evidence. Both direct and
circumstantial
evidence are acceptable as a means of proof. Neither is entitled
to any greater weight than the other.
CALCRIM 223. Direct and Circumstantial Evidence Defined (new instruction)
Facts may be proved by direct or circumstantial evidence or by a combination of both. Direct evidence can prove a fact by itself. For example, if a witness testifies he saw it raining outside before he came into the courthouse, that testimony is direct evidence that it was raining. Circumstantial evidence also may be called indirect evidence. Circumstantial evidence does not directly prove the fact to be decided, but is evidence of another fact or group of facts from which you may conclude the truth of the fact in question. For example, if a witness testifies that he saw someone come inside wearing a raincoat covered with drops of water, that testimony is circumstantial evidence because it may support a conclusion that it was raining outside.COMMENTS: Judges almost universally report that when they
give this instruction (ie, the CALJIC version), the eyes of the jury
glaze over. Here, the
problem is not just complex language, but the fact that the distinction
between direct and circumstantial evidence itself is often not very
clear.
For example, if I see what I know for sure are coyote tracks in the
sand,
the tracks are circumstantial evidence from which I can infer that a
coyote
passed this way. If I see a coyote walking past, that is
considered
direct evidence. But what if I hear coyotes howling at night? Is
that direct or indirect (circumstantial) evidence that there were
coyotes
in the area?
In any event, it seems to me that our
instructions
is a definite improvement. What can help jurors understand a
complicated concept is some good examples. Judges, however, tend
to be reluctant to give examples, for fear that they might not be
balanced in some way, or might be prejudicial
in a specific case. It seems to me that it is very hard to
understand circumstantial evidence without an example, and the
committee eventually agreed. On the other hand, this is probably
the only instruction that has an example.
Every person who testifies under oath [or affirmation] is a witness. You are the sole judges of the believability of a witness and the weight to be given the testimony of each witness.
In determining the believability of a witness you may consider anything that has a tendency to prove or disprove the truthfulness of the testimony of the witness, including but not limited to any of the following:
The extent of the opportunity or ability of the witness to see or hear or otherwise become aware of any matter about which the witness testified;
The ability of the witness to remember or to communicate any matter about which the witness testified;
The character and quality of that testimony;
The demeanor and manner of the witness while testifying;
The existence or nonexistence of a bias, interest, or other
motive...
CALCRIM 105. Witnesses (new instruction)
You alone must judge the credibility or believability of the
witnesses. In deciding whether testimony is true and accurate, use your
common sense and experience. The testimony of each witness must be
judged by the same standard. You must set aside any bias or prejudice
you may have, including any based on the witness’s gender, race,
religion, or national origin, [or ___________ <insert any other
impermissible bias as appropriate>]. You may believe all, part, or
none of any witness’s testimony. Consider the testimony of each witness
and decide how much of it you believe.
In evaluating a witness’s testimony, you may consider anything that
reasonably tends to prove or disprove the truth or accuracy of that
testimony. Among the factors that you may consider are:
• How well could the witness see, hear, or otherwise
perceive the things about which the witness testified?
• How well was the witness able to remember and
describe what happened?
• What was the witness’s behavior while
testifying?
• Did the witness understand the questions and answer
them directly?
• Was the witness’s testimony influenced by a factor
such as bias or prejudice, a personal relationship with someone
involved in the case, or a personal interest in how the case is decided?
• What was the witness’s attitude about the case or
about testifying?
• Did the witness make a statement in the past that
is consistent or inconsistent with his or her testimony?
• How reasonable is the testimony when you consider
all the other evidence in the case?
• [Did other evidence prove or disprove any fact
about which the witness testified?]
• [Did the witness admit to being untruthful?]
• [What is the witness’s character for truthfulness?]
• [Has the witness been convicted of a felony?]
• [Has the witness engaged in [other] conduct that
reflects on his or her believability?]
• [Was the witness promised immunity or leniency in
exchange for his or her testimony?]
COMMENTS: In my view, the CALJIC instruction is overly abstract, stating general principles of credibility ("you should consider...the ability of the witness to remember...") rather than presenting the jurors with specific questions they should ask themselves ("how well was the witness able to remember..."). There are also some rather formal phrases ("demeanor and manner") in CALJIC; compare our committee's use of the term "behavior," which seems to mean essentially the same.
Discrepancies in a witness's testimony or between a witness's
testimony and that of other witnesses, if there were any, do not
necessarily
mean that [any] [a] witness should be discredited. Failure of
recollection
is common. Innocent misrecollection is not uncommon. Two persons
witnessing an incident or a transaction often will see or hear it
differently.
