Redbook instruction in District of Columbia

2011Four years earlier in Butler, supra note 31 , 646 A.2d at 337 , this court had warned with respect to the previous Redbook instruction: "We have approved a standard [reasonable doubt] instruction; we are comfortable with it; and a trial court takes unnecessary risks with the criminal justice process by tinkering with it.

2011Four years earlier in Butler, supra note 31 , 646 A.2d at 337 , this court had warned with respect to the previous Redbook instruction: "We have approved a standard [reasonable doubt] instruction; we are comfortable with it; and a trial court takes unnecessary risks with the criminal justice process by tinkering with it.

1996See Bryant v. United States, 599 A.2d 1107 (D.C.1991) (post-seizure identification evidence inadmissible where it was the product of a warrantless entry into defendant's rooming house). [12] A fourth case pending before a division of this court involves complete rejection of the Redbook instruction by a judge in favor of the model federal instruction on reasonable doubt, discussed infra. [13] "The adjective `abiding' borders on the archaic, hence may carry little precise meaning to modern ears; and `conviction' has its own potential for confusion with, say, conviction for a crime." Foreman, 63

1996See Bryant v. United States, 599 A.2d 1107 (D.C.1991) (post-seizure identification evidence inadmissible where it was the product of a warrantless entry into defendant's rooming house). [12] A fourth case pending before a division of this court involves complete rejection of the Redbook instruction by a judge in favor of the model federal instruction on reasonable doubt, discussed infra. [13] "The adjective `abiding' borders on the archaic, hence may carry little precise meaning to modern ears; and `conviction' has its own potential for confusion with, say, conviction for a crime." Foreman, 63

1998See, e.g., Proctor, supra note 8, 685 A.2d 735, 738 (trial court revised and deleted parts of the Redbook instruction); Butler, supra, 646 A.2d at 335-36 (same); Foreman, supra note 4, 633 A.2d at 794 (trial court substituted different language for phrase “abiding conviction” in Redbook instruction).

1998See, e.g., Proctor, supra note 8, 685 A.2d 735, 738 (trial court revised and deleted parts of the Redbook instruction); Butler, supra, 646 A.2d at 335-36 (same); Foreman, supra note 4, 633 A.2d at 794 (trial court substituted different language for phrase “abiding conviction” in Redbook instruction).

1998D.C. 203, 204 & n. 4, 345 F.2d 97 , 98 & n. 4 (1965). 5 The Supreme Court also has approved some of the definitional terms from the Redbook instruction.

1998D.C. 203, 204 & n. 4, 345 F.2d 97 , 98 & n. 4 (1965). 5 The Supreme Court also has approved some of the definitional terms from the Redbook instruction.

2011See, e.g., Brown v. United States, 881 A.2d 586, 596 (D.C.2005) (trial court's mistaken use of pre-Smith Redbook instruction on "reasonable doubt" was not, after review, "constitutionally deficient”); Butler, supra notes 31 and 45, 646 A.2d at 337 (omission of clause required by standard Redbook instruction on "reasonable doubt,” while "improper,” did "not create a constitutionally deficient instruction under the particular circumstances of this case”).

2011See, e.g., Brown v. United States, 881 A.2d 586, 596 (D.C.2005) (trial court's mistaken use of pre- Smith Redbook instruction on "reasonable doubt" was not, after review, "constitutionally deficient"); Butler, supra notes 31and 45, 646 A.2d at 337 (omission of clause required by standard Redbook instruction on "reasonable doubt," while "improper," did "not create a constitutionally deficient instruction under the particular circumstances of this case").

2006She first argued that “[i]f the charge is first[-]degree murder based upon an alleged deliberate and premeditated killing, the abettor is not guilty of this degree of the crime unless he [or she] either acted upon a premeditated design to cause the death of the deceased or knew that the perpetrator was acting with such an intent. ...” Hackney, 389 A.2d at 1341 (emphasis added) (quoting at 662).

