The SO Combat Manual

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Jurisdiction

  1. 22 C.J.S. § 167, p. 202
    Jurisdiction to try and punished for a crime cannot be acquired by the major assertion of it, or invoked otherwise than in the mode prescribed by law, and if it is not so acquired or invoked any judgment is a nullity.

  2. Ariz. Const. Art. 6 § 1
    No court may acquire complete jurisdiction to hear and determine any cause until it has obtained through due process, prescribed by law, jurisdiction over both subject matter and the parties, and the power to render the particular judgment that was rendered.

  3. Acker v. CSO Chavira, 188 Ariz. 252, 254, 934 P.2d 816, 818 (App. 1997)
    Quoting State v. Superior Court, 39 Ariz. 242, 2 47-48, 5 P.2d 192, 194 (1931) "a court's inherent authority may be defined as such powers as are necessary to the ordinary and efficient exercise of jurisdiction."

  4. Branch v. Estelle, 631 F.3d 1229, 1233 (5th Cir. 1980)
    Absence of jurisdiction in convicting court is, a basis for federal habeas relief cognizable under the due process clause.

  5. Dassinger v. Oden, (App. Div1 1979) 124 Ariz. 551, 606 P.2d 41
    Generally, lack of jurisdiction over subject matter can be raised at any time and parties cannot waive the requirement that court have subject matter jurisdiction or by consent confer subject matter jurisdiction upon the court.

  6. Dupnick v. McDougall, 136 Ariz. 39 (1983) 664 P.2d 189
    The essential facts are not in dispute. When a defendant is sentenced by the Superior Court to imprisonment and committed to the custody of the Department of Corrections, the Superior Court usually orders the sheriff to take custody of the sentenced to defendant until he can be received by the Department of Corrections. In Maricopa County v. State, supra, the several petitioners sought special action, in the nature of mandamus to compel the director of DOC to accept prisoners. We held pursuant to A.R.S. 31-201.01 the director had unqualified duty to receive and hold all prisoners sentenced to state prison.

  7. Ex Parte Cannon, 546 S.W.2d 266, 267 (Tex. Cr. App. 1976)
    A defect cannot be waived, but can be raised at any point in direct or post-conviction proceedings.

  8. Ex Parte Carlson, 186 N.W. 722, 725, 176 Wis 538 (1922)
    A formal accusation is essential for every trial of a crime. Without it the court acquires no jurisdiction to proceed, even with the consent of the parties, and where the indictment or information is invalid the court is without jurisdiction.

  9. Ex Parte Kirby, 626 S.W.2d 533, 534 (Tex. Cr. App. 1976)
    The predicate conclusion of no jurisdiction derives wholly from state laws governing or controlling the validity of a charging document.

  10. First Nat. Bank of Ariz. v. Carruth, (App. Div2 1977) 116 Ariz. 42, 569 P.2d 1380
    State courts are bound by decision of federal courts in their interpretation of federal statutes.

  11. Greane v. Haws, (N.D. N.Y. 1996) 913 F.Supp. 136 NO 95-CV-1033
    Establishment of jurisdiction should be the first thing a court looks for before it can proceed with the claims. It may be impossible in a 42 USC § 1983 action, however, to determine the jurisdictional issue without essentially determining whether plaintiff has stated a cause of the action. Jurisdiction to adjudicate a section 1983 action arises when a plaintiff demonstrates a violation of his right under constitutional law.

  12. Harding v. Logan, E.D. N.C. 1966, 251 F.Supp. 710
    Indictment or information is not to be reviewed by federal habeas corpus unless it is so fatally defective as to deprive court of jurisdiction.

  13. Hilderbrand v. United States, No. 15623, UNITED STATES COURT OF APPEALS NINTH CIRCUIT, 261 F.2d 354; 1958 US App. LEXIS 3266, November 5, 1958
    Federal courts had no jurisdiction over a crime committed on a Washington Indian Reservation unless it involved an Indian, and as defendant was not an Indian, the district court had no jurisdiction over him in a murder trial.

  14. Honomichl v. State, 333 N.W.2d 797, 798 (S.D. 1983)
    The complaint is the foundation of the jurisdiction of the magistrate or court. If these charging instruments are invalid, there is a lack of subject matter jurisdiction. Without a formal and sufficient indictment or information, a court does not acquire subject matter jurisdiction and thus the accused may not be punished for a crime.