Whether a discrepancy pertains to an important matter or only to
something
trivial should be considered by you.
CALCRIM 105: Witnesses (new instruction)
....
Do not automatically reject testimony just because
of inconsistencies or conflicts. Consider whether the differences
are important or not. People sometimes honestly forget things or
make mistakes about what they remember. Also, two people may witness
the same event yet see or hear it differently.
COMMENTS: This is one of my favorite examples of
"caljicese."
What does "discredit" mean for most people? In ordinary speech,
it
usually means to lose face ("she was completely discredite").
Here
it means not to believe. Note also that the sentence is in the
passive
voice ("be discredited"), which does not make clear who should be doing
the discrediting. Note that our proposed instruction speaks
directly
to the jury: "do not automatically reject testimony..."
The short phrase "failure of recollection"
contains
no less than two nominalized verbs (noun derived from verbs: failure
from
fail, and recollection from recollect). Generally it is
preferable
to use a verb directly. And "remember" is a more ordinary word
than
"recollect." In other words, people sometimes fail to remember
things.
"Innocent misrecollection is not uncommon" has
no less than three negative elements in one very short sentence (mis-,
un-, and not). Moreover, "misrecollection" is not even in my
dictionary.
Though the CALJIC instruction has an almost poetic symmetry, the
proposed
instruction strikes me as far more comprehensible.
A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether [his] [her] guilt is satisfactorily shown, [he] [she] is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving [him] [her] guilty beyond a reasonable doubt.
Reasonable doubt is defined as follows: It is not a
mere
possible doubt; because everything relating to human affairs is
open
to some possible or imaginary doubt. It is that state of the case
which, after the entire comparison and consideration of all the
evidence,
leaves the minds of the jurors in that condition that they cannot say
they
feel an abiding conviction of the truth of the charge.
CALCRIM 220. Reasonable Doubt (new instruction)
The fact that a criminal charge has been filed against the
defendant[s] is not evidence that the charge is true. You must not be
biased against the defendant[s] just because (he/she/they) (has/have)
been arrested, charged with a crime, or brought to trial.
A defendant in a criminal case is presumed to be innocent. This
presumption requires that the People prove each element of a crime [and
special allegation] beyond a reasonable doubt. Whenever I tell you the
People must prove something, I mean they must prove it beyond a
reasonable doubt [unless I specifically tell you otherwise].
Proof beyond a reasonable doubt is proof that leaves you with an
abiding conviction that the charge is true. The evidence need not
eliminate all possible doubt because everything in life is open to some
possible or imaginary doubt.
In deciding whether the People have proved their case beyond a
reasonable doubt, you must impartially compare and consider all the
evidence that was received throughout the entire trial. Unless the
evidence proves the defendant[s] guilty beyond a reasonable doubt,
(he/she/they) (is/are) entitled to an acquittal and you must find
(him/her/them) not guilty.
COMMENTS: This is obviously a very important and difficult instruction. I would have preferred to adopt the standard used by the model instructions of the Ninth Circuit, as well as some other jurisdictions, which simply tells jurors they must be "firmly convinced" of the truth of the charge. It is elegant in its simplicity and, in my view, says it all. California, however, has a statutory definition of reasonable doubt in Penal Code section 1096. We felt compelled to use the statutory language, although the committee did rearrange the wording to make it more comprehensible. Indeed, in my view the organization of the new instruction (for which I take no credit) is vastly improved. For further comments on the reasonable doubt instruction, see my book: Peter Tiersma, Legal Language, pp. 194-6 (1999).
Defendant is accused [in Count[s] _______] of having
committed
the crime of being an accessory to a felony in violation of section 32
of the Penal Code.
Every person who, after a felony has been committed, harbors,
conceals, or aids a principal in that felony, with the specific intent
that the principal may avoid or escape from arrest, trial, conviction
or
punishment, having knowledge that the principal has committed that
felony
or has been charged with that felony or convicted thereof, is guilty of
the crime of accessory to a felony in violation of Penal Code section
32.
In order to prove this crime, each of the following elements
must be proved:
1. A felony, namely, ______________ was committed;
2. Defendant harbored, concealed or aided a principal in that
felony with the specific intent that the principal avoid or escape
[arrest]
[trial] [conviction or punishment]; and
3. Defendant did so with knowledge that the principal [committed
the felony] [was charged with having committed the felony] [was
convicted
of having committed the felony].
