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self-study / Criminal Practice

Review a court's duty to instruct a jury

Hall henry j

Clara Shortridge Foltz Criminal Justice Center

Henry J. Hall

Judge, Los Angeles County Superior Court

felony trials

Loyola Law School, 1976

The objective of this article and self-study test is to review the general law concerning a court's duty to instruct a jury in a criminal case. Readers will learn about which instructions are used, the timing of instructions, instructions a court must provide sua sponte, instructions that must be provided upon request, and the duty to instruct on defenses.

Which Instructions?

A preliminary matter is which pattern instructions a court should use. The California Judicial Council has promulgated a comprehensive set of instructions: CALCRIM. These are "the official instructions for use in the state of California," and their use "is strongly encouraged." Cal. Rules of Court, rule 2.1050(a), (e).

The Los Angeles County Superior Court for many years provided its own set of instructions: CALJIC. These instructions are now updated by the West Publishing Company Committee for California Criminal Jury Instructions. Although use of CALCRIM is recommended, it is not error to use CALJIC. People v. Thomas, 150 Cal. App. 4th 461 (2007). However, because the organization of the concepts is approached differently, the guide for using CALCRIM states "The CALJIC and CALCRIM instructions should never be used together." Guide for Using CALCRIM, p. xxiv.

In situations where there is no pattern instruction on the topic, a court may instruct the jury with the language of the statute involved. People v. Estrada, 11 Cal. 4th 568 (1995). The court may also instruct with "pinpoint" instructions provided by the parties, provided they are legally correct and supported by the evidence (Pen. Code Section 1127), and they are not be argumentative People v. Wright, 45 Cal. 3d 1126 (1988).

When Should They Be Given?

Discussion of proposed jury instructions should be done before argument begins. People v. Terry, 70 Cal. 2d 410 (1969). The jury instruction conference is not a critical stage of the proceedings and the defendant is not entitled to be present. People v. Morris, 53 Cal. 3d 125 (1991). The conference should be conducted on the record, permitting the parties to register any objections and preserving the record for appeal.

A court may pre-instruct on the elements of the crime before evidence is presented, but this is discouraged because the delay between the instructions and deliberations could cause confusion. People v. Chung, 57 Cal. App. 4th 755 (1997). It has been suggested that giving all instructions except the concluding instructions before argument and giving the concluding instructions after argument is the "preferred" method. People v. Murillo, 47 Cal. App. 4th 1104 (1996).

Generally, the timing of instructions is in the discretion of the trial court. People v. Webb, 66 Cal. 2d 107 (1967); People v. Chung, 57 Cal. App. 4th 755 (1997). But the exact instructions that will be given must be determined prior to the argument of counsel. Pen. Code Section 1093.5. Judicial changes to the instructions after or during closing arguments may be reversible error. People v. Sanchez, 83 Cal. App. 3d Supp. 1 (1978).

To resolve the jury's confusion over instructions, the court may provide supplemental instructions after closing argument. People v. Beardslee, 53 Cal. 3d 68 (1991). The court must notify the parties and give them an opportunity to be heard prior to giving additional instructions. Pen. Code Section 1138. The defendant has a right to appear and consult with counsel and present argument at any hearing about a supplemental instruction requested by the jury during deliberations. People v. Hawthorne, 4 Cal. 4th 43 (1992). Also, "if a supplemental instruction introduces new matter for consideration by the jury, the parties should be given an opportunity to argue the theory." People v. Ardoin, 196 Cal. App. 4th 102 (2011).

General Duty

The general rule is that "even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence.... The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." People v. St. Martin, 1 Cal.3d 524 (1970) (citations omitted).

Limitations on the rule include that there is no sua sponte requirement to instruct on evidentiary issues. See People v. Lewis, 26 Cal. 4th 334 (2001) (absent a request, no duty to instruct jury to determine whether a preliminary fact exists and to disregard the proffered evidence unless it finds the preliminary fact does exist). A court's duty to sua sponte instruct on affirmative defenses is rather limited. A court's duty here is only triggered "if there is substantial evidence of the defense and if it is not inconsistent with the defendant's theory of the case." People v. Wilson, 36 Cal. 4th 309 (2005) (citation omitted).

The court has a statutory duty to provide several instructions. After the jury has been sworn, and prior to the prosecution's opening statement, the court must instruct the jury's regarding its "basic functions, duties and conduct." Pen. Code Section 1122. This includes instructing the jury to not to communicate with others about the case, including doing so using any "forms of electronic and wireless communication." Pen. Code Section 1122(a)(1). The court satisfies this duty by providing the jury with CALCRIM 101. People v. Ibarra, 156 Cal. App. 4th 1174 (2007).

The court also must instruct the jurors that they may take notes. Cal. Rules of Court, rule 2.1031. The better practice is for the court to also caution the jury that note-taking could distract them and that the notes are only for their own individual use, but the court is not required to do so. People v. Bonillas, 48 Cal. 3d 757 (1989).

Additionally, the court has a duty to admonish the jury "at each adjournment of the court before the submission of the cause" that "it is their duty not to conduct research, disseminate information, or converse among themselves, or with anyone else, on any subject connected with the trial, or to form or express any opinion about the case until the cause is finally submitted to them." Pen. Code Section 1122(b). The admonition is required only when proceedings are "recessed," i.e., adjourned to another day, and need not be given at each break. People v. Moore, 15 Cal. App. 3d 851 (1971).

