CA vs. Spector – Law & Order – Jury Instructions

OK, I know what you are thinking “Oh NO! After the boring ass day yesterday do we really have to sit through a whole day of hammering out jury instructions?” And the answer is “yes, yes you do!” Because jury instructions are extremely important, they are the roadmap that the jury must use in order to come to their decision, and a jury instruction can make or break a case, and have built in implications for appeals issues.

The new lawyer on the Spector’s team, Dennis Riordan, was an advisory committee member of the task force that actually revamped the California jury instructions. The task force rewrote the instructions a new, “plain language” format, in order to make them more accessible to jurors, and the most recent revisions were not even adopted until just a couple weeks ago, so having Riordan there to go over them was a very smart move on the part of Spector and the defense team.

When it comes to the actual instructions themselves, the judge will be using the CALCRIM, which is the newest adopted California Criminal Instructions. In any charge to the jury, some of these instructions are “sua sponte”, meaning that they are done of the judge’s own accord, without a motion or request from either of the attorneys. These, in other words, are the “standard” instructions that a judge gives, such as the instruction to the jury of  “You must reach your verdict without any consideration of punishment.” Neither side would have to request that this instruction be given, the judge knows to include it.

The judge will also include “sua sponte” any instructions that he feels should be given because the evidence presented in the case would suggest that the instruction would be applicable, such as the instructions on how the jury should deal with circumstantial evidence versus direct evidence, if the judge feels that the evidence presented would warrant such an instruction, he will give this instruction “sua sponte” or without motions from either side.

As court begins today, Alan Jackson gets up and enters into evidence the remaining of his exhibits that he had to research, redact and explain, and he does so. The judge then accepts the package of instructions from the Prosecution, and Riorden, for the defense, offers that they are in agreement with about 90% of the instructions, that there are really only 4 or 5 areas where they have significant objections. The judge says that he will go down the proposed list as offered by the prosecution, and the defense can either “join”, which means they also want this instruction, they can have “no opinion” or they can object. If they object, teh judge will then hear arguments from both sides and decide whether or not to include the instruction.

Before they being with the list of proposed jury instructions, though, Alan Jackson asks the judge if he could clarify something he heard this morning – that Riordan is now chief counsel – he just thinks it should be addressed, since Riordan is not a counsel of record, and to be heard in court, he needs to have some sort of formal standing. The judge says that as he understands it Riordan is only a consultant, here to aid and advise the defense on jury instructions. Riordan clarifies that this is so, and adds that he doesn’t understand the press statement that was released last evening by Rachelle Spector, because he doesn’t release press statements, and it did, indeed, misidentify him as Chief Counsel, replacement of Cutler.

The judge then reiterates that Roger Rosen is recognized by the court as Lead Counsel, and that the court will recognize Riordan for the purposes of this hearing as counsel on record.

So, as for jury instructions, we can pretty much go through with the judge and know exactly what he plans on saying to the Jury on the 5th of September. And in the meantime, we can act as jury ourselves and apply the law to the evidence to see how they must vote if they follow the instructions as given.

Here are the sua sponte instructions and those agreed upon today:

200. Duties of Judge and Jury

Members of the jury, I will now instruct you on the law that applies to this case. Each of you has a copy of these instructions to use in the jury room.
You must decide what the facts are. It is up to all of you, and you alone, to decide what happened, based only on the evidence that has been presented to you in this trial.

Do not let bias, sympathy, prejudice, or public opinion influence your decision.

You must reach your verdict without any consideration of punishment.

You must follow the law as I explain it to you, even if you disagree with it. If you believe that the attorneys’ comments on the law conflict with my instructions, you must follow my instructions. Pay careful attention to all of these instructions and consider them together. If I repeat any instruction or idea, do not conclude that it is more important than any other instruction or idea just because I repeated it.
 

Some words or phrases used during this trial have legal meanings that are different from their meanings in everyday use. These words and phrases will be specifically defined in these instructions.

Please be sure to listen carefully and follow the definitions that I give you. Words and phrases not specifically defined in these instructions are to be applied using their ordinary, everyday meanings.