CALCRIM 440. Accessories (new instruction)
COMMENTS: We decided here to avoid the use of the
word
"principal," which sounds too much like the head of a school, and to
instead
use the more understandable term "perpetrator". As is often the
case,
the CALJIC instruction quotes the relevant penal code section and later
lists the elements of the crime. This is potentially confusing,
because
jurors may not realize that they are hearing the requirements twice, in
somewhat different words. The new instructions present the
requirements
only once and do not quote the statute.
You will note that both instructions use the
terms "harbor, conceal, or aid." These verbs come verbatim from
Penal
Code section 32. I would have liked to see the committee use the
more ordinary "hide" for "conceal," and "help" instead of the somewhat
less common "aid." No one on the committee knew exactly what
"harbor"
means in this context. (I proposed using "shelter," which seems
close
enough, and is more understandable.) This led to a lively
discussion
about whether there is any real difference between helping and aiding,
or between hiding and concealing. It seems to me that there is no
relevant difference, but other committee members were very reluctant to
deviate from the statutory language even though no one could point to
any
real difference between these words. In this case, as the
new instruction shows, the decision was made to quote the statutory
language
verbatim.
A person who while unconscious commits what would otherwise be a criminal act, is not guilty of a crime.
This rule of law applies to persons who are not conscious of acting but who perform acts while asleep or while suffering from a delirium of fever, or because of an attack of [psychomotor] epilepsy, a blow on the head, the involuntary taking of drugs or the involuntary consumption of intoxicating liquor, or any similar cause.
Unconsciousness does not require that a person be incapable of movement.
Evidence has been received which may tend to show that the
defendant
was unconscious at the time and place of the commission of the alleged
crime for which [he] [she] is here on trial. If, after a
consideration
of all the evidence, you have a reasonable doubt that the defendant was
conscious at the time the alleged crime was committed, [he] [she] must
be found not guilty.
CALCRIM 3425. Unconsciousness (new instruction)
The defendant is not guilty of __________ <insert crime> if (he/she) acted while legally unconscious. Someone is legally unconscious when he or she is not conscious of his or her actions. [Someone may be unconscious even though able to move.]COMMENTS: We tried to make it clear here that the legal meaning of "unconscious" differs from the ordinary meaning.
The defendant has been found guilty of the crime[s] of ______________.
You must now determine whether [he] [she] was legally sane or legally insane at the time of the commission of the crime[s]. This is the only issue for you to determine in this proceeding.
You may consider evidence of [his] [her] mental condition before, during and after the time of the commission of the crime, as tending to show the defendant's mental condition at the time the crime[s] [was] [were] committed.
[Mental illness and mental abnormality, in whatever form either may appear, are not necessarily the same as legal insanity. A person may be mentally ill or mentally abnormal and yet not be legally insane.]
A person is legally insane when by reason of mental disease
or
mental defect [he] [she] was incapable of either:
1. Knowing the nature and quality of [his] [her] act;
or
2. Understanding the nature and quality of [his] [her]
act;
or
3. Distinguishing right from wrong;
at the time of the commission of the crime.
The defendant has the burden of proving [his] [her] legal
insanity
at the time of the commission of [the] [a] crime by a preponderance of
the evidence.
CALCRIM 3450. Insanity: Determination, Effect of Verdict (new
instruction)
You have found the defendant guilty of ___________ <insert
crime>. Now you must decide whether (he/she) was legally insane when
(he/she) committed the crime[s].
The defendant must prove that it is more likely than not that (he/she)
was legally insane when (he/she) committed the crime[s].
The defendant was legally insane if:
1. When (he/she) committed the crime[s], (he/she) had
a mental disease or defect;
AND
2. Because of that disease or defect, (he/she)
did not know or understand the nature and quality of (his/her) act or
did not know or understand that (his/her) act was morally or legally
wrong.
None of the following qualify as a mental disease or defect for
purposes of an insanity defense: personality disorder, adjustment
disorder, seizure disorder, or an abnormality of personality or
character made apparent only by a series of criminal or antisocial acts.
You may consider any evidence that the defendant had a mental
disease or defect before the commission of the crime[s]. If you are
satisfied that (he/she) had a mental disease or defect before (he/she)
committed the crime[s], you may conclude that (he/she) suffered from
that same condition when (he/she) committed the crime[s]. You must
still decide whether that mental disease or defect constitutes legal
insanity.
If, after considering all the evidence, all twelve of you conclude
the defendant has proved that it is more likely than not that (he/she)
was legally insane when (he/she) committed the crime[s], you must
return a verdict of not guilty by reason of insanity.
