There's a contested criminal trial. Like this one. Defendant admits that he killed the victim. The only issue is whether it's first-degree murder, second-degree, manslaughter, etc. Was defendant provoked, how strong was the provocation, etc.
Obviously there's a huge criminal law element in that determination.
Defendant's counsel stands up at closing argument and says that the law is X. Prosecutor stands up at closing argument and says that the law is Y. X and Y are flatly inconsistent.
(Here, for example, the prosecutor says that it's only voluntary manslaughter if a reasonable person would respond to the provocation in the same way that the defendant did; i.e., by killing the other guy. By contrast, the defendant's argument is that it's voluntary manslaughter if a reasonable person would respond to the provocation 'without deliberation and from passion'; i.e., rashly, whether that means killing the guy or doing something equally rash but with lesser effect.)
This is basically the entire dispute. Defendant objects to the prosecutor's statement in closing as an erroneous statement of law. The trial judge now has to rule. What to do?
So many times, as in this case, the trial judge judge punts. And essentially says (as here) that s/he's not going to rule on the objection, because the law is what the law is, and s/he'll instruct on that issue later. Which s/he does, reading the relevant CALCRIM instruction.
And, of course, the relevant CALCRIM instruction accurately states the law. But does so obtusely. Which is why even trained lawyers like the prosecutor and defense counsel disagree on what it says.
But the trial judge simply reads the instruction to the jurors and lets these legally untrained folk figure out for themselves what even two lawyers and a judge couldn't resolve.
At which point the Court of Appeal typically says: "Well, we presume the jury followed the properly given instructions. Plus no prejudice."
Which all makes sense. But it's nonetheless a total cop out. Why shouldn't the trial judge make sure that the jury's given correct information? Not only in an obtuse jury instruction, but by the parties as well.
I know the answer to that question. At least practically. Why doesn't the trial judge and/or Court of Appeal do anything different? Because it's hard. They may not be sure of exactly what the law is or whether the misstatement was prejudicial. It's lots easier to merely read the instruction and affirm, as opposed to actually informing the jury -- clearly and distinctly -- of whether the prosecutor or the defendant's version of the law is the right one.
Admittedly, to the credit of the trial judge here (Judge Ellison, from Fresno), after initially punting this issue in the usual way -- i.e., by just telling the jury "Follow my instructions" rather than ruling on the defendant's objection -- he actually ponies up in the end and says, yeah, you know what, the prosecutor's statement of the law during closing argument was wrong.
Good job. Important to get this stuff right.
Too bad Judge Ellison did that only after the jury had turned it its verdict.
Sure, the verdict was sealed, and yeah, Judge Ellison sent the jury back to see whether his belated clarification of the law made a difference.
But having now resolved the case 12-0, you'll not be at all surprised to discover how the jury reacted to this new information. Took 'em all of nine minutes to walk back to the deliberation room, get all the jurors to sit down, have a brief chat, get back up, walk back to the courtroom, get everyone (the judge, attorneys, parties, etc.) together, and render the exact same verdict. Didn't even need to unseal their prior verdict.
Being a judge is hard. Sometimes you have to rule on the spot. And you want to get it right.
But taking the "easy road" has consequences. Not on your reversal rate, mind you. The Court of Appeal will almost always affirm if you simply read the form instruction and "trust the jury to follow [it]" rather than actually ruling on an objection to an improper statement of the law. As it does here.
The consequences are instead on justice. We'll never really be sure if the jury in fact would have done the same thing if they had actually known at the outset of deliberations what the law really was.