  15. Hooker v. Boles, 346 F.2d 2 85,286 (1965)
    No authority need be cited for the proposition that when a court lacks jurisdiction, any judgment rendered by it is void and unenforceable.

  16. Hughes Aircraft Co. v. Industrial Commission, (App. Div1 1979) 124 Ariz. 551, 602 P.2d 41
    Normally, jurisdiction of subject matter may be raised at any time, including four first time on appeal.

  17. In re Special Grand Jury, No. 81-3527, UNITED STATES COURT OF APPEALS, NINTH CIRCUIT, 674 F.2d 778; 1982 US App. LEXIS 20960; 8 Media L. Rep. 1422, February 8, 1982, Argued , March 17, 1982, Decided , As Amended April 26, 1982
    Denial of motion requesting access to grand jury ministerial records reversed because movants' standing would be based on common law right of access to court records, but would be subject to grand jury secrecy rules.

  18. Jones v. Lopez-Placencia, (App. 1969) 10 Ariz. App. 253, 458 P.2d 120
    Jurisdiction is one of three types. Jurisdiction over the person, jurisdiction over the subject matter, and jurisdiction to render particular judgment in question.

  19. Kelly v. Meyers, 263 PAC. 903, 905 (Ore. 1928)
    If these sections are unconstitutional, the law is void and offense created by them is not a crime and a conviction under them cannot be a legal cause of imprisonment, for no court can acquired jurisdiction to try a person for acts which are made criminal only by an unconstitutional law.

  20. Leon v. Numkena, (App. Div1 1984) 142 Ariz. 307, 689 P.2d 566
    Parties cannot, by consent, give court jurisdiction over subject matter for which court does not otherwise have jurisdiction.

  21. Lopez v. Ariz. Water Co., (App. Div2 1975) 23 Ariz. App. 99, 530 P.2d 1132
    The Court of Appeals is bound by prior decisions of the highest court of Ariz.

  22. Matter of Green, 313 S.E.2d 1993 (N.C. App. 1984)
    The jurisdiction of the court over subject matter has been said to be essential, necessary, indispensable, and an elementary prerequisite to the exercise of judicial power. 21 C.J.S., "Courts" § 18, p. 25. A court cannot proceed with a trial without such jurisdiction existing. It is elementary that the jurisdiction of the court over the subject matter of the action is the most critical aspect of the court's authority to act. Without it the court lacks any power to proceed; therefore, a defense based on this lack of jurisdiction cannot be waived and it may be asserted at any time.

  23. Nick Luguna Jr. v. State of Arizona, 124 Ariz. 179, 602 P.2d 847, 1979 and Ariz. App. LEXIS 620
    Once the defendant has been found guilty of a crime in justice court it may not be held over for prosecution as a felony in Superior Court of a greater offense arising out of the same context.

  24. D.W. Onan & Sons v. Superior Ct. Santa Cruz Co., (1947) 65 Ariz. 255, 179 P.2d 243
    The trial court must have jurisdiction of person and jurisdiction of subject matter of action and want of jurisdiction over either person or subject matter is always open to inquiry.

  25. Pazos v. Pima Co. Superior Ct., (App. 1968) 8 Ariz. App. 560, 448 P.2d 130
    Court exceeds its jurisdiction where it's act amounts to abuse of discretion.

  26. People v. Hardiman, 347 N.W.2d 460, 462, 132 Mich. App. 382 (1984)
    Where an information charges no crime, the court lacks jurisdiction to try the accused.

  27. Petersen v. Jacobson, 2 Ariz. App. 593, 595, 411 P.2d 31, 33 (1966)
    In order to render a valid judgment and sentence in a criminal prosecution, the court must have jurisdiction both of the offense and of the defendant's person... Jurisdiction of the court to try and punish an individual accused of a crime cannot be acquired by the court's mere assertion of jurisdiction, but must be invoked or acquired in the mode prescribed by law. If not so invoked, any judgment is a nullity.

  28. Ralph v. Police Court of El Cerrito, 190 P.2d 632, 634, 84 Cal. App.2d 257 (1948)
    Without a valid complaint any judgment or sentence rendered is void ab initio.