COMMENTS: The new instruction is less
stilted
than the original CALJIC instruction, in my view. The legal standard is
essentially the same; our job is not to change the law. One
important
linguistic difference is that CALJIC uses the difficult phrase
"preponderance
of the evidence." We avoid the phrase altogether by simply
stating
that it must be "more likely than not," which is how "preponderance of
the evidence" is generally defined.
A verdict of "not guilty by reason of insanity" does not mean
the defendant will be released from custody. Instead, [he] [she]
will remain in confinement while the courts determine whether [he]
[she]
has fully recovered [his] [her] sanity. If [he] [she] has not,
[he]
[she] will be placed in a hospital for the mentally disordered or other
facility, or in outpatient treatment, depending
upon the seriousness of [his] [her] present mental illness.
Moreover, [he] [she] cannot be removed from that placement unless and until the court determines and finds the defendant's sanity has been fully restored, in accordance with the law of California, or until the defendant has been confined for a period equal to the maximum period of imprisonment which could have been imposed had [he] [she] been found guilty.
So that you will have no misunderstandings relating to a verdict of not guilty by reason of insanity, you have been informed as to the general scheme of our mental health laws relating to a defendant, insane at the time of [his] [her] crimes. What happens to the defendant under these laws is not to be considered by you in determining whether the defendant was sane or not at the time [he] [she] committed [his] [her] crime[s]. Do not speculate as to if, or when, the defendant will be found sane.
You are not to decide whether the defendant is now sane. You are to decide only whether the defendant was sane at the time [he] [she] committed [his] [her] crime[s]. If upon consideration of the evidence, you believe defendant was insane at the time [he] [she] committed [his] [her] crime[s], you must assume that those officials charged with the operation of our mental health system will perform their duty in a correct and responsible manner, and that they will not release this defendant unless [he] [she] can be safely returned into society.
It is a violation of your duty as jurors if you find the defendant sane at the time [he] [she] committed [his] [her] offense[s] because of a doubt that the Department of Mental Health or the courts will properly carry out their responsibilities.
CALCRIM New instruction (part of 3450, above)
If you find the defendant was legally insane at the time of
(his/her) crime[s], (he/she) will not be released from custody until a
court finds (he/she) qualifies for release under California law. Until
that time (he/she) will remain in a mental hospital or outpatient
treatment program, if appropriate. (He/She) may not, generally, be kept
in a mental hospital or outpatient program longer than the maximum
sentence available for (his/her) crime[s]. If the state requests
additional confinement beyond the maximum sentence, the defendant will
be entitled to a new sanity trial before a new jury. Your job is only
to decide if the defendant was legally sane or insane at the time of
the crime[s]. You must not speculate as to whether (he/she) is
currently sane or may be found sane in the future. You must not let any
consideration about where the defendant may be confined, or for how
long, affect your decision in any way.
COMMENTS: Our new statement is briefer
than
the CALJIC instruction. It avoids awkward phrasing (in the
passive
voice) like: "What happens to the defendant under these laws is not
to be considered by you in determining whether the defendant was
sane..."
Instead, the new instruction states much more clearly: "You
must not let any consideration about where the defendant may be
confined,
or for how long, affect your decision in any way."
[Defendant is accused [in Count[s] _______] of having committed the crime of murder, a violation of Penal Code section 187.]
Every person who unlawfully kills a human being with malice aforethought is guilty of the crime of murder in violation of section 187 of the Penal Code.
A killing is unlawful, if it is neither justifiable nor excusable.
In order to prove this crime, each of the following elements
must be proved:
1. A human being was killed;
2. The killing was unlawful; and
3. The killing was done with malice aforethought.
CALJIC 8.11 "MALICE AFORETHOUGHT"--DEFINED
"Malice" may be either express or implied.
[Malice is express when there is manifested an intention unlawfully
to kill a human being.]
[Malice is implied when:
1. The killing resulted from an intentional act,
2. The natural consequences of the act are dangerous to human
life, and
3. The act was deliberately performed with knowledge of the
danger to, and with conscious disregard for, human life.]
[When it is shown that a killing resulted from the intentional doing of an act with express or implied malice, no other mental state need be shown to establish the mental state of malice aforethought.]
The mental state constituting malice aforethought does not necessarily require any ill will or hatred of the person killed.
The word "aforethought" does not imply deliberation or the lapse of considerable time. It only means that the required mental state must precede rather than follow the act.
