Draft Comment #03 on the Proposed Criminal Jury Instructions
by Jon Roland, President, Constitution Society
006. The following instructions are inconsistent, incomplete, and
The defendant is not guilty of ______ [insert crime] if (he/she) acted
because of legal necessity. To establish this defense, the defendant must prove
that it is more likely than not that:
1. (He/She) acted to prevent a harm or evil to (himself/herself/another
person.) The harm or evil must have been significant and physical.
2. (He/She) had no adequate alternative.
3. The potential for harm from the defendant's acts was not out of
proportion to the harm or evil with which (he/she/another person) was
4. When the defendant acted, (he/she) actually believed that the act was
necessary to prevent the threatened harm or evil.
5. A reasonable person would also have believed that the act was necessary
under the circumstances.
6. The defendant did not substantially contribute to the need to act.
660. Defenses: Mistake of Fact
661. Defenses: Mistake of Law
It is no defense to the crime of ______ [insert crime] that the defendant
did not know (he/she) was breaking the law.
It is no defense to a crime that the defendant did not realize he or she was
breaking the law when he or she acted. (People v. Vineberg (1981) 125
Cal.App.3d 127, 137.) This is true even when the defendant claims he or she was
acting in good faith on the mistaken advice of counsel. (People v. Snyder
(1982) 32 Cal.3d 590 [defendant's mistaken belief, based on attorney's advice,
that prior conviction was a misdemeanor no defense to felon in possession of a
firearm]; People v. McCalla (1923) 63 Cal.App. 783, 795 [reliance on advice of
counsel not a defense to illegally issuing an instrument under Corporate
Securities Act]; People v. Honig (1996) 48 Cal.App.4th 289, 347-48 ["the
defense of action taken in good faith, in reliance upon the advice of a
reputable attorney that it was lawful, has long been rejected. The theory is
that this would place the advice of counsel above the law, and would also place
a premium on counsel's ignorance or indifference to the law"]; People v.
Smith (1966) 63 Cal.2d 779, 792-93 [no defense to felony murder that defendant
did not know that entering a store intending to pass a forged check constituted
burglary in California].)
A mistaken belief about legal status or rights may be a defense to a
specific intent crime if the mistake is held in good faith. (People v. Vineberg
(1981) 125 Cal.App.3d 127, 137 [defendants' belief that they had a legal right
to use clients' gold reserves to buy future contracts could be a defense if
held in good faith]; (People v. Stewart (1976) 16 Cal.3d 133, 140 [defendant's
good faith belief that he was legally authorized to use property could be
defense to embezzlement]; People v. Flora (1991) 228 Cal.App.3d 662, 669-70
[defendant's belief, if held in good faith, that out-of-state custody order was
not enforceable in California could have been basis for defense to violating a
child custody order]; see also 1 Witkin Epstein, Cal. Criminal Law (2d ed.
1988) Defenses, § 219.) Although concerned with knowledge of the law, a
mistake about legal status or rights is a mistake of fact, not a mistake of
law. (See instruction 660, Mistake of Fact.)
Good Faith Reliance on Statute or Regulation
Good faith reliance on a facially valid statute or administrative regulation
(which turns out to be void) may be considered an excusable mistake of law.
Additionally, a good faith mistake-of-law defense may be established by special
statute. (See 1 Witkin, Cal. Criminal Law (2d ed. 1988) Reliance on Statute,
§ 220, pp. 254-55.)
It is an open question as to whether the statute of limitations is an
affirmative defense, which is forfeited if a defendant fails to raise it before
or at trial, or if it is a jurisdictional issue, which can be raised at any
time. (People v. Cowan (1996) 14 Cal.4th 367, 374 [addressing the issue of
whether a defendant can knowingly waive the statute of limitations and plead
guilty to a lesser time-barred offense].) If the defendant does raise it at
trial, general instructional principles mandate that the court has a sua sponte
duty to instruct on it if the defendant is relying on such a defense or there
is substantial evidence supporting it. (See generally People v. Stewart (1976)
16 Cal.3d 133, 140 [discussing duty to instruct on defenses].)
The state has the burden of proving by a preponderance of the evidence that
the prosecution is not barred by the statute of limitations. (People v. Crosby
(1962) 58 Cal.2d 713, 725; People v. Zamora (1976) 18 Cal.3d 538, 565, fn 27.)