  29. Rodriguez v. State, 441 S.Ct..2d 1129 (Fla. App. 1983)
    Subject matter jurisdiction cannot be conferred by way for our consent, and may be raised at any time.

  30. State v. Chatmon, 671 P.2d 531, 538 (Kan. 1983)
    An indictment, information or complaint in a criminal case is the main means by which a court obtains subject matter jurisdiction and is the jurisdictional instrument on which the accused stands trial.

  31. State v. Jones, (App. Div2 1984) 142 Ariz. 302, 689 P.2d 561
    When jurisdiction of court has been properly invoked by filing of a criminal charge, disposition of the charge becomes judicial responsibility.

  32. State v. Johnson, 318 Ariz. Adv. Rep. 3
    Because the state's motion to amend the information was not based on a technical or formal error in the information, because the amendments changed the nature of the offense charged in count three, and because appellant was not afforded notice of the allegations on both counts one and three and an ample opportunity to defend against them, we conclude that the trial court both erroneously granted the motion to amend the information and denied appellant's motion for a judgment of acquittal. Accordingly, we vacate appellant's convictions and sentences imposed on counts one and three of the information.

  33. State v. Marovich, (1973) 109 Ariz. 45, 504 P.2d 1268
    Where the state appellate court reviews case involving federal constitutional error, state must apply federal standard and declare relief that error was harmless beyond a reasonable doubt if it affirms.

  34. State v. Phelps, (1948) 67 Ariz. 215, 193 P.2d 921
    The first duty of any court is to determine whether it has jurisdiction in the premises, and in some determining it is acting judiciously.

  35. State v. Poli, 161 Ariz. 151, 153, 776 P.2d 1077, 1079 (App. 1989)
    Courts have a sua sponte duty to examine their jurisdiction.

  36. State v. Smith, 66 Ariz. 376, 378, 189 P.2d 206 (Ariz. 1948)
    In Arizona, that mode of law to invoke or bestow jurisdiction upon the state trial court is Rule 2.2, 2.3 and 13.2 of the Arizona Rules of Criminal Procedure and, Article 2 § 30 of the Arizona Constitution, for indictment, information or complaint. Where challenge to the information is based upon an omission in the averment of the essential element of crime, jurisdiction of the subject matter cannot be conferred by consent...and hence objections to the jurisdiction may be made for the first time in the Superior Court.

  37. State v. Superior Ct. of Pima Co., (App. 1968), 7 Ariz. App. 170, 436 P.2d 948
    Although jurisdiction of both offense and person are required in criminal cases, an objection as to jurisdiction of person may be waived. Jurisdiction over the person is a defect that is waived by failure to raise the defense prior to entering of a plea.

  38. Stillwell v. Markham, 10 P.2d 15, 16, 135 Kan. 206 (1932)
    The subject matter jurisdiction of a criminal case is related to the cause of action in general, and more specifically to the alleged crime or offense which creates the action. The subject matter of a criminal offense is the crime itself. Subject matter in its broadest sense means the cause; the object; the thing in dispute.

  39. US v. Apex Distributing Co., Nos. 15701, 15702, UNITED STATES COURT OF APPEALS NINTH CIRCUIT, 270 F.2d 747; 1959 US App. LEXIS 3351, September 21, 1959
    Orders dismissing criminal actions, with prejudice, based upon government's failure to comply with discovery order were not appealable under Criminal Appeals Act because orders were not "sustaining motions in bar" or based on defects in indictment.

  40. US v. Cote, No. 93-30441, UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, 51 F.3d 178; 1995 US App. LEXIS 13508, January 13, 1995, Argued and Submitted, Portland, Oregon , March 16, 1995, Filed , As Amended on Denial of Rehearing and Suggestion for Rehearing En Banc June 2, 1995
    Once mandates reversing convictions issued, the trial court had authority to retry defendants, as long as the double jeopardy clause was not violated; double jeopardy did not bar a retrial where reversals were based on incorrect jury instructions.

