vice instruction in California

1956It was there pointed out (p. 288) that in determining whether prejudice resulted in a particular case, the vice of the instruction must be kept in mind, viz., that ‘The party against whom the presumption is invoked must not only overcome by a preponderance of the evidence the case presented by the opposing party, but must also overcome the presumption, for in the language of the instruction, conflicting evidence must be weighed “against the presumption, and any evidence that supports the presumption, to determine which, if either, preponderates.” ’ (Italics added.) Since plaintiff testified fu

1956It was there pointed out (p. 288) that in determining whether prejudice resulted in a particular case, the vice of the instruction must be kept in mind, viz., that ‘The party against whom the presumption is invoked must not only overcome by a preponderance of the evidence the case presented by the opposing party, but must also overcome the presumption, for in the language of the instruction, conflicting evidence must be weighed “against the presumption, and any evidence that supports the presumption, to determine which, if either, preponderates.” ’ (Italics added.) Since plaintiff testified fu

1997(Cf. People v. Benn (1972) 7 Cal.3d 530, 534-535 [ 102 Cal.Rptr. 593 , 498 P.2d 433 ].) Neither version of the law supports such a retraction.

1997(Cf. People v. Benn (1972) 7 Cal.3d 530, 534-535 [ 102 Cal.Rptr. 593 , 498 P.2d 433 ].) Neither version of the law supports such a retraction.

1992Although both it and CALJIC No. 2.90 have been criticized (see, e.g., People v. Brigham (1979) 25 Cal.3d 283, 292 [ 157 Cal.Rptr. 905 , 599 P.2d 100 ] (cone. opn. of Mosk, J.), at least one appellate court has rejected as “frivolous” the contention section 1096 is unduly vague or otherwise unconstitutional (People v. Wade (1971) 15 Cal.App.3d 16, 25 [ 92 Cal.Rptr. 750 ], cert. den. 405 U.S. 925 [ 30 L.Ed.2d 797 , 92 S.Ct. 972 ]).

1992Although both it and CALJIC No. 2.90 have been criticized (see, e.g., People v. Brigham (1979) 25 Cal.3d 283, 292 [ 157 Cal.Rptr. 905 , 599 P.2d 100 ] (cone. opn. of Mosk, J.), at least one appellate court has rejected as “frivolous” the contention section 1096 is unduly vague or otherwise unconstitutional (People v. Wade (1971) 15 Cal.App.3d 16, 25 [ 92 Cal.Rptr. 750 ], cert. den. 405 U.S. 925 [ 30 L.Ed.2d 797 , 92 S.Ct. 972 ]).

1992That instruction defines a "reasonable doubt" as one that leaves "the minds of the jurors in that condition that they cannot say that they feel an abiding conviction to a moral certainty of the truth of the charge." Unadorned "moral certainty" of defendant's guilt was thus the measure given the jury in this case; there was no Cage -like dilution of the standard required to convict. ( People v. Jennings, supra, 53 Cal.3d at p. 386; see also People v. Johnson (1992) 3 Cal.4th 1183, 1235 [ 14 Cal. Rptr.2d 702 , 842 P.2d 1 ].) Likewise, we reject as we did in Jennings, supra, 53 Cal.3d at page 386

1992That instruction defines a "reasonable doubt" as one that leaves "the minds of the jurors in that condition that they cannot say that they feel an abiding conviction to a moral certainty of the truth of the charge." Unadorned "moral certainty" of defendant's guilt was thus the measure given the jury in this case; there was no Cage -like dilution of the standard required to convict. ( People v. Jennings, supra, 53 Cal.3d at p. 386; see also People v. Johnson (1992) 3 Cal.4th 1183, 1235 [ 14 Cal. Rptr.2d 702 , 842 P.2d 1 ].) Likewise, we reject as we did in Jennings, supra, 53 Cal.3d at page 386

1992That instruction defines a "reasonable doubt" as one that leaves "the minds of the jurors in that condition that they cannot say that they feel an abiding conviction to a moral certainty of the truth of the charge." Unadorned "moral certainty" of defendant's guilt was thus the measure given the jury in this case; there was no Cage -like dilution of the standard required to convict. ( People v. Jennings, supra, 53 Cal.3d at p. 386; see also People v. Johnson (1992) 3 Cal.4th 1183, 1235 [ 14 Cal. Rptr.2d 702 , 842 P.2d 1 ].) Likewise, we reject as we did in Jennings, supra, 53 Cal.3d at page 386

