The Champion

May 2007 , Page 48 

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Instructing the Jury to Find Each Element or Every Element of the Charge

By Thomas Lundy

Read more 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 proof.

U.S. Constitution

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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