CALCRIM 520. Murder With Malice Aforethought (new instruction)
The defendant is charged [in Count __] with murder.COMMENTS: Note the very impersonal phrasing
(and passive
construction) in the CALJIC instruction: "Malice is express when
there
is manifested an intention unlawfully to kill a human being." In
other words, the defendant must have intended to kill the victim.
I suppose that this is becoming my mantra: if that is what you mean,
why
not just say so?
Also, observe again the abstact quality of
the CALJIC instruction. It requires the jury to decide whether "a
human being" was killed, and that the killing was done with malice
aforethought.
Of course, what the jury has to decide is whether the defendant
killed a human being, and whether the defendant killed with
malice
aforethought.
The new instruction continues to
use the distinction between express and implied malice, even though it
seems to me that this is burdening the jury with unnecessary
terminology. I can see no reason for the jury to decide whether
malice was express or implied--this
unnecessarily complicates their task. All they have to decide is
whether the defendant killed intentionally, or intentionally did an act
that he knew was dangerous, etc. But the distinction is so
ingrained that--after receiving public comment--the committee decided
to retain it.
CALJIC 8.20 DELIBERATE AND PREMEDITATED MURDER (previous instruction)
All murder which is perpetrated by any kind of willful, deliberate and premeditated killing with express malice aforethought is murder of the first degree.
The word "willful," as used in this instruction, means intentional.
The word "deliberate" means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action. The word "premeditated" means considered beforehand.
If you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is murder of the first degree.
The law does not undertake to measure in units of time the length of the period during which the thought must be pondered before it can ripen into an intent to kill which is truly deliberate and premeditated. The time will vary with different individuals and under varying circumstances.
The true test is not the duration of time, but rather the extent of the reflection. A cold, calculated judgment and decision may be arrived at in a short period of time, but a mere unconsidered and rash impulse, even though it includes an intent to kill, is not deliberation and premeditation as will fix an unlawful killing as murder of the first degree.
To constitute a deliberate and premeditated killing, the
slayer
must weigh and consider the question of killing and the reasons for and
against such a choice and, having in mind the consequences, [he] [she]
decides to and does kill.
CALCRIM 521. Murder: Degrees (new instruction; some options omitted)
If you decide that the defendant has committed murder, you must
decide whether it is murder of the first or second degree.
The defendant is guilty of first degree murder if the People have
proved that (he/she) acted willfully, deliberately, and with
premeditation. The defendant acted willfully if (he/she) intended to
kill. The defendant acted deliberately if (he/she) carefully weighed
the considerations for and against (his/her) choice and, knowing the
consequences, decided to kill. The defendant acted with premeditation
if (he/she) decided to kill before committing the act that caused death.
The length of time the person spends considering whether to kill does
not alone determine whether the killing is deliberate and premeditated.
The amount of time required for deliberation and premeditation may vary
from person to person and according to the circumstances. A decision to
kill made rashly, impulsively, or without careful consideration of the
choice and its consequences is not deliberate and premeditated. On the
other hand, a cold, calculated decision to kill can be reached quickly.
The test is the extent of the reflection, not the length of time.
[other alternatives, such as killing by torture, are omitted]
COMMENTS: Another example of overly flowerly CALJIC
language: "The law does not undertake to measure in units of time
the
length of the period during which the thought must be pondered before
it
can ripen into an intent to kill which is truly deliberate and
premeditated."
This would be fine in a judicial opinion, but is hardly ordinary
English. Consider the proposed alternative expression of this
idea:
"The length of time the person spends considering whether to kill
does
not alone determine whether the killing is deliberate and
premeditated."
[Defendant is accused [in Count[s] _______] of having committed the crime of arson which caused [great bodily injury to another] [[a] [an] [inhabited] [structure] [property] [forest land] to burn], a violation of section 451, subdivision [(a)][(b)][(c)][(d)] of the Penal Code.]
Any person who [willfully and maliciously [sets fire to] [or] [burns] [or] [causes to be burned]] [or] [[aids] [counsels] [procures] the burning of] any [structure] [forest land] [property] and by so doing causes [great bodily injury] [or] [[a] [an] [inhabited] [structure] [or] [property] [forest land] to burn] is guilty of arson in violation of Penal Code section 451, subdivision [(a)] [(b)] [(c)] [(d)]. ...
[definitions of "willfully" and "maliciously" are omitted]
In order to prove this crime, each of the following elements must be proved:
1. A person [set fire to] [or] [burned] [or] [caused to be burned] [or] [[aided] [counseled] [procured] the burning of] a [structure] [forest land] [property]; [and]
2. The [fire was set] [or] [burning was done] willfully and maliciously [.] [; and
3. The fire caused [great bodily injury to another] [a] [an]
[inhabited]
[structure] [property] to burn].
