California Civil Jury Instructions (CACI)

606. Legal Malpractice Causing Criminal Conviction—Actual Innocence

[Name of plaintiff] alleges that [name of defendant] was negligent in defending [him/her] in a criminal case, and as a result, [he/she] was wrongly convicted. To establish this claim, [name of plaintiff] must first prove that [he/she] was actually innocent of the charges for which [he/ she] was convicted.

New April 2009

Directions for Use

Give this instruction after CACI No. 400, Negligence—Essential Factual Elements, and CACI No. 600, Standard of Care, in a legal malpractice action arising from an underlying criminal case.

To prove actual innocence, the plaintiff must first prove legal exoneration. (See Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1201 [108 Cal.Rptr.2d 471, 25 P.3d 670].) Presumably, exoneration will be decided by the court as a matter of law. If there is a question of fact regarding exoneration, this instruction should be modified accordingly.

However, one may be exonerated without actually being innocent of the charges; for example, by the People’s decision not to retry the case on remand because of insufficient evidence. (See Coscia, supra, 25 Cal.4th at p. 1205 [exoneration is prerequisite to proving actual innocence (emphasis added)].) Do not give this instruction if the court determines as a matter of law that the exoneration does establish actual innocence; for example, if later-discovered DNA evidence conclusively proved that the plaintiff could not have committed the offense.

Sources and Authority

  • Code of Civil Procedure section 340.6(a) provides in part: “If the plaintiff is required to establish his or her factual innocence for an underlying criminal charge as an element of his or her claim, the action shall be commenced within two years after the plaintiff achieves postconviction exoneration in the form of a final judicial disposition of the criminal case.”
  • “In a legal malpractice action arising from a civil proceeding, the elements are (1) the duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage resulting from the attorney’s negligence. In a legal malpractice case arising out of a criminal proceeding, California, like most jurisdictions, also requires proof of actual innocence.” (Wilkinson v. Zelen (2008) 167 Cal.App.4th 37, 45 [83 Cal.Rptr.3d 779], internal citations omitted.)
  • “[T]hose policy considerations [underlying the actual-innocence requirement] are as follows. ‘First, we should not permit a guilty defendant to profit from his or her own wrong. [Citation.] Second, to allow guilty defendants to shift their punishment to their former attorneys would undermine the criminal justice system. [Citation.] Third, “a defendant’s own criminal act remains the ultimate source of his predicament irrespective of counsel’s subsequent negligence.” [Citation.] Fourth, a guilty defendant who is convicted or given a longer sentence as a result of counsel’s incompetence can obtain postconviction relief on that basis; in contrast, “a civil matter lost through an attorney’s negligence is lost forever.” [Citation.] Fifth, there are formidable practical problems with criminal malpractice litigation, including the difficulty of quantifying damages and the complexity of the standard of proof, which must combine the preponderance of the evidence standard with the reasonable doubt standard applicable in a criminal trial. [Citation.]’ ” (Khodayari v. Mashburn (2011) 200 Cal.App.4th 1184, 1193 [132 Cal.Rptr.3d 903].)
  • “If the defendant has in fact committed a crime, the remedy of a new trial or other relief is sufficient reparation in light of the countervailing public policies and considering the purpose and function of constitutional guaranties.” Wiley v. County of San Diego (1998) 19 Cal.4th 532, 543 [79 Cal.Rptr.2d 672, 966 P.2d 983].)
  • “The question of actual innocence is inherently factual. While proof of the government’s inability to prove guilt may involve technical defenses and evidentiary rules, proof of actual innocence obliges the malpractice plaintiff ‘to convince the civil jurors of his innocence.’ Thus, the determination of actual innocence is rooted in the goal of reliable factfinding.” (Salisbury v. County of Orange (2005) 131 Cal.App.4th 756, 764–765 [31 Cal.Rptr.3d 831], internal citations omitted.)
  • “[A]n individual convicted of a criminal offense must obtain reversal of his or her conviction, or other exoneration by postconviction relief, in order to establish actual innocence in a criminal malpractice action. . . . [P]ublic policy considerations require that only an innocent person wrongly convicted be deemed to have suffered a legally compensable harm. Unless a person convicted of a criminal offense is successful in obtaining postconviction relief, the policies reviewed in Wiley [supra] preclude recovery in a legal malpractice action.” (Coscia, supra, 25 Cal.4th at p. 1201.)
  • “[A] plaintiff must obtain postconviction relief in the form of a final disposition of the underlying criminal case—for example, by acquittal after retrial, reversal on appeal with directions to dismiss the charges, reversal followed by the People’s refusal to continue the prosecution, or a grant of habeas corpus relief—as a prerequisite to proving actual innocence in a malpractice action against former criminal defense counsel.” (Coscia, supra, 25 Cal.4th at p. 1205.)
  • “[T]he rationale of Wiley and Coscia requires a plaintiff in a criminal legal malpractice case to show actual innocence and postconviction exoneration on any guilty finding for a lesser included offense, even though the plaintiff alleges he received negligent representation only on the greater offense.” (Sangha v. LaBarbera (2006) 146 Cal.App.4th 79, 87 [52 Cal.Rptr.3d 640].)
  • “[Plaintiff] must be exonerated of all transactionally related offenses in order to satisfy the holding in Coscia. Because the judicially noticed facts unequivocally demonstrate that [plaintiff] plead no contest to two offenses transactionally related to the felony charge of battery on a custodial officer in order to settle the criminal action, and she was placed on probation for those offenses, she cannot in good faith plead exoneration.” (Wilkinson, supra, 167 Cal.App.4th at p. 48.)

Secondary Sources

1 Witkin, California Procedure (5th ed. 2008) Attorneys, § 290

Vapnek, et al., California Practice Guide: Professional Responsibility, Ch. 6-G, Professional Competence In Criminal Cases, ¶¶ 6:935–6:944 (The Rutter Group)

3 Levy et al., California Torts, Ch. 32, Liability of Attorneys, § 32.02 (Matthew Bender)

7 California Forms of Pleading and Practice, Ch. 76, Attorney Professional Liability, §§ 76.10, 76.381 (Matthew Bender)

2A California Points and Authorities, Ch. 24A, Attorneys at Law: Malpractice, § 24A.32 (Matthew Bender)