Some of these instructions may not apply, depending on your findings about the facts of the case. Do not assume just because I give a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them.

 

The court has a sua sponte duty to instruct that the jurors are the exclusive judges of the facts and that they are entitled to a copy of the written instructions when they deliberate.

201. Do Not Investigate

Do not do any research on your own or as a group. Do not use a dictionary, the Internet, or other reference materials. Do not investigate the facts or law. Do not conduct any experiments, or visit the scene of any event involved in this case. If you happen to pass by the scene, do not stop or investigate.

The defense wants a modification of the instruction to include the fact that the jury did have a visit of the scene and that they can use any information gathered through that in their deliberations – the judge and prosecution agreed to this modification.

The court has a sua sponte duty to instruct the jurors on how they must conduct themselves during trial.

202. Note-Taking

You have been given notebooks and may have taken notes during the trial. You may use your notes during deliberations. The notes are for your own individual use to help you remember what happened during the trial. Please keep in mind that your notes may be inaccurate or incomplete. If there is a disagreement about the testimony and stipulations at trial, you may ask that the court reporter’s record be read to you. It is the record that must
guide your deliberations, not your notes. Please do not remove your notes from the jury room.

The defense asked if there should be a special instruction with reference to juror number 10 – the meticulous note taker, and the court laughed. He is said to be on his 13th notebook.

The court has a sua sponte duty to instruct the members of the jury that they may take notes. California Rules of Court, Rule 2.1031.

220. Reasonable Doubt

The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant  just because he has 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 a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt.. 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 guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.

The court has a sua sponte duty to instruct on the presumption of innocence and the state’s burden of proof.

222. Evidence

You must decide what the facts are in this case. You must use only the evidence that was presented in this courtroom or during a jury view.

“Evidence” is the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence.

Nothing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys 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 helped you to understand the witnesses’ answers. Do not assume that something is true just because one of the attorneys asked a question that suggested it was true.

During the trial, the attorneys may have objected to questions or moved to strike answers given by the witnesses. I ruled on the objections according to the law. If I sustained an objection, you must ignore the question. If the witness was not permitted to answer, do not guess what the answer might have been or why I ruled as I did. If I ordered testimony stricken from the record you must disregard it and must not consider that testimony for any
purpose.

You must disregard anything you saw or heard when the court was not in session, even if it was done or said by one of the parties or witnesses.

During the trial, you were told that the People and the defense agreed, or stipulated, to certain facts. This means that they both accept those facts as true. Because there is no dispute about those facts you must also accept them as true.

The court reporter has made a record of everything that was said during the trial. If you decide that it is necessary, you may ask that the court reporter’s notes be read to you. You must accept the court reporter’s notes as accurate.

223. Direct and Circumstantial Evidence: Defined

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 logically and reasonably 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.

Both direct and circumstantial evidence are acceptable types of evidence to prove or disprove the elements of a charge, including intent and mental state and acts necessary to a conviction, and neither is necessarily more reliable than the other. Neither is entitled to any greater weight than the other. You must decide whether a fact in issue has been proved based on all the evidence.

The court has a sua sponte duty to give this instruction explaining direct and circumstantial evidence if the prosecution substantially relies on circumstantial evidence to establish any element of the case.

224. Circumstantial Evidence: Sufficiency of Evidence

Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.

Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.

This is the only instruction that worries me. Notice that it says If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence.

This means that if one or more jurors finds it REASONABLE that Lana killed herself, then Phil Spector walks free – not that if one scenario is more reasonable, or that one scenario is more likely, only that if both scenarios are reasonable.

If I was Rosen, this is the only thing I would talk about in closing statements. Really. It’s that important.

The judge stops to ask the assembled group in the courtroom if they are bored yet – and he says that he would like to get Dick Wolf on the phone and see if he is interested in a couple of new franchises of “Law & Order” – Law & Order – Evidence Review and Law & Order – Jury Instructions. Everyone laughs, but , you know, I’d watch the jury instruction one. I’m just fucked up in the head that way.