  41. US v. Dahlheim, No. 93-30275, UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, 1994 US App. LEXIS 18006, July 13, 1994, ** Submitted, Portland, Oregon** The panel finds this case appropriate for submission without argument pursuant to Fed. R. App. P. 34(a) and 9th Cir. R. 34-4., July 19, 1994, Filed , THIS DISPOSITION IS NOT APPROPRIATE FOR PUBLICATION AND MAY NOT BE CITED TO OR BY THE COURTS OF THIS CIRCUIT EXCEPT AS PROVIDED BY THE 9TH CIR. R. 36-3. , Reported in Table Case Format at: 29 F.3d 635, 1994 US App. LEXIS 26258. Certiorari Denied November 28, 1994, Reported at: 1994 US LEXIS 8529
    A conviction was not void even though the issuance of the indictment by a grand jury of fewer than seven members violated the Oregon Constitution.

  42. US v. Mathews, No. 86-3867, UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, 833 F.2d 161; 1987 US App. LEXIS 15628, September 9, 1987, Submitted * * The panel finds this case appropriate for submission without oral argument pursuant to Ninth Circuit Rule 34-4 and Fed. R. App. P. 34(a)., November 27, 1987, Filed
    Federal subject matter jurisdiction was conferred when certain facts alleged in the indictment were proven by defendant's guilty plea and the plea was made knowingly and intelligently.

  43. US v. Montalvo, No. 90-10078, No. 90-10080, No. 90-10081, No. 90-10082, No. 90-10585, No. 90-10586, UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, 1992 US App. LEXIS 18863, March 13, 1992 *, Submitted, March 13, 1992 **, Argued and Submitted, San Francisco, California * The panel finds US v. Montalvo, Nos. 90-10078, 90-10080 and US v. Matsuzaki, Nos. 90-10081, 90-10082 appropriate for submission without oral argument pursuant to Fed. R. App. P. 34(a) and Ninth Cir. R. 34-4. ** US v. Bueno, No. 90-10585 and US v. Cincola, No. 90-10586., August 4, 1992, Filed , THIS DISPOSITION IS NOT APPROPRIATE FOR PUBLICATION AND MAY NOT BE CITED TO OR BY THE COURTS OF THIS CIRCUIT EXCEPT AS PROVIDED BY THE 9TH CIR. R. 36-3. , Reported as Table Case at 972 F.2d 1346, 1992 US App. LEXIS 28663
    The sentencing judge, who did not preside at the trial, failed to exhibit sufficient familiarity with the case when he entered the sentences.

  44. US v. Price, No. 02-10196 , UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, 314 F.3d 417; 2002 US App. LEXIS 26745; 56 ERC (BNA) 1028; 2002 Cal. Daily Op. Service 12404; 2002 Daily Journal DAR 14622; 33 ELR 20146, December 6, 2002, Argued and Submitted, San Francisco, California , December 26, 2002, Filed
    The Double Jeopardy Clause did not bar a defendant's federal criminal prosecution for violating the Clean Air Act, even though a county agency previously assessed against defendant a civil penalty for the same conduct.

  45. US v. Roberts, Nos. 78-2738, 78-2806, UNITED STATES COURT OF APPEALS, NINTH CIRCUIT, 618 F.2d 530; 1980 US App. LEXIS 17817, March 15, 1979, Argued , May 7, 1980, Decided
    A prosecutor's suggestion that a witness testifying under a plea agreement was credible because a detective was monitoring his testimony constituted reversible error because the government could not vouch for the witness's credibility.

  46. US v. Ruiz, No. 00-50048, UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, 241 F.3d 1157; 2001 US App. LEXIS 3357; 2001 Cal. Daily Op. Service 1793; 2001 Daily Journal DAR 2293, October 12, 2000, Argued and Submitted, Pasadena, California , March 5, 2001, Filed , Certiorari Granted January 7, 2002, Reported at: 2002 US LEXIS 7
    Defendant's right to receive undisclosed Brady material could not be waived through a plea agreement; prosecutor could not withhold recommendation for downward departure based on such a waiver.

  47. US v. Siviglia, 686 Fed.2d 832, 835 (1981)
    A court lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking.

  48. US v. Travis, No. 83-1238, UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, 735 F.2d 1129; 1984 US App. LEXIS 21349, April 11, 1984, Argued and Submitted , June 19, 1984, Decided
    Even though defendant implicitly waived prosecution by indictment, providing the district court with jurisdiction to sentence, order was vacated and remanded where government breached its promise under the plea agreement to stand mute at sentencing.