In every case, the court must instruct the jury that the defendant is presumed to be innocent and the prosecution must prove its case beyond a reasonable doubt. See Victor v. Nebraska, 511 U.S. 1 (1994); People v. Vann, 12 Cal. 3d 220 (1974); Pen. Code Section 1096a. CALCRIM 103 can be used to instruct the jury on the presumption of innocence and reasonable doubt before evidence is presented, and CALCRIM 220 may be used after the close of the evidence. The substance of these instructions has been upheld as satisfactorily explaining reasonable doubt. People v. Ramos, 163 Cal. App. 4th 1082 (2008); People v. Reyes, 151 Cal. App. 4th 1491 (2007).

The court must also instruct in every case concerning the elements of the charged offenses. People v. Floyd, 18 Cal. 4th 470 (1998). This includes mental states and intents. Ibid. The jury must also be instructed regarding which crimes require specific intent and which require general criminal intent. People v. Hill, 67 Cal. 2d 105 (1967). The jury must also be instructed that it alone determines the believability of the witnesses. CALCRIM 226; see People v. Rincon-Pineda, 14 Cal. 3d 864 (1975).

A court has a duty to instruct on certain issues, depending on the circumstances of the case. This duty includes instructions concerning an in-custody informant (CALCRIM 336); expert testimony (CALCRIM 332); and a defendant's flight (CALCRIM 372). See Pen. Code Sections 1127a-1127c. As discussed in the CALCRIM Bench Notes, the jury must be instructed on the evaluation of conflicting evidence (CALCRIM 302); the sufficiency of circumstantial evidence where prosecution relies substantially on circumstantial evidence (CALCRIM 224, 225); accomplice testimony corroboration where there is substantial evidence that a witness is an accomplice (CALCRIM 334, 335; see also Pen. Code Section 1111); when evidence of a defendant's extrajudicial statements are part of the People's case against the defendant (CALCRIM 359); unanimity (CALCRIM 3500-3502); and instructions regarding multiple charges for one event (CALCRIM 3516).

Instructions That Must Be Given Upon Request

There are many instructions which, a court need not provide if there is no request by the parties. Nonetheless, when a request is made and the instruction is appropriate, the court must so instruct.

In every case where the defendant does not testify, the court must instruct the jury, upon request, that it cannot consider for any purpose the fact the defendant did not testify. Carter v. Kentucky, 450 U.S. 288 (1981); CALCRIM 355. The court need not get a personal waiver of the instruction from the defendant; this is a decision that counsel can make as a tactical choice. People v. Towey, 92 Cal. App. 4th 880 (2001). Under the U.S. Constitution, the instruction may be given over a defendant's objection (Lakeside v. Oregon, 435 U.S. 333 (1978)), but the California Supreme Court has held "if the defendant does not want it given the trial court should accede to that request." People v. Roberts, 2 Cal. 4th 271 (1992).

Many other instructions must be given upon request. As discussed in the Bench Notes, these include cautionary instructions regarding a pro per defendant (CALCRIM 107); duty to abide by translation (CALCRIM 121); defining consideration of evidence admitted for a limited purpose (CALCRIM 303); limited admissibility of evidence where there are multiple defendants (CALCRIM 304); considering eyewitness testimony (CALCRIM 315); witness credibility based on other convictions and criminal conduct without conviction (CALCRIM 316); former testimony of an unavailable witness (CALCRIM 317); defendant's false and misleading statements or consciousness of guilt (CALCRIM 362); limited purpose for which a statement may be used (CALCRIM 356); and considering a defendant's statements to an expert (CALCRIM 360).


With respect to defenses, the court does not have a sua sponte duty to instruct when a defense "serves only to negate the mental state element of the offense charged." People v. Anderson, 51 Cal. 4th 989 (2011). In such a situation, the court's duty is only to provide an instruction on the defense upon request. Examples of defenses wherein the court need instruct only upon request include accident (CALCRIM 3404; see Anderson, 51 Cal. 4th at 998); mistake of fact (CALCRIM 3406; see People v. Lawson, 215 Cal. App. 4th 108 (2013)); and claim-of-right (CALCRIM 1863; see People v. Hussain, 231 Cal. App. 4th 261 (2013); but see People v. Russell, 144 Cal. App. 4th 1415 (2006) (holding pre-Anderson there is a sua sponte duty)). The court also does not have a sua sponte duty to instruct on alibi (CALCRIM 3400; see People v. Alcala, 4 Cal. 4th 742 (1992)), or on intoxication (CALCRIM 3426, 3427; see People v. Castillo, 16 Cal. 4th 1009 (1997); People v. Saille, 54 Cal. 3d 1103 (1991)).

Defenses which a court does has a sua sponte duty to provide an instruction include, as discussed in the Bench Notes, self-defense and defense of another (CALCRIM 3470) medical marijuana (CALCRIM 2360); unconsciousness (CALCRIM 3425); and duress (CALCRIM 3402).

A court may only instruct if a defense is supported by substantial evidence, and either, the defendant is relying on the defense (People v. Breverman, 19 Cal. 4th 142 (1998)), or if the defense is not inconsistent with the defendant's theory of the case (People v. Abilez, 41 Cal. 4th 472 (2007)). The fact that defense counsel is relying on a defense does not, by itself, create a sua sponte duty to instruct on that defense. People v. Wilson, 36 Cal. 4th 309 (2005).

Substantial evidence warranting instructing the jury on a defense means that there must be sufficient evidence for a rational jury to conclude that the underlying facts are true. People v. DePriest, 42 Cal. 4th 1 (2007). The court need not instruct based on conjecture and speculation (People v. Duncan, 53 Cal. 3d 955 (1991)), but the court cannot refuse to instruct merely because it disbelieves the witnesses (People v. Salas, 37 Cal. 4th 967 (2006)). Doubts whether to instruct on defenses should be resolved in favor of the defendant. People v. Tufunga, 21 Cal. 4th 935 (1999); People v. Cole, 156 Cal. App. 4th 452 (2007).


Ben Armistead

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