225. Circumstantial Evidence: Intent or Mental State

The People must prove not only that the defendant did the acts charged, but also that he acted with a particular intent. The instruction for the crime  explains the intent required. An intent may be proved by circumstantial evidence.

Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.

Also, before you may rely on circumstantial evidence to conclude that the defendant had the required intent you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required intent. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that the defendant did have the required intent and another reasonable conclusion supports a finding that the defendant did not, you must conclude that the required intent was not proved by the circumstantial evidence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.

See my notes for instruction 224 – it applies here, as well.

The court has a sua sponte duty to instruct on how to evaluate circumstantial evidence if the prosecution substantially relies on circumstantial evidence to establish the element of a specific intent or a mental state.

226. Witnesses

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 disability, gender, race, religion, ethnicity, sexual orientation, gender identity, age, national origin or socioeconomic status

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  conduct that reflects on his or her believability?
• Was the witness promised any benefit in exchange for his or her testimony?

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.

The prosecution wanted to include the Baden’s relationship in this instruction, but the judge sustained the defense’s objection to such inclusion, although he did not preclude the prosecution from arguing this in closing. Also, the last question on witnesses testimony Was the witness promised any benefit in exchange for his or her testimony? –  was included by request of the defense regarding DeSouza and his benefits of help with his immigration status from the prosecution. The court has a sua sponte duty to instruct on factors relevant to a witness’s credibility.

251. Union of Act and Intent: Specific Intent or Mental State

The crime charged in this case requires proof of the union, or joint operation, of act and wrongful intent.

For you to find a person guilty of the crime of Second Degree Murder true, that person must not only intentionally commit the prohibited act , but must do so with a specific intent. The act and the specific intent required are explained in the instruction for that crime.The specific intent required for the crime of Second Degree Murder  is malice.The judge is not sure if he is going to use this instruction for the union of act and intent charge, or if he is going to use 252, which follows. But The court has a sua sponte duty to instruct on the union of act and specific intent or mental state. This instruction must be given if the crime requires a specific mental state, such as knowledge or malice, even if the crime is classified as a general intent offense.

Union of Act and Intent: General and Specific Intent Together

The crime  charged  requires proof of the union, or joint operation, of act and wrongful intent.

The following crime  requires general criminal intent: Second Degree Murder. For you to find a person guilty of this crime, that person must not only commit the prohibited act, but must do so with wrongful intent.

A person acts with wrongful intent when he or she intentionally does a prohibited act on purpose, however, it is not required that he or she intend to break the law. The act required is explained in the instruction for that crime.
 

The specific intent required for the crime of Second Degree Murder is malice.

300. All Available Evidence

Neither side is required to call all witnesses who may have information about the case or to produce all physical evidence that might be relevant.

In the notes for this instruction is the following, which I find interesting:

Willful suppression of evidence by the government constitutes a denial of a fair trial and of due process. (People v. Noisey (1968) 265 Cal.App.2d 543, 549–550 [71 Cal.Rptr. 339].) Likewise, willful failure by investigating officers to obtain evidence that would clear a defendant would amount to a denial of due process of law. (Ibid.) However, failure to look for evidence is different from suppressing known evidence and “the mere fact that investigating officers did not pursue every possible means of investigation of crime does not, standing alone, constitute denial of due process or suppression of evidence.”

301. Single Witness’s Testimony

The testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence.

The court has a sua sponte duty to give an instruction on this issue in every case.

302. Evaluating Conflicting Evidence

If you determine there is a conflict in the evidence, you must decide what evidence, if any, to believe. Do not simply count the number of witnesses who agree or disagree on a point and accept the testimony of the greater number of witnesses. On the other hand, do not disregard the testimony of any witness without a reason or because of prejudice or a desire to favor one side or the other. What is important is whether the testimony or any other evidence convinces you, not just the number of witnesses who testify about a certain point.

The court has a sua sponte duty to instruct on weighing contradictory evidence unless corroborating evidence is required.

303. Limited Purpose Evidence in General

During the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other.

The judge says at this point that he also wants both sides to write up a instruction to instruct the jury that the ownership of guns is not a facto that can play a part in  their deliberations – that the simple fact of gun ownership is not to be used as a factor in deciding character or guilt.