2006She first argued that “[i]f the charge is first[-]degree murder based upon an alleged deliberate and premeditated killing, the abettor is not guilty of this degree of the crime unless he [or she] either acted upon a premeditated design to cause the death of the deceased or knew that the perpetrator was acting with such an intent. ...” Hackney, 389 A.2d at 1341 (emphasis added) (quoting at 662).

1998See, e.g., Victor, supra, 511 U.S. at 14-15 , 114 5.Ct. at 1247 (“An instruction cast in terms of an abiding conviction as to guilt, without reference to moral certainty, correctly states the government’s burden of proof.”); Wilson v. United States, 232 U.S. 563, 570 , 34 S.Ct. 347, 349 , 58 L.Ed. 728 (1914) (reasonable doubt defined accurately as an ‘(abiding conviction of defendant’s guilt” and a doubt which would cause a juror to “pause and hesitate” before acting in important personal affairs). 6 Thus, although arguably not ideal, the Redbook instruction has withstood over time various con

1998See, e.g., Victor, supra, 511 U.S. at 14-15 , 114 5.Ct. at 1247 (“An instruction cast in terms of an abiding conviction as to guilt, without reference to moral certainty, correctly states the government’s burden of proof.”); Wilson v. United States, 232 U.S. 563, 570 , 34 S.Ct. 347, 349 , 58 L.Ed. 728 (1914) (reasonable doubt defined accurately as an ‘(abiding conviction of defendant’s guilt” and a doubt which would cause a juror to “pause and hesitate” before acting in important personal affairs). 6 Thus, although arguably not ideal, the Redbook instruction has withstood over time various con

2011The Redbook instruction at the time of trial, see supra note 7, contained the Smith instruction verbatim. [11] Id. at 82 . [12] 932 A.2d 1095 (D.C.2007). [13] Compare id. at 1102 with Smith, supra note 9 , 709 A.2d at 82 . [14] Smith, supra note 9 , 709 A.2d at 83 (citation omitted). [15] See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C.1971) ("[N]o division of this court will overrule a prior decision of this court[;] ... such result can only be accomplished by this court en banc.") (footnote omitted). [16] See text accompanying supra note 13. [17] Defendants asked for language that proof beyond a

2011The Redbook instruction at the time of trial, see supra note 7, contained the Smith instruction verbatim. [11] Id. at 82 . [12] 932 A.2d 1095 (D.C.2007). [13] Compare id. at 1102 with Smith, supra note 9 , 709 A.2d at 82 . [14] Smith, supra note 9 , 709 A.2d at 83 (citation omitted). [15] See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C.1971) ("[N]o division of this court will overrule a prior decision of this court[;] ... such result can only be accomplished by this court en banc.") (footnote omitted). [16] See text accompanying supra note 13. [17] Defendants asked for language that proof beyond a

1998Sullivan, supra, 508 U.S. at 279-80 , 113 S.Ct. at 2081-82 (citations omitted). [8] As observed in Proctor v. United States, 685 A.2d 735, 741 (D.C.1996), underlying these deviations from the Redbook instruction, is a dissatisfaction by trial judges with what seems to them "awkward, archaic, hard-to-comprehend, or misleading [language]" in the standard instruction.

1998Sullivan, supra, 508 U.S. at 279-80 , 113 S.Ct. at 2081-82 (citations omitted). [8] As observed in Proctor v. United States, 685 A.2d 735, 741 (D.C.1996), underlying these deviations from the Redbook instruction, is a dissatisfaction by trial judges with what seems to them "awkward, archaic, hard-to-comprehend, or misleading [language]" in the standard instruction.

1998See, e.g., Butler v. United States, 646 A.2d 331, 333-35 (D.C.1994), cert. denied, 514 U.S. 1009 , 115 S.Ct. 1326 , 131 L.Ed.2d 206 (1995). 3 I also agree with the court that the trial judge’s instruction in the present case did not deprive Smith of liberty without due process of law.