  49. US v. Walker, No. 76-1193, UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, 575 F.2d 209; 1978 US App. LEXIS 13066, January 13, 1978
    Conviction was reversed where district court's supplemental instruction constituted an amendment to the indictment, and was confusing and subject to an interpretation that was prejudicial to defendant.

  50. US v. Wiora, C. A. No. 97-50485, UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, 1999 US App. LEXIS 4041, November 4, 1998, Argued and Submitted, Pasadena, California , March 9, 1999, Filed , RULES OF THE NINTH CIRCUIT COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT. , Reported in Table Case Format at: 1999 US App. LEXIS 11658
    Enhancement of appellant's sentence for failing to release his kidnapping victim was inappropriate where there was no evidentiary hearing to determine the credibility of witnesses and disputed facts regarding access to vehicles.

  51. White v. Davidson, (1935) 46 Ariz. 1, 46 P.2d 1073
    Objection to jurisdiction of court can raise only question whether court had jurisdiction of subject matter and of person.

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Jury

  1. 28 USC. §1865 (b) (2000)
    A juror must be US citizen at least 18 years old, resident for at least one year in judicial district in which trial is held, failed to read, write, understand and speak English, mentally and physically capable of performing jury service, and free from criminal conviction or pending charges punishable by more than one year in prison.

  2. A.R.Cr.P. Rule 22.3 Further review of evidence and additional instructions.
    After the jurors have retired to consider their verdict, it they desire to have any testimony repeated, or if they or any party request additional instructions, the court may recall them to the courtroom and order the testimony read or give appropriate additional instructions. The court may also order other testimony read or give other instructions, so as not to give undue prominence to the particular testimony or instructions requested. Such testimony may be read or other instructions given only after notice to the parties.

  3. Allen v. U.S, 164 US 482, 41 L.Ed 528, 17 S.Ct. 154 (1896)
    US v. Arpan, 861 F.2d 1073 (8th Cir. 1988)
    US v. Robinson, 953 F.2d 433 (8th Cir. 1992)
    1. Supplemental jury instructions of the "Dynamite" variety are grounds for reversible error due to their strong coercive effect on the jury.
    2. When the judge told the jury they had to bring in a decision he effectively denied the defendants right to a hung jury.

  4. Batson v. Kentucky, 476 US 79. 90 L.Ed.2d 69, 106 S.Ct. 1712 (1986)
    Trevino v. Texas, 503 US 118 L.Ed.2d 193, 112 S.Ct. (1992)
    US v. Lorenzo, 995 F.2d 1448 (9th Cir. 1993)
    1. "Purposeful racial discrimination is selection of the venire violates a defendants right of equal protection. " (see Batson)
    2. Accused's objection under equal protection clause to state*s race based use of peremptory challenges prior to the Supreme Courts decision in Batson v. Kentucky held preserved for review by the Supreme Court. (see Trevino)

  5. Bruce v. State, 126 Ariz. 271,614 P.2d 813
    The Superior Court, Pima County, Cause No. 181680, Richard N. Roylston, J., granted special action relief after City Court of the city of Tucson denied request for jury trial, and State appealed. The Court of Appeals, 126 Ariz. 313, 614 P.2d 855, affirmed, and State's petition for review was granted. The Supreme Court, Holohan, V C. J., held that: (1) City Court of the city of Tucson did not have subject-matter jurisdiction to try defendant on charge of aggravated assault on police officer even though charge was designated a misdemeanor by its filing in city court, and (2) since aggravated assault on police officer and assault on second victim were equivalent of simple battery at common law, which was not crime requiring jury trial, and charges did not constitute crimes involving moral turpitude which would require jury trial, defendant had no constitutional right to trial by jury on assault charges, even though potential sentence on all charges could exceed six months if sentences were ordered served consecutively. Opinion of Court of Appeals vacated; remanded with directions.

  6. Burton v. Johnson, 948 F.2d 1150 (10th Cir. 1991)
    1. Doubts regarding bias must be resolved against juror.
    2. A jury's dishonesty, of itself, was evidence of jurors bias.