316. Additional Instructions on Witness Credibility—Other Conduct

If you testified to that Melissa Grosvenor was convicted of a felony.  You may consider that fact  in evaluating the credibility of the witness’s testimony. The fact of a conviction does not necessarily destroy or impair a witness’s credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable.

The prosecution wanted this instruction given without the witnesses name -t eh defense argued to have it included, since the instruction only applied to her. The judge agreed with the defense.

318. Prior Statements as Evidence

You have heard evidence of statements that a witness made before the trial. If you decide that the witness made those statements, you may use those statements in two ways:
1. To evaluate whether the witness’s testimony in court is believable;
AND
2. As evidence that the information in those earlier statements is true.

332. Expert Witness Testimony

Witnesses were allowed to testify as experts and to give opinions. You must consider the opinions, but you are not required to accept them as true or correct.

The meaning and importance of any opinion are for you to decide. In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition, consider the expert’s knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion. You must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence.

An expert witness may be asked a hypothetical question. A hypothetical question asks the witness to assume certain facts are true and to give an opinion based on the assumed facts. It is up to you to decide whether an assumed fact has been proved. If you conclude that an assumed fact is not true, consider the effect of the expert’s reliance on that fact in evaluating the expert’s opinion.

If the expert witnesses disagreed with one another, you should weigh each opinion against the others. You should examine the reasons given for each opinion and the facts or other matters on which each witness relied. You may also compare the experts’ qualifications.

When expert testimony is received at trial, the court must sua sponte instruct the jury on evaluating the expert’s testimony.

333. Opinion Testimony of Lay Witness

Witnesses  who were not testifying as experts, gave their opinions during the trial. You may but are not required to accept those opinions as true or
correct. You may give the opinions whatever weight you think appropriate.

Consider the extent of the witness’s opportunity to perceive the matters on which his or her opinion is based, the reasons the witness gave for any opinion, and the facts or information on which the witness relied in forming that opinion. You must decide whether information on which the witness relied was true and accurate. You may disregard all or any part of an opinion that you find unbelievable, unreasonable, or unsupported by the evidence.

355. Defendant’s Right Not to Testify

A defendant has an absolute constitutional right not to testify. He  may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt. Do not consider, for any reason at all, the fact that the defendant did not testify. Do not discuss that fact during your deliberations or let it influence your decision in any way.

358. Evidence of Defendant’s Statements

You have heard evidence that the defendant made an oral statement before the trial. You must decide whether or not the defendant made any such statement, in whole or in part. If you decide that the defendant made such a statements, consider the statement, along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to such a statement.

You must consider with caution evidence of a defendant’s oral statement unless it was written or otherwise recorded.

The court has a sua sponte duty to give the last cautionary instruction for evidence of out-of-court oral statements made by the defendant.

359. Corpus Delicti: Independent Evidence of a Charged Crime

The defendant may not be convicted of any crime based on his out-of-court statements alone. You may only rely on the defendant’s out-of-court statements to convict him if you conclude that other evidence shows that the charged crime was committed.

That other evidence may be slight and need only be enough to support a reasonable inference that a crime was committed.

The identity of the person who committed the crime [and the degree of the crime] may be proved by the defendant’s statements alone.

You may not convict the defendant unless the People have proved his guilt beyond a reasonable doubt.

The prosecution wanted this instruction in, and the defense argued against it, based on the DeSouza testimony. They said they would waive their right to appeal based on error of not including this statement if the judge would leave it out. The judge (of course) said he has a sua sponte duty to instruct on corpus delicti whenever an accuseds extrajudicial statements form part of the prosecution’s evidence, and it’s not an issue that the defense can waive.

370. Motive

The People are not required to prove that the defendant had a motive to commit the crime charged. In reaching your verdict you may, however, consider whether the defendant had a motive.

Having a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending to show the defendant is not guilty.

371. Consciousness of Guilt: Suppression and Fabrication of Evidence

If the defendant tried to create false evidence or obtain false testimony, that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself.
 

