California Civil Jury Instructions (CACI) (2017)

606. Legal Malpractice Causing Criminal Conviction—Actual Innocence

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606.Legal Malpractice Causing Criminal Conviction—Actual
[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
• Statute of Limitations: Factual Innocence. Code of Civil Procedure section
“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
• “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.
• “[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
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)
607–609. Reserved for Future Use