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Instructing the Jury to Find Each Element or Every Element of the Charge
By Thomas Lundy
Jury Instruction columns.
Some believe that it is good enough to merely instruct jurors that they
must find the defendant guilty beyond a reasonable doubt to convict. On
the other hand, a long, unbroken line of U.S. Supreme Court cases
requires proof of “each element” if not every essential fact1 of the
charge. This difference of opinion has come to a head in California
where the new pattern instruction, CALCRIM, does not include the
original “each element” language, but instead simply says the
prosecution “must prove a defendant guilty beyond a reasonable doubt.”2
This article contends that the “each element” or “every element”
language is necessary to accurately convey the prosecution’s burden of
The federal Constitution requires the prosecution to prove every
element. Any person accused of a crime is presumed innocent unless and
until the jury finds that every essential fact necessary to prove the
charged crime and every element of the crime have been prov
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