1992That instruction defines a "reasonable doubt" as one that leaves "the minds of the jurors in that condition that they cannot say that they feel an abiding conviction to a moral certainty of the truth of the charge." Unadorned "moral certainty" of defendant's guilt was thus the measure given the jury in this case; there was no Cage -like dilution of the standard required to convict. ( People v. Jennings, supra, 53 Cal.3d at p. 386; see also People v. Johnson (1992) 3 Cal.4th 1183, 1235 [ 14 Cal. Rptr.2d 702 , 842 P.2d 1 ].) Likewise, we reject as we did in Jennings, supra, 53 Cal.3d at page 386

1992Although both it and CALJIC No. 2.90 have been criticized (see, e.g., People v. Brigham (1979) 25 Cal.3d 283, 292 [ 157 Cal.Rptr. 905 , 599 P.2d 100 ] (cone. opn. of Mosk, J.), at least one appellate court has rejected as “frivolous” the contention section 1096 is unduly vague or otherwise unconstitutional (People v. Wade (1971) 15 Cal.App.3d 16, 25 [ 92 Cal.Rptr. 750 ], cert. den. 405 U.S. 925 [ 30 L.Ed.2d 797 , 92 S.Ct. 972 ]).

1992Although both it and CALJIC No. 2.90 have been criticized (see, e.g., People v. Brigham (1979) 25 Cal.3d 283, 292 [ 157 Cal.Rptr. 905 , 599 P.2d 100 ] (cone. opn. of Mosk, J.), at least one appellate court has rejected as “frivolous” the contention section 1096 is unduly vague or otherwise unconstitutional (People v. Wade (1971) 15 Cal.App.3d 16, 25 [ 92 Cal.Rptr. 750 ], cert. den. 405 U.S. 925 [ 30 L.Ed.2d 797 , 92 S.Ct. 972 ]).

1980(Cf. Neumann v. Bishop (1976) 59 Cal.App.3d 451, 487 [ 130 Cal.Rptr. 786 ]; Hart v. Wielt (1970) 4 Cal.App.3d 224, 234 [ 84 Cal.Rptr. 220 ]; see also In re Pike (1967) 66 Cal.2d 170, 172 [ 57 Cal.Rptr. 172 , 424 P.2d 724 ]; People v. Morse (1964) 60 Cal.2d 631, 649-650 [ 36 Cal.Rptr. 201 , 388 P.2d 33 , 12 A.L.R.3d 810 ].) Plaintiff contends that defendants’ claim of prejudice is wholly speculative, disregards the presumption that jurors adhere to the court’s instructions, and is not supported by a single shred of evidence in the record.

1980(Cf. Neumann v. Bishop (1976) 59 Cal.App.3d 451, 487 [ 130 Cal.Rptr. 786 ]; Hart v. Wielt (1970) 4 Cal.App.3d 224, 234 [ 84 Cal.Rptr. 220 ]; see also In re Pike (1967) 66 Cal.2d 170, 172 [ 57 Cal.Rptr. 172 , 424 P.2d 724 ]; People v. Morse (1964) 60 Cal.2d 631, 649-650 [ 36 Cal.Rptr. 201 , 388 P.2d 33 , 12 A.L.R.3d 810 ].) Plaintiff contends that defendants’ claim of prejudice is wholly speculative, disregards the presumption that jurors adhere to the court’s instructions, and is not supported by a single shred of evidence in the record.

1980(Cf. Neumann v. Bishop (1976) 59 Cal.App.3d 451, 487 [ 130 Cal.Rptr. 786 ]; Hart v. Wielt (1970) 4 Cal.App.3d 224, 234 [ 84 Cal.Rptr. 220 ]; see also In re Pike (1967) 66 Cal.2d 170, 172 [ 57 Cal.Rptr. 172 , 424 P.2d 724 ]; People v. Morse (1964) 60 Cal.2d 631, 649-650 [ 36 Cal.Rptr. 201 , 388 P.2d 33 , 12 A.L.R.3d 810 ].) Plaintiff contends that defendants’ claim of prejudice is wholly speculative, disregards the presumption that jurors adhere to the court’s instructions, and is not supported by a single shred of evidence in the record.