701. Justifiable Homicide: Self-defense or Defense of Another
The defendant is not guilty of (murder/[or] manslaughter) if (he/she) was
justified in killing the other person in (self-defense/defense of another). The
defendant acted in lawful (self-defense/defense of another) if:
1. The defendant believed that (he/she /______ [insert name of third party])
was (being threatened with death or great bodily injury/resisting the
commission of ______ [insert forcible and atrocious crime]).
2. (He/She) believed the threatened harm was immediate.
3. (He/She) believed that the use of deadly force was necessary to defend
against the threat.
4. The defendant's beliefs were reasonable.
Instruction ___, Justifiable Homicide: Defense of Habitation
Instruction ___, Justifiable Homicide: Peace Officers
Instruction ___, Justifiable Homicide: Preserving the Peace
Lawful Resistance » Pen. Code, §§ 692, 693, 694.
Penal Code section 197, subdivision 1 provides that self-defense may be used
in response to threats of death or great bodily injury, or to resist the
commission of a felony. (Pen. Code, § 197(1).) However, in People v.
Ceballos (1974) 12 Cal.3d 470, 477-79, the court held that although the latter
part of section 197 appears to apply when a person resists the commission of
any felony, it should be read in light of common law principles that require
the felony to be "some atrocious crime attempted to be committed by
force." (Id. at p. 478.) This instruction is therefore designed to be
given when self-defense is used in response to threats of great bodily injury
or death or when self-defense is used to resist the commission of forcible and
Instruction 715, Excusable Homicide: Heat of Passion.
735. Voluntary Manslaughter: Imperfect Self-defense
The defenses against the charge need to be led with an introductory
instruction, such as the following:
You are to find a verdict of "guilt not proven" [see
Comment #02] if any of the following situations
apply, each of which will be further explained later:
- The defendant acted because of legal necessity.
If "specific intent" is a element of the charge to be proven, and
- The defendant has made certain mistakes of fact.
- The defendant has made certain mistakes of law.
The act was justifiable for enforcement of the law, including
Defense of the defendant, if the defense was
- perfect, or
- unless the defendant provoked the attack.
- Defense of another.
- Defense of a habitation.
- Prevention of a felony.
- Arrest and custody of a lawbreaker.
Many of these instructions are grouped under "homicide", but have
broader applicability than homicide. For example, it might be a defense agains
a charge of trespass or theft of a vehicle or a firearm that the defendant was
justified in doing it for the pursuit and arrest of a fleeing murderer. They
should be organized under a general category of "Defenses", and the
instructions specific to certain categories of crime broken out under that
The position that the state has the burden of proving by a preponderance of
the evidence that the prosecution is not barred by the statute of limitations
is inconsistent with the general standard that the charge must be proven beyond
a reasonable doubt. Whether the act occurred within the statute of limitations,
like the question of whether it occurred on territory within the jurisdiction
of the court, is a fact question that must, logically, meet the same standard
of proof beyond a reasonable doubt that all other fact issues critical to guilt
It is improper to give the instruction "It is no defense to the crime
of ______ [insert crime] that the defendant did not know (he/she) was breaking
the law", when there is an element of specific intent that must be proven,
and it is the role of the jury to decide whether the act is the kind of offence
that has such an element. The instruction needs to say something like:
It is no defense that the defendant did not know (he/she) was
breaking the law if it was the crime of ______ [insert crime] that was
committed, in which there is no element of "specific intent" [but if
it was the crime of ______, which does have an element of "specific
intent", then it may be a defense]. We will explain the meaning of
"specific intent" later.