The defense objected to the inclusion of this instruction. The prosecution said that the fact that DeSouza saw the gun in Spector’s hand and that later the gun was found under Lana’s right leg was a fabrication of evidence. Also the fact that the gun and Lana’s face were wiped down was an attempt to fabricate evidence. The Defense also argued that if the prosecution was going to rely on the fact of fabrication of evidence as an element of the crime, then they wanted specific language in instruction 224 that EACH ELEMENT of the crime, including this fabrication element, must be specified and proven beyond a reasonable doubt. The prosecution disagreed with this theory, saying that this is not an element of the crime, only a fact of the crime. The judge is going to research the issue, and he may make the instruction specific to fabricating the evidence for each event of fabrication – specifically listing “the gun under the leg”, “the wiping of the gun”, “the wiping of the face”.

375. Evidence of Uncharged Offense to Prove Identity, Intent, Common Plan, etc.

The People presented evidence of other behavior by the defendant that was not charged in this case.

You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offenses.. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.

If the People have not met this burden, you must disregard this evidence entirely.

If you decide that the defendant committed the uncharged offenses, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not the defendant had a motive to commit the offenses alleged in this case.

In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offenses and the charged offense.

Do not consider this evidence for any other purpose except for the limited purpose of motive.

Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime.

If you conclude that the defendant committed the uncharged offenses that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of Second Degree Murder. The People must still prove each element of the charge beyond a reasonable doubt.

Of course, the defense fought long and hard to keep this out. They went back and forth on whether or not to include the specific offense’s and define each offense, and finally Alan Jackson settled for the broad categorization of “other behavior”, just to make the instruction less cumbersome. The judge is still going to research this some more and it may come in in some other form before it’s all over. Alan Jackson wants a specific definition of “motive” rather than just the word “motive”, which the judge agreed with.

The court is only required to give this instruction sua sponte in the “occasional extraordinary case in which unprotested evidence of past offenses is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose.”

520. Murder With Malice Aforethought (Pen. Code, § 187)

The defendant is charged in Count 1 with murder in the Second Degree.

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant committed an act that caused the death of another person.

[AND]

2. When the defendant acted, he had a state of mind called malice aforethought.

There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder.

The defendant acted with express malice if he unlawfully intended to kill.The defendant acted with implied malice if:

1. He intentionally committed an act;

2. The natural consequences of the act were dangerous to human life;

3. At the time he acted, he knew his act was dangerous to human life;

AND

4. He deliberately acted with conscious disregard for human life.

Malice aforethought does not require hatred or ill will toward the victim. It is a mental state that must be formed before the act that causes death is committed. It does not require deliberation or the passage of any particular period of time.

An act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence.
Neither side is asking for lesser, included charges.

 

3146. Personally Used Firearm (Pen. Code, §§ 667.5(c)(8), 667.61(e)(4), 1203.06, 1192.7(c)(8), 12022.3, 12022.5, 12022.53(b))

If you find the defendant guilty of the crime charged in Count 1, you must then decide whether the People have proved the additional allegation that the defendant personally used a firearm during the commission of that crime.

A firearm is any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion.Someone personally uses a firearm if he or she intentionally does any of the following:
1. Displays the firearm in a menacing manner;
2. Hits someone with the firearm;
OR
3. Fires the firearm.The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved.

 

3550. Pre-Deliberation Instructions

When you go to the jury room, the first thing you should do is choose a foreperson. The foreperson should see to it that your discussions are carried on in an organized way and that everyone has a fair chance to be heard.

It is your duty to talk with one another and to deliberate in the jury room. You should try to agree on a verdict if you can. Each of you must decide the case for yourself, but only after you have discussed the evidence with the other jurors. Do not hesitate to change your mind if you become convinced that you are wrong.

But do not change your mind just because other jurors disagree with you.

Keep an open mind and openly exchange your thoughts and ideas about this case. Stating your opinions too strongly at the beginning or immediately announcing how you plan to vote may interfere with an open discussion. Please treat one another courteously. Your role is to be an impartial judge of the facts, not to act as an advocate for one side or the other.