1980(Cf. Neumann v. Bishop (1976) 59 Cal.App.3d 451, 487 [ 130 Cal.Rptr. 786 ]; Hart v. Wielt (1970) 4 Cal.App.3d 224, 234 [ 84 Cal.Rptr. 220 ]; see also In re Pike (1967) 66 Cal.2d 170, 172 [ 57 Cal.Rptr. 172 , 424 P.2d 724 ]; People v. Morse (1964) 60 Cal.2d 631, 649-650 [ 36 Cal.Rptr. 201 , 388 P.2d 33 , 12 A.L.R.3d 810 ].) Plaintiff contends that defendants’ claim of prejudice is wholly speculative, disregards the presumption that jurors adhere to the court’s instructions, and is not supported by a single shred of evidence in the record.

1980(Cf. Neumann v. Bishop (1976) 59 Cal.App.3d 451, 487 [ 130 Cal.Rptr. 786 ]; Hart v. Wielt (1970) 4 Cal.App.3d 224, 234 [ 84 Cal.Rptr. 220 ]; see also In re Pike (1967) 66 Cal.2d 170, 172 [ 57 Cal.Rptr. 172 , 424 P.2d 724 ]; People v. Morse (1964) 60 Cal.2d 631, 649-650 [ 36 Cal.Rptr. 201 , 388 P.2d 33 , 12 A.L.R.3d 810 ].) Plaintiff contends that defendants’ claim of prejudice is wholly speculative, disregards the presumption that jurors adhere to the court’s instructions, and is not supported by a single shred of evidence in the record.

1980(Cf. Neumann v. Bishop (1976) 59 Cal.App.3d 451, 487 [ 130 Cal.Rptr. 786 ]; Hart v. Wielt (1970) 4 Cal.App.3d 224, 234 [ 84 Cal.Rptr. 220 ]; see also In re Pike (1967) 66 Cal.2d 170, 172 [ 57 Cal.Rptr. 172 , 424 P.2d 724 ]; People v. Morse (1964) 60 Cal.2d 631, 649-650 [ 36 Cal.Rptr. 201 , 388 P.2d 33 , 12 A.L.R.3d 810 ].) Plaintiff contends that defendants’ claim of prejudice is wholly speculative, disregards the presumption that jurors adhere to the court’s instructions, and is not supported by a single shred of evidence in the record.

1980(Cf. Neumann v. Bishop (1976) 59 Cal.App.3d 451, 487 [ 130 Cal.Rptr. 786 ]; Hart v. Wielt (1970) 4 Cal.App.3d 224, 234 [ 84 Cal.Rptr. 220 ]; see also In re Pike (1967) 66 Cal.2d 170, 172 [ 57 Cal.Rptr. 172 , 424 P.2d 724 ]; People v. Morse (1964) 60 Cal.2d 631, 649-650 [ 36 Cal.Rptr. 201 , 388 P.2d 33 , 12 A.L.R.3d 810 ].) Plaintiff contends that defendants’ claim of prejudice is wholly speculative, disregards the presumption that jurors adhere to the court’s instructions, and is not supported by a single shred of evidence in the record.

1980(Cf. Neumann v. Bishop (1976) 59 Cal.App.3d 451, 487 [ 130 Cal.Rptr. 786 ]; Hart v. Wielt (1970) 4 Cal.App.3d 224, 234 [ 84 Cal.Rptr. 220 ]; see also In re Pike (1967) 66 Cal.2d 170, 172 [ 57 Cal.Rptr. 172 , 424 P.2d 724 ]; People v. Morse (1964) 60 Cal.2d 631, 649-650 [ 36 Cal.Rptr. 201 , 388 P.2d 33 , 12 A.L.R.3d 810 ].) Plaintiff contends that defendants’ claim of prejudice is wholly speculative, disregards the presumption that jurors adhere to the court’s instructions, and is not supported by a single shred of evidence in the record.