The old maxim of law is sometimes misquoted as "Ignorance of the law is
no excuse", but the actual maxim is "Ignorantia juris quod quisque
scire tenetur non excusat." — "Ignorance of the law which
everybody is supposed to know does not afford an excuse." It is time to
recognize that the formalities of "public notice" may no longer be
sufficient for educating the public on the law, when even legal professionals
can't know all of what the law provides. If the members of the jury are asked
to enforce a law they have never heard of and would not know how to obey
themselves, then it is time for them to find "guilt not proven":
If a reasonable person in the defendant's situation could not be
expected to know that what he is alleged to have done was a violation of the
law, then you are to find a verdict of "guilt not proven".
If it is difficult for ordinary persons to know the black letter law, then
to expect them to know about case law such as People v. Ceballos (1974) 12
Cal.3d 470, 477-79 cited above is entirely unreasonable. The purpose of statute
law and codes is to make compliance possible without everyone having to know
all the case law. A person should be able to rely on the black letter law, and
if it says it is a defence to have resisted the commission of "a
felony", then it is not the business of the courts to restrict the defense
based on that plain reading. The remedy is to get the Legislature to amend the
statute. Where there is any doubt, the issue should always be decided in favor
of the rights of the accused and against the powers of government.
Instructions should reflect the fact that law enforcement is not the
exclusive power of "peace officers" or government agents. Laws
against felonies and more serious misdemeanors are enforceable by any person,
and under the system of law inherited from our forebears, defense of self,
another, a habitation, or prevention of a felony should be considered instances
of law enforcement and the exercise of a duty to enforce the law, and not just
obey it. Defense of self is just defense of a member of society who happens to
be oneself. The defendant does not have to be in "fear" of his life,
but only to have a reasonable cause to believe that a law was about to be
The extent of civilian law enforcement is obscured by crime reporting
practices which tend to give credit for arrests to the first "peace
officer" or government agent to take custody, when in fact the arrest was
made by a civilian. Such practices need to be corrected to more accurately
report civilian participation in law enforcement.
It should also be kept in mind that the law allows search and arrest
warrants to be executed by anyone, not just law enforcement officers or
For more on this see California Penal Code, Part 2, Title 3, Chapter 5,
834. An arrest is taking a person into custody, in a case and in
the manner authorized by law. An arrest may be made by a peace officer or by a
837. A private person may arrest another:
- For a public offense committed or attempted in his presence.
- When the person arrested has committed a felony, although not in his
- When a felony has been in fact committed, and he has reasonable cause for
believing the person arrested to have committed it.
839. Any person making an arrest may orally summon as many persons as he
deems necessary to aid him therein.
840. An arrest for the commission of a felony may be made on any day and at
any time of the day or night. An arrest for the commission of a misdemeanor or
an infraction ....
841. The person making the arrest must inform the person to be arrested of
the intention to arrest him, of the cause of the arrest, and the authority to
make it, except when the person making the arrest has reasonable cause to
believe that the person to be arrested is actually engaged in the commission of
or an attempt to commit an offense, or the person to be arrested is pursued
immediately after its commission, or after an escape.
The person making the arrest must, on request of the person he is arresting,
inform the latter of the offense for which he is being arrested.
844. To make an arrest, a private person, if the offense is a felony, and in
all cases a peace officer, may break open the door or window of the house in
which the person to be arrested is, or in which they have reasonable grounds
for believing the person to be, after having demanded admittance and explained
the purpose for which admittance is desired.
845. Any person who has lawfully entered a house for the purpose of making
an arrest, may break open the door or window thereof if detained therein, when
necessary for the purpose of liberating himself, and an officer may do the
same, when necessary for the purpose of liberating a person who, acting in his
aid, lawfully entered for the purpose of making an arrest, and is detained
846. Any person making an arrest may take from the person arrested all
offensive weapons which he may have about his person, and must deliver them to
the magistrate before whom he is taken.