1998See, e.g., Butler v. United States, 646 A.2d 331, 333-35 (D.C.1994), cert. denied, 514 U.S. 1009 , 115 S.Ct. 1326 , 131 L.Ed.2d 206 (1995). 3 I also agree with the court that the trial judge’s instruction in the present case did not deprive Smith of liberty without due process of law.

2011The Redbook instruction at the time of trial, see supra note 7, contained the Smith instruction verbatim. [11] Id. at 82 . [12] 932 A.2d 1095 (D.C.2007). [13] Compare id. at 1102 with Smith, supra note 9 , 709 A.2d at 82 . [14] Smith, supra note 9 , 709 A.2d at 83 (citation omitted). [15] See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C.1971) ("[N]o division of this court will overrule a prior decision of this court[;] ... such result can only be accomplished by this court en banc.") (footnote omitted). [16] See text accompanying supra note 13. [17] Defendants asked for language that proof beyond a

2011The Redbook instruction at the time of trial, see supra note 7, contained the Smith instruction verbatim. [11] Id. at 82 . [12] 932 A.2d 1095 (D.C.2007). [13] Compare id. at 1102 with Smith, supra note 9 , 709 A.2d at 82 . [14] Smith, supra note 9 , 709 A.2d at 83 (citation omitted). [15] See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C.1971) ("[N]o division of this court will overrule a prior decision of this court[;] ... such result can only be accomplished by this court en banc.") (footnote omitted). [16] See text accompanying supra note 13. [17] Defendants asked for language that proof beyond a

2008See also Mullaney v. Wilbur, 421 U.S. 684, 696 , 95 S.Ct. 1881 , 44 L.Ed.2d 508 (1975) ("[T]he presence or absence of the heat of passion on sudden provocation ... has been, almost from the inception of the common law of homicide, the single most important factor in determining the degree of culpability attaching to an unlawful homicide.”). 5 .The Redbook instruction the court referred to is as follows: Mitigating circumstances exist where a person acts in the heat of passion caused by adequate provocation.

2008See also Mullaney v. Wilbur, 421 U.S. 684, 696 , 95 S.Ct. 1881 , 44 L.Ed.2d 508 (1975) ("[T]he presence or absence of the heat of passion on sudden provocation ... has been, almost from the inception of the common law of homicide, the single most important factor in determining the degree of culpability attaching to an unlawful homicide.”). 5 .The Redbook instruction the court referred to is as follows: Mitigating circumstances exist where a person acts in the heat of passion caused by adequate provocation.

2006See Pinkerton v. United States, 328 U.S. 640, 646-47 , 66 S.Ct. 1180 , 90 L.Ed. 1489 (1946); Thomas v. United States, 748 A.2d 931, 934 (D.C.2000).

2006See Pinkerton v. United States, 328 U.S. 640, 646-47 , 66 S.Ct. 1180 , 90 L.Ed. 1489 (1946); Thomas v. United States, 748 A.2d 931, 934 (D.C.2000).

2006See Pinkerton v. United States, 328 U.S. 640, 646-47 , 66 S.Ct. 1180 , 90 L.Ed. 1489 (1946); Thomas v. United States, 748 A.2d 931, 934 (D.C.2000).

2006See Pinkerton v. United States, 328 U.S. 640, 646-47 , 66 S.Ct. 1180 , 90 L.Ed. 1489 (1946); Thomas v. United States, 748 A.2d 931, 934 (D.C.2000).

2006Given the judge’s ruling on the objection to “criminal venture” and his explanation of that ruling, any further argument by defense counsel regarding the “natural and probable consequences” instruction, and any further contention that the aider or abettor must be shown to have the specific intent to Mil the decedent, “would have fallen on deaf judicial ears.... ” Reams v. United States, 895 A.2d 914, 921 (D.C.2006).

2006Little v. United States, 709 A.2d 708, 711 (D.C.1998); accord, Brown v. United States, 881 A.2d 586, 593 (D.C. 2005).

2006Little v. United States, 709 A.2d 708, 711 (D.C.1998); accord, Brown v. United States, 881 A.2d 586, 593 (D.C. 2005).