1975(Williams v. Daily Review, Inc. (1965) 236 Cal.App.2d 405, 417 [ 46 Cal.Rptr. 135 ]; Kramer v. Ferguson (1964) 230 Cal.App.2d 237, 245 [ 41 Cal.Rptr. 61 ].) As the court said in the Kramer case: “The real vice of this instruction, as well as the charge as a whole, is that it left for the jury to determine whether the privilege accorded by subdivision 3 of section 47 did or did not attach to the communications in question. [H] The court should have instructed the jury that the law gives to one who publishes this type of communication a privilege to do so and that the only issue for it to determ

1975(Williams v. Daily Review, Inc. (1965) 236 Cal.App.2d 405, 417 [ 46 Cal.Rptr. 135 ]; Kramer v. Ferguson (1964) 230 Cal.App.2d 237, 245 [ 41 Cal.Rptr. 61 ].) As the court said in the Kramer case: “The real vice of this instruction, as well as the charge as a whole, is that it left for the jury to determine whether the privilege accorded by subdivision 3 of section 47 did or did not attach to the communications in question. [H] The court should have instructed the jury that the law gives to one who publishes this type of communication a privilege to do so and that the only issue for it to determ

1975(Williams v. Daily Review, Inc. (1965) 236 Cal.App.2d 405, 417 [ 46 Cal.Rptr. 135 ]; Kramer v. Ferguson (1964) 230 Cal.App.2d 237, 245 [ 41 Cal.Rptr. 61 ].) As the court said in the Kramer case: “The real vice of this instruction, as well as the charge as a whole, is that it left for the jury to determine whether the privilege accorded by subdivision 3 of section 47 did or did not attach to the communications in question. [H] The court should have instructed the jury that the law gives to one who publishes this type of communication a privilege to do so and that the only issue for it to determ

1975(Williams v. Daily Review, Inc. (1965) 236 Cal.App.2d 405, 417 [ 46 Cal.Rptr. 135 ]; Kramer v. Ferguson (1964) 230 Cal.App.2d 237, 245 [ 41 Cal.Rptr. 61 ].) As the court said in the Kramer case: “The real vice of this instruction, as well as the charge as a whole, is that it left for the jury to determine whether the privilege accorded by subdivision 3 of section 47 did or did not attach to the communications in question. [H] The court should have instructed the jury that the law gives to one who publishes this type of communication a privilege to do so and that the only issue for it to determ

1970The vice of the instruction lies in its disjunctive phrase, which amounts to a statement that mere negligence in inquiry amounts to malice. “[Ojrdinarily the privilege is lost if defendant had no reasonable grounds for believing his statements to be true” (Brewer v. Second Baptist Church, 32 Cal.2d 791, 797 [ 197 P.2d 713 ]).

1970The vice of the instruction lies in its disjunctive phrase, which amounts to a statement that mere negligence in inquiry amounts to malice. “[Ojrdinarily the privilege is lost if defendant had no reasonable grounds for believing his statements to be true” (Brewer v. Second Baptist Church, 32 Cal.2d 791, 797 [ 197 P.2d 713 ]).

1963Since defendant was deprived of the right to a jury determination of the only real issue in the case, the conviction must be reversed, for the denial of such a right itself is a miscarriage of justice within the meaning of article VI, section 4 1/2, of the Constitution. ( People v. McKay, 37 Cal.2d 792, 798 [ 236 P.2d 145 ]; People v. Sarazzawski, 27 Cal.2d 7, 11 [ 161 P.2d 934 ]; People v. Mahoney, 201 Cal. 618, 627 [ 258 P. 607 ].) Since the judgment must be reversed, we shall consider other contentions that may arise on retrial. [7a] Defendant's contention that the trial court erred in admi

1963Since defendant was deprived of the right to a jury determination of the only real issue in the case, the conviction must be reversed, for the denial of such a right itself is a miscarriage of justice within the meaning of article VI, section 4 1/2, of the Constitution. ( People v. McKay, 37 Cal.2d 792, 798 [ 236 P.2d 145 ]; People v. Sarazzawski, 27 Cal.2d 7, 11 [ 161 P.2d 934 ]; People v. Mahoney, 201 Cal. 618, 627 [ 258 P. 607 ].) Since the judgment must be reversed, we shall consider other contentions that may arise on retrial. [7a] Defendant's contention that the trial court erred in admi

