CALCRIM No. 3530. Judge’s Comment on the Evidence (Cal. Const., art. VI, § 10; Pen. Code, §§ 1127, 1093(f))

Judicial Council of California Criminal Jury Instructions (2020 edition)

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C. ADMONITIONS
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
should be.
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
BENCH NOTES
Instructional Duty
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.
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(People v. Friend (1958) 50 Cal.2d 570, 579 [327 P.2d 97], overruled on other
grounds in People v. Cook (1983) 33 Cal.3d 400, 413, fn. 13 [189 Cal.Rptr. 159,
658 P.2d 86].) However, Friend was decided in 1958, prior to most of the modern
case law on capital trials. Thus, the committee recommends proceeding with great
caution prior to making any comment on the evidence in the penalty phase of a
capital case.
AUTHORITY
• Judge May Comment on Evidence. Cal. Const., art. VI, § 10; Pen. Code,
§§ 1127, 1093(f).
• Admonition Required. 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].
• Comments Must Not Direct Verdict and Must Be Fair. People v. Proctor
(1992) 4 Cal.4th 499, 542 [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].
• Judge May Comment After Jury Declares Deadlock. People v. Rodriguez
(1986) 42 Cal.3d 730, 766 [230 Cal.Rptr. 667, 726 P.2d 113].
SECONDARY SOURCES
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial,
§§ 741-746.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 82,
Witnesses, § 82.02[2]; Ch. 85, Submission to Jury and Verdict, § 85.02[2][c]
(Matthew Bender).
CALCRIM No. 3530 POST-TRIAL: CONCLUDING
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