CALCRIM 1052. Arson: Inhabited Structure (new instruction)
The defendant is charged [in Count __] with arson that burned an
inhabited structure.
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant set fire to or burned [or
(counseled[,]/ [or] helped[,]/ [or] caused) the burning of] (a
structure/forest land/property);
2. (He/She) acted willfully and maliciously;
AND
3. The fire burned an inhabited structure.
To set fire to or burn means to damage or destroy with fire either all
or part of something, no matter how small the part.
Someone commits an act willfully when he or she does it willingly or on
purpose.
Someone acts maliciously when he or she intentionally does a wrongful
act or when he or she acts with the unlawful intent to defraud, annoy,
or injure someone else.
A structure is any (building/bridge/tunnel/power plant/commercial or
public tent.)
A structure is inhabited if someone lives there and either is present
or has left but intends to return.
COMMENTS: This example is given to show how we
present
the elements of the crime. Note that CALJIC generally begins with
a word-for-word recitation of the penal code, then continues (I
simplify
the presentation by presenting one alternative, as in an actual
trial):
In order to prove this crime, each of the
following elements must be proved:
1. A person set fire to a structure; and
2. The fire was set willfully and maliciously; and
3. The fire caused an inhabited structure to burn.
Observe that this instruction is quite abstract and does not really
tell the jury what it must decide. By using a passive in the
introductory
clause ("the following elements must be proved...") it fails to
identify
who must prove the elements (i.e, the prosecutor). In addition,
it
refers to "a person"--this is actually the defendant, so why not just
say
so? The jury does not decide whether "a person" set a fire, but
whether
the defendant did it! Moreover, element 2 is also a passive
construction
("was set")--why not just say that the defendant must have acted
willfully?
That is the issue, isn't it?
I believe that our "template" for elements of
crimes is quite a bit more direct, and thus clearer (again, only one
alternative
is presented):
The defendant is charged [in Count __] with arson
that burned an inhabited structure.
To prove that the defendant is guilty of this crime, the
People must prove that:
1. The defendant set fire to or burned [or
(counseled[,]/ [or]
helped[,]/ [or] caused) the burning of] (a structure/forest
land/property);
2. (He/She) acted willfully and maliciously;
AND
3. The fire burned an inhabited structure.
This instruction clearly states who must prove
the case, as well as reminding the jury of the burden of proof.
It
directly tells the jury what to decide: did the defendant burn a
structure,
and if so, did she act willfully and maliciously?
All of the brackets in both the CALJIC and our
instructions, which represent alternative possibilities, may seem
confusing.
Remember that the judge will decide which alternatives are appropriate
and will present the jury with an instruction like that directly above,
with brackets removed and only the relevant alternatives included.
Death Penalty
Instructions:
Finally, consider how CALJIC and the new
instructions define the term "mitigation." This is a critical
concept in death penalty law, because the jury has to decide whether to
put someone to death, or whether to sentence them instead to life in
prison. The jury does so by balancing the aggravating factors
against any mitigating factors. Unfortunately, as I showed in an
article a while back, many California death penalty jurors do not
understand the concept of mitigation (Peter Tiersma, Dictionaries and
Death: Do Jurors Understand Mitigation?, 1995 Utah Law Review 1).
If you read the CALJIC definition, you'll see why:
CALJIC 8.88. Penalty
Trial--Concluding Instruction (definition of mitigation only; rest
omitted):
A mitigating circumstance is any fact, condition or event
which does not constitute a justification or excuse for the crime in
question, but may be considered as an extenuating circumstance in
determining the appropriateness of the death penalty.
CALCRIM 763.
Death Penalty: Factors to Consider (definition of mitigation only) (
new instruction)
A mitigating circumstance or factor is any fact, condition, or event
that makes the death penalty less appropriate as a punishment, even
though it does not legally justify or excuse the crime. A mitigating
circumstance is something that reduces the defendant’s blameworthiness
or otherwise supports a less severe punishment. A mitigating
circumstance may support a decision not to impose the death penalty.
Notice that the CALJIC instruction defines "mitigation" by using an even more obscure word ("extenuation"). The new instruction avoids that word and uses more ordinary language, explaining that a mitigating factor is one that makes the death penalty less appropriate. Shouldn't we speak as clearly as possible when life hangs in the balance?