1963Since defendant was deprived of the right to a jury determination of the only real issue in the case, the conviction must be reversed, for the denial of such a right itself is a miscarriage of justice within the meaning of article VI, section 4 1/2, of the Constitution. ( People v. McKay, 37 Cal.2d 792, 798 [ 236 P.2d 145 ]; People v. Sarazzawski, 27 Cal.2d 7, 11 [ 161 P.2d 934 ]; People v. Mahoney, 201 Cal. 618, 627 [ 258 P. 607 ].) Since the judgment must be reversed, we shall consider other contentions that may arise on retrial. [7a] Defendant's contention that the trial court erred in admi

1963Since defendant was deprived of the right to a jury determination of the only real issue in the case, the conviction must be reversed, for the denial of such a right itself is a miscarriage of justice within the meaning of article VI, section 4 1/2, of the Constitution. ( People v. McKay, 37 Cal.2d 792, 798 [ 236 P.2d 145 ]; People v. Sarazzawski, 27 Cal.2d 7, 11 [ 161 P.2d 934 ]; People v. Mahoney, 201 Cal. 618, 627 [ 258 P. 607 ].) Since the judgment must be reversed, we shall consider other contentions that may arise on retrial. [7a] Defendant's contention that the trial court erred in admi

1963Since defendant was deprived of the right to a jury determination of the only real issue in the case, the conviction must be reversed, for the denial of such a right itself is a miscarriage of justice within the meaning of article VI, section 4 1/2, of the Constitution. ( People v. McKay, 37 Cal.2d 792, 798 [ 236 P.2d 145 ]; People v. Sarazzawski, 27 Cal.2d 7, 11 [ 161 P.2d 934 ]; People v. Mahoney, 201 Cal. 618, 627 [ 258 P. 607 ].) Since the judgment must be reversed, we shall consider other contentions that may arise on retrial. [7a] Defendant's contention that the trial court erred in admi

1963Since defendant was deprived of the right to a jury determination of the only real issue in the case, the conviction must be reversed, for the denial of such a right itself is a miscarriage of justice within the meaning of article VI, section 4 1/2, of the Constitution. ( People v. McKay, 37 Cal.2d 792, 798 [ 236 P.2d 145 ]; People v. Sarazzawski, 27 Cal.2d 7, 11 [ 161 P.2d 934 ]; People v. Mahoney, 201 Cal. 618, 627 [ 258 P. 607 ].) Since the judgment must be reversed, we shall consider other contentions that may arise on retrial. [7a] Defendant's contention that the trial court erred in admi

1961We note that it stopped short of emphasizing the interest of the jurors as taxpayers which was the vice of the instruction criticized in People v. Loop, 127 Cal.App.2d 786, 805 [ 274 P.2d 885 ].

1961We note that it stopped short of emphasizing the interest of the jurors as taxpayers which was the vice of the instruction criticized in People v. Loop, 127 Cal.App.2d 786, 805 [ 274 P.2d 885 ].

1957Co., 126 Cal.App.2d 303, 309 [ 272 P.2d 71 ].) The error in the instruction was not cured by the giving of the instruction known as BAJI 144 A, for the reason, among others, that it contains this misleading language: "[A] nd if the speed of a vehicle upon a highway is in excess of the applicable prima facie limit, such speed is unlawful unless proved to be not in violation of the basic speed law.” The question arises whether the use of the word “defendant” in the second paragraph of section 511 cures the vice of the instruction when it is directed at the question of plaintiff’s contributory ne

1957Co., 126 Cal.App.2d 303, 309 [ 272 P.2d 71 ].) The error in the instruction was not cured by the giving of the instruction known as BAJI 144 A, for the reason, among others, that it contains this misleading language: "[A] nd if the speed of a vehicle upon a highway is in excess of the applicable prima facie limit, such speed is unlawful unless proved to be not in violation of the basic speed law.” The question arises whether the use of the word “defendant” in the second paragraph of section 511 cures the vice of the instruction when it is directed at the question of plaintiff’s contributory ne

1955(McQuigg v. Childs, 213 Cal. 661 [ 3 P.2d 309 ].)” (Salomon v. Meyer, 1 Cal.2d 11, 15 [ 32 P.2d 631 ].) The admonition has been frequently stated that it is dangerous to frame an instruction upon isolated extracts from the opinions of the court.

1955(McQuigg v. Childs, 213 Cal. 661 [ 3 P.2d 309 ].)” (Salomon v. Meyer, 1 Cal.2d 11, 15 [ 32 P.2d 631 ].) The admonition has been frequently stated that it is dangerous to frame an instruction upon isolated extracts from the opinions of the court.

