State Bar of California California Bar Journal
Home Page Official Publication of the State Bar of California July2005
Top Headlines
From the President
Letters to the Editor
Tracy Westen and Robert M. Stern
MCLE Self-Study
You Need to Know
Trials Digest
Contact CBJ

Shifting the burden of proof

By Thomas Lundy
©2005, All Rights Reserved.

Thomas Lundy

For those who may have doubted the importance of jury instruction or the jurors’ willingness and ability to follow them, the recent trio of high profile trials — Scott Peterson, Robert Blake and Michael Jackson — are instructive. In Jackson, post-trial juror interviews revealed the jurors’ ability to follow an instruction that precluded conviction based solely on alleged prior molestations. Thus, even though some jurors apparently believed that Jackson had molested other children, those jurors properly required the prosecution to prove the charged offenses beyond a reasonable doubt. As one juror put it, “we had to do what we were instructed to do.” Similarly, in the Blake trial the jurors acquitted because the prosecution simply had not met the burden of proving guilt beyond a reasonable doubt.

The burden of proof may not have been so clearly understood by the jurors in the Peterson trial, where the defense presented affirmative evidence implying that someone other than Peterson committed the crime. Even though the burden of proof still remained with the prosecution, the jurors may have subtly shifted the burden to the defense to establish the alibi or third party guilt theory. In other words, the jurors may have tended to view their role as deciding “who committed the murder” — not whether there was a reasonable doubt that Peterson did it.

For this reason, it is troubling to read cases such as People v. Frazier (2005) 128 Cal.App.4th 807, which approved the burden shifting terminology that the defendant “has the burden to raise a reasonable doubt about the facts underlying [his defense theory].” Use of the phrase “raise a reasonable doubt” in this way is highly misleading because it implies a burden or duty on the defense to produce a certain quantum of evidence.

It is true that the defense typically must come forward with evidence to justify instruction on a defense theory. However, the jurors should never be instructed on the defendant’s burden of “going forward” with evidence since this is not material to the jurors’ deliberations. (See People v. Cornett (1948) 33 Cal.2d 33, 42-44; People v. Deloney (1953) 41 Cal.2d 832, 840-42.) If the court has determined that an instruction should be given, the issue of production has already been resolved and the jury need not consider it further. That aspect of “who bears the burden [of production]” has been disposed of by the court’s ruling. (See generally Evidence Code §402.) What the jury must determine is whether the evidence produced could leave the jury with a reasonable doubt. (See People v. Adrian (1982) 135 Cal.App.3d 335, 342.) Instructing the jury that it must acquit if jurors have a reasonable doubt on the issue properly allocates the burden without running the risks of misapplication outlined above. (See People v. Loggins (1972) 23 Cal.App.3d 597, 601-4 [former CALJIC 5.15 was erroneous insofar as it instructed the jury that “the burden is on the defendant to raise a reasonable doubt” regarding his self defense theory].)

The wisdom of avoiding instruction on the defendant’s burden of coming forward with evidence has been recognized by the Judicial Council’s Blue Ribbon Committee on Jury Instructions, chaired by Justice Carol Corrigan. None of the Judicial Council instructions issued to date for review contains language as to the defendant’s burden of persuasion. (Cf., People v. Nguyen DEPUBLISHED (2003) 111 Cal.App.4th 184 [incisive discussion of this principle by Justice Corrigan].)

Hence, the “burden to raise” language should be replaced with an instruction such as the following: “A defense theory in this case is that a person other than the defendant committed the charged offense. However, the defense has no burden of proof as to this theory. The burden remains with the prosecution to prove beyond a reasonable doubt that it was the defendant, not another person, who committed the crime. Any juror who has a reasonable doubt that the defendant committed the crime must vote to acquit.”

In sum, Jackson, Peterson and Blake illustrate how cases like Frazier may subtly but unconstitutionally shift the burden of proof to the defense. Hopefully, future decisions will criticize Frazier’s faulty conclusions and rule that the “raise a reasonable doubt” language is unconstitutional.

Thomas Lundy is founder and editor of FORECITE California, a widely used supplement to the California Pattern Jury Instructions (CALJIC). This article is copyrighted by Lundy individually and doing business as Jury

Contact Us Site Map Notices Privacy Policy
© 2023 The State Bar of California