As I told you at the beginning of the trial, do not talk about the case or about any of the people or any subject involved in it with anyone, including, but not limited to, your spouse or other family, or friends, spiritual leaders or advisors, or therapists You must discuss the case only in the jury room and only when all jurors are present. Do not discuss your deliberations with anyone.

During the trial, several items were received into evidence as exhibits. You may examine whatever exhibits you think will help you in your deliberations. These exhibits will be sent into the jury room with you when you begin to deliberate.

If you need to communicate with me while you are deliberating, send a note through the bailiff, signed by the foreperson or by one or more members of the jury. To have a complete record of this trial, it is important that you not communicate with me except by a written note. If you have questions, I will talk with the attorneys before I answer so it may take some time. You should continue your deliberations while you wait for my answer. I will answer any questions in writing or orally here in open court.

Do not reveal to me or anyone else how the vote stands on the question of guilt unless I ask you to do so. Your verdict  must be unanimous. This means that, to return a verdict, all of you must agree to it.

It is not my role to tell you what your verdict should be. Do not take anything I said or did during the trial as an indication of what I think about the facts, the witnesses, or what your verdict should be.

You will be given a verdict form. As soon as all jurors have agreed on a verdict, the foreperson must date and sign the appropriate verdict form and notify the bailiff.  Return any unsigned verdict form.

3590. Final Instruction on Discharge of Jury

You have now completed your jury service in this case. On behalf of all the judges of the court, please accept my thanks for your time and effort.

Now that the case is over, you may choose whether or not to discuss the case and your deliberations with anyone. I remind you that under California law, you must wait at least 90 days before negotiating or agreeing to accept any payment for information about the case.

Let me tell you about some rules the law puts in place for your convenience and protection.

The lawyers in this case, the defendant, or their representatives may now talk to you about the case, including your deliberations or verdict. Those discussions must occur at a reasonable time and place and with your consent.

Please immediately report to the court any unreasonable contact, made without your consent, by the lawyers in this case, their representatives, or the defendant.

A lawyer, representative, or defendant who violates these rules violates a court order and may be fined.

I order that the court’s record of personal juror identifying information, including names, addresses, and telephone numbers, be sealed until further order of this court.

If, in the future, the court is asked to decide whether this information will be released, notice will be sent to any juror whose information is involved. You may oppose the release of this information and ask that any hearing on the release be closed to the public. The court will decide whether and under what conditions any information may be disclosed.

This instruction will be given at the end of deliberations.

In addition there are two instructions to be given that relate to the misconduct of the defense regarding Baden and Lee. The judge is going to write these instructions himself, with language something like “the defense had a responsibility  to turn over evidence that should have been turned over by this time, and it wasn’t turned over until that time, because of this delay, you may use this to evaluate credibility of Michael Baden.”.

As to Lee, the judge said he is thinking of wording along the line of  – “based on Sarah Caplan’s testimony, if you find her to be credible you can consider it only in considering whether the people have had all the evidence needed to present their case.”

The judge said he would like to go further, but he won’t.

The defense says that there were instances of the prosecution losing evidence, and that they would like an instruction stating that, as well. The judge says that they can draft an instruction and he will consider it, although the Judge thinks that losing evidence is not the same as concealing evidence.

The defense also proffers a pinpoint instruction under the rule of People v. Sears (1970), which states that “A defendant is entitled, on request, to a nonargumentative instruction that directs attention to the defense’s theory of the case and relates it to the state’s burden of proof.” The instruction they want says that “The defendant placed the gun IN HER MOUTH and PULLED THE TRIGGER with MALICE and INTENT and that the prosecution has the burden to prove this beyond a reasonable doubt.”

The Prosecution argues that this  argument is redundant, and that it also misstates the prosecution’s theory and the law. The prosecution says they don’t have to prove specific intent or that he physically intended on pulling the trigger, that he could have sneezed, she could have batted the gun away, and the gun could have gone off that way.

The judge is going to mull over this instruction.
 

Alan Jackson also wants to use some of the Court TV feed of the testimony during his closing argument. The judge is also going to mull that over.

And with that, the instructions are through, except for revisions over the holiday, and then the jury will be back to be charged and hear closing statements.

I can’t wait.