1953Assuming that under some circumstances a jury might be told that a voluntary but false confession has some probative value, the instruction should, nevertheless, be carefully qualified to point out the evidentiary effect of such a confession.” (People v. Woods, 35 Cal.2d 504, 510-511 [ 218 P.2d 981 ].) A false confession “is not evidence from which the jury may infer that the one who falsified committed the illegal act.

1953Assuming that under some circumstances a jury might be told that a voluntary but false confession has some probative value, the instruction should, nevertheless, be carefully qualified to point out the evidentiary effect of such a confession.” (People v. Woods, 35 Cal.2d 504, 510-511 [ 218 P.2d 981 ].) A false confession “is not evidence from which the jury may infer that the one who falsified committed the illegal act.

1950The instruction did not contain the vice of the instruction criticized in People v. Watson, 165 Cal. 645, 654-655 [ 133 P. 298 ], We find no merit in the claim that the jury was not instructed that they must all agree on the defendant’s intent either of “arousing, appealing to or gratifying the lusts or passions or sexual desires” of defendant or those of the child.

1950The instruction did not contain the vice of the instruction criticized in People v. Watson, 165 Cal. 645, 654-655 [ 133 P. 298 ], We find no merit in the claim that the jury was not instructed that they must all agree on the defendant’s intent either of “arousing, appealing to or gratifying the lusts or passions or sexual desires” of defendant or those of the child.

1948(Schomberg v. Walker, 132 Cal. 224, 230 [ 64 P. 290 ]; Davis v. Hearst, supra, 173 ; Lewis v. Hayes, 165 Cal. 527 , 533 *801 [ 132 P. 1022 , Ann.Cas. 1914D 148]; see Clark v. McClurg, 215 Cal. 279, 282 [ 9 P.2d 505 , 81 A.L.R. 908 ].) As this court stated in Davis v. Hearst and reiterated in Lewis v. Hayes , in speaking of an instruction nearly identical with the one in question, “The vice of this instruction is that it tells the jury that, upon finding malice in fact, the plaintiff is entitled, as of right, to an award of punitive damages.

1948(Schomberg v. Walker, 132 Cal. 224, 230 [ 64 P. 290 ]; Davis v. Hearst, supra, 173 ; Lewis v. Hayes, 165 Cal. 527 , 533 *801 [ 132 P. 1022 , Ann.Cas. 1914D 148]; see Clark v. McClurg, 215 Cal. 279, 282 [ 9 P.2d 505 , 81 A.L.R. 908 ].) As this court stated in Davis v. Hearst and reiterated in Lewis v. Hayes , in speaking of an instruction nearly identical with the one in question, “The vice of this instruction is that it tells the jury that, upon finding malice in fact, the plaintiff is entitled, as of right, to an award of punitive damages.

1948(Schomberg v. Walker, 132 Cal. 224, 230 [ 64 P. 290 ]; Davis v. Hearst, supra, 173 ; Lewis v. Hayes, 165 Cal. 527 , 533 *801 [ 132 P. 1022 , Ann.Cas. 1914D 148]; see Clark v. McClurg, 215 Cal. 279, 282 [ 9 P.2d 505 , 81 A.L.R. 908 ].) As this court stated in Davis v. Hearst and reiterated in Lewis v. Hayes , in speaking of an instruction nearly identical with the one in question, “The vice of this instruction is that it tells the jury that, upon finding malice in fact, the plaintiff is entitled, as of right, to an award of punitive damages.

1948(Schomberg v. Walker, 132 Cal. 224, 230 [ 64 P. 290 ]; Davis v. Hearst, supra, 173 ; Lewis v. Hayes, 165 Cal. 527 , 533 *801 [ 132 P. 1022 , Ann.Cas. 1914D 148]; see Clark v. McClurg, 215 Cal. 279, 282 [ 9 P.2d 505 , 81 A.L.R. 908 ].) As this court stated in Davis v. Hearst and reiterated in Lewis v. Hayes , in speaking of an instruction nearly identical with the one in question, “The vice of this instruction is that it tells the jury that, upon finding malice in fact, the plaintiff is entitled, as of right, to an award of punitive damages.