2005See Erskines v. United States, 696 A.2d 1077, 1080 (D.C.1997) (“[T]he jury was correctly told that to convict [the appellant] as an aider and abettor it had to find that he ‘knowingly associated himself with the person who committed the crime ....”) (citation omitted); Hammon v. United States, 695 A.2d 97, 107 (D.C.1997) (trial court did not err in “instructing the jury that it could convict defendants as aiders and abettors ... as long as the defendants knowingly associated themselves with the principal; participated in the crime, and intended to help the crime succeed”).

2005See Erskines v. United States, 696 A.2d 1077, 1080 (D.C.1997) (“[T]he jury was correctly told that to convict [the appellant] as an aider and abettor it had to find that he ‘knowingly associated himself with the person who committed the crime ....”) (citation omitted); Hammon v. United States, 695 A.2d 97, 107 (D.C.1997) (trial court did not err in “instructing the jury that it could convict defendants as aiders and abettors ... as long as the defendants knowingly associated themselves with the principal; participated in the crime, and intended to help the crime succeed”).

2005See Erskines v. United States, 696 A.2d 1077, 1080 (D.C.1997) (“[T]he jury was correctly told that to convict [the appellant] as an aider and abettor it had to find that he ‘knowingly associated himself with the person who committed the crime ....”) (citation omitted); Hammon v. United States, 695 A.2d 97, 107 (D.C.1997) (trial court did not err in “instructing the jury that it could convict defendants as aiders and abettors ... as long as the defendants knowingly associated themselves with the principal; participated in the crime, and intended to help the crime succeed”).

2005See Erskines v. United States, 696 A.2d 1077, 1080 (D.C.1997) (“[T]he jury was correctly told that to convict [the appellant] as an aider and abettor it had to find that he ‘knowingly associated himself with the person who committed the crime ....”) (citation omitted); Hammon v. United States, 695 A.2d 97, 107 (D.C.1997) (trial court did not err in “instructing the jury that it could convict defendants as aiders and abettors ... as long as the defendants knowingly associated themselves with the principal; participated in the crime, and intended to help the crime succeed”).

2005Sousa v. United States, 400 A.2d 1036, 1044 (D.C.), cert. denied, 444 U.S. 981 , 100 S.Ct. 484 , 62 L.Ed.2d 408 (1979). .

2005Sousa v. United States, 400 A.2d 1036, 1044 (D.C.), cert. denied, 444 U.S. 981 , 100 S.Ct. 484 , 62 L.Ed.2d 408 (1979). .

2004See DiGiovanni, supra, 580 A.2d at 126 (citing Marcinski v. United States, 479 A.2d 856, 861-62 (D.C.1984), cert. denied, 469 U.S. 1224 , 105 S.Ct. 1216 , 84 L.Ed.2d 357 (1985)).

2004See DiGiovanni, supra, 580 A.2d at 126 (citing Marcinski v. United States, 479 A.2d 856, 861-62 (D.C.1984), cert. denied, 469 U.S. 1224 , 105 S.Ct. 1216 , 84 L.Ed.2d 357 (1985)).

2004See DiGiovanni, supra, 580 A.2d at 126 (citing Marcinski v. United States, 479 A.2d 856, 861-62 (D.C.1984), cert. denied, 469 U.S. 1224 , 105 S.Ct. 1216 , 84 L.Ed.2d 357 (1985)).

2004See DiGiovanni, supra, 580 A.2d at 126 (citing Marcinski v. United States, 479 A.2d 856, 861-62 (D.C.1984), cert. denied, 469 U.S. 1224 , 105 S.Ct. 1216 , 84 L.Ed.2d 357 (1985)).

2004See DiGiovanni, supra, 580 A.2d at 126 (citing Marcinski v. United States, 479 A.2d 856, 861-62 (D.C.1984), cert. denied, 469 U.S. 1224 , 105 S.Ct. 1216 , 84 L.Ed.2d 357 (1985)).