847. A private person who has arrested another for the commission of a
public offense must, without unnecessary delay, take the person arrested before
a magistrate, or deliver him or her to a peace officer. ...
There should also be specific instructions for defense against such charges
as "resisting arrest" or "obstructing justice" that it was
the defendant who was actually attempting to enforce the law and the officer or
agent who was breaking it. The law and the courts must not presume that just
because a person wears a uniform or a badge that he is always the enforcer of
the law against the civilian. This is particularly true in cases involving
defective or improper execution of search or arrest warrants.
"Citizens may resist unlawful arrest to the point of
taking an arresting officer's life if necessary." Plummer v. State,
136 Ind. 306. This premise was upheld by the Supreme Court of the United States
in the case: John Bad Elk v. U.S., 177 U.S. 529. The Court stated:
"Where the officer is killed in the course of the disorder which naturally
accompanies an attempted arrest that is resisted, the law looks with very
different eyes upon the transaction, when the officer had the right to make the
arrest, from what it does if the officer had no right. What may be murder in
the first case might be nothing more than manslaughter in the other, or the
facts might show that no offense had been committed."
"An arrest made with a defective warrant, or one issued without
affidavit, or one that fails to allege a crime is within jurisdiction, and one
who is being arrested, may resist arrest and break away. If the arresting
officer is killed by one who is so resisting, the killing will be no more than
an involuntary manslaughter." Housh v. People, 75 111. 491;
reaffirmed and quoted in State v. Leach, 7 Conn. 452; State v. Gleason, 32 Kan.
245; Ballard v. State, 43 Ohio 349; State v Rousseau, 241 P. 2d 447; State v.
Spaulding, 34 Minn. 3621.
"When a person, being without fault, is in a place where he has a right
to be, is violently assaulted, he may, without retreating, repel by force, and
if, in the reasonable exercise of his right of self defense, his assailant is
killed, he is justiciable." Runyan v. State, 57 Ind. 80; Miller v.
State, 74 Ind. 1. "These principles apply as well to an officer attempting
to make an arrest, who abuses his authority and transcends the bounds thereof
by the use of unnecessary force and violence, as they do to a private
individual who unlawfully uses such force and violence." Jones v.
State, 26 Tex. App. I; Beaverts v. State, 4 Tex. App. 1 75; Skidmore v.
State, 43 Tex. 93, 903.
In view of the police corruption and abuse that has emerged in several
jurisdictions, we need an instruction like this one:
You are to find a verdict of "guilt not proven" if the
evidence creates reasonable doubt in your mind that the law enforcement officer
[or agent, or civilian who made the arrest] was acting within his/her lawful
authority, and in a lawful manner, on probable cause that the defendant had
committed an offense, or in the execution of a search or arrest warrant.
This project would benefit from developing a flow chart, that both counsel
and the presiding officer could navigate to make sure they cover all the jury
instructions needed and do so accurately.
Finally, something needs to be said about grand juries. They need
instructions as well. They also need to be protected from undue influence from
public prosecutors. The Task Force was right to use the term
"prosecutor" instead of "district attorney". The prosecutor
need not be a district attorney. He or she could be a member of the State
Attorney General's office. He or she could also be a private attorney or even a
private citizen. We should remember that our legal system was designed with
private prosecutors in mind. Public prosecutors did not become widespread until
the latter decades of the 19th century, and court rules in most jurisdictions
still allow for private criminal prosecutions, sometimes calling such a
prosecutor pro tempore. In principle, outsiders can even serve as judges
pro tempore. It is important that there be no impediments to private
prosecutions, especially in cases of official corruption, when prosecutors and
judges may be implicated or have conflicts of interest, and public confidence
in the integrity of the judicial process depends on bringing in outsiders with
no ties to the establishment to pursue grand jury investigations or conduct
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