3530.Judge’s Comment on the Evidence (Cal. Const., art. VI,
§10; Pen. Code, §§ 1127, 1093(f))
Do not take anything I said or did during the trial as an indication of
what I think about the evidence, the witnesses, or what your verdict
Now, I will comment on the evidence only to help you decide the issues
in this case.
However, it is not my role to tell you what your verdict should be. You
are the sole judges of the evidence and believability of witnesses. It is up
to you and you alone to decide the issues in this case. You may
disregard any or all of my comments about the evidence or give them
whatever weight you believe is appropriate.
New January 2006
If the court comments on the evidence, the court has a sua sponte duty to give this
instruction. (Cal. Const., art. VI, § 10; Pen. Code, §§ 1127, 1093(f); People v.
Proctor (1992) 4 Cal.4th 499, 543 [15 Cal.Rptr.2d 340, 842 P.2d 1100]; People v.
Brock (1967) 66 Cal.2d 645, 651 [58 Cal.Rptr. 321, 426 P.2d 889], overruled on
other grounds in People v. Cook (1983) 33 Cal.3d 400, 413, fn. 13 [189 Cal.Rptr.
159, 658 P.2d 86].)
“[J]udicial comment on the evidence must be accurate, temperate,
nonargumentative, and scrupulously fair. The trial court may not, in the guise of
privileged comment, withdraw material evidence from the jury’s consideration,
distort the record, expressly or impliedly direct a verdict, or otherwise usurp the
jury’s ultimate factﬁnding power.” (People v. Proctor, supra, 4 Cal.4th at p. 542.)
The judge may comment on the evidence before the case is submitted to the jury or
after the jury has announced it is deadlocked. (People v. Rodriguez (1986) 42
Cal.3d 730, 766 [230 Cal.Rptr. 667, 726 P.2d 113] [overruling People v. Cook
(1983) 33 Cal.3d 400 [189 Cal.Rptr. 159, 658 P.2d 86].)
The judge may comment on the evidence at the sanity phase of a trial. (People v.
Scott (1960) 53 Cal.2d 558, 563–565 [2 Cal.Rptr. 274, 348 P.2d 882], overruled in
part by People v. Morse (1964) 60 Cal.2d 631, 638, fn. 2, 648–649 [36 Cal.Rptr.
201, 388 P.2d 33].)
The judge may comment on the evidence at the penalty phase of a capital trial.