  7. Dyers v. Calderon, 151 F.3d 970 (Ninth Circuit 1998)
    The presence of a biased juror cannot be harmless, the error requires a new trial without a showing of actual prejudice because it introduces any structural defects not subject to harmless error analysis.

  8. Estelle v. Williams, 425 US 501, 503, 96 S.Ct. 1621, 1692, 48 L.Ed.2d 126 (1976)
    Arizona law is clear that for a juror to see the accused in jail garb is inherently prejudicial.

  9. Fields v. Brown, 431 F.3d 1186 (9th Cir. 2005)
    The presence of a biased juror introduces a structural defect not subject to harmless error analysis.

  10. Fields v. Woodford, 309 F.3d 1095 (9th Cir. 2002)
    1. Presence of a biased juror cannot be harmless, error requires new trial without showing of actual prejudice.
    2. Either actual or implied juror bias may support challenge to cause

  11. Floyd v. Garrison, 996 F.2d 947 (8th Cir. 1993)
    Fifth Amendment guarantee of equal protection requires that procedures used to select jury pools be racially nondiscriminatory.

  12. Ho v. Carey, 332 F.3d 587 (9th CIR 2003)
    When jury instruction omits a necessary element of the crime, constitutional error has occurred.

  13. Holland v. Illinois, 493 US 474, 107 L.Ed.2d 905, 110 S.Ct. 803 (1990)
    Prosecutors exercise of preemptory challenges to exclude all black potential jurors from white defendants petit jury held not to violate defendants Sixth Amendment right to trial by impartial jury.

  14. Hughes v. US, 258 F.3d 453, 460 (6th Cir. 2001)
    The trial granted based on ineffective assistance of counsel claim because counsel failed to strike juror who admitted bias.

  15. Hunter v. Clark, 934 F.2d 856 (7th Cir. 1991)
    Fifth Amendment requires that criminal trial judge give "no adverse inference" jury instruction when requested by defendant to do so.

  16. Irwin v. Dowd, 366 US 717 (1961)
    Shephard v. Maxwell, 384 US 333 (1966)
    Exposure of the jurors to knowledge about the defendant's prior criminal record and activities is not alone sufficient to establish a presumption of reversible prejudice, but on voir dire jurors should be questioned about their ability to judge impartiality.

  17. James v. Kentucky, 466 US 341, 80 L.Ed.2d 346, 104 S.Ct. 1830 (1984)
    The judge failed/refused to give requested instructions. The Supreme Court reversed and held that state statutes did not take precedent over constitutional law and that the judge had to give the requested instruction.

  18. Jeffries v. Blodgett, 974 F.2d 1179 (9th Cir. 1992)
    Fifth Amendment prohibits prosecutor from commenting to jury on defendants failure to take stand in his own defense.

  19. Lawson v. Borg, 60 F.3d 608 (9th Cir. 1995)
    Jury exposure to facts not in evidence deprives defendant of Sixth Amendment rights to confrontation, cross - examination, and assistance of counsel.

  20. Lord v. Wood, No. 97-99025, No. 97-99026 , UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, 184 F.3d 1083; 1999 US App. LEXIS 15709; 99 Daily Journal DAR 7167, November 19, 1998, Argued and Submitted, San Francisco, California , July 14, 1999, Filed , Certiorari Denied February 28, 2000, Reported at: 2000 US LEXIS 1730. Writ of certiorari denied, Motion granted by Lambert v. Lord, 528 US 1198, 120 S. Ct. 1262, 146 L. Ed. 2d 118, 2000 US LEXIS 1730 (2000)... of his trial REVERSED. State's appeal dismissed
    A competent attorney would not have failed to put three witnesses on the stand who, if believed, would have cleared petitioner of murder; counsel's failure to do so constituted deficient performance that was prejudicial to petitioner's defense.

  21. Mach v. Stewart, 137 F.3d 630 (9th Cir. 1997)
    During voir dire, statement of one prospective juror who is later dismissed were found to have the potential of tilting entire panel or conduct, further voir dire to ascertain impact of jurors statements was reversible error.

  22. Marshall v. US, 360 US 310 (1959)
    Chandler v. Florida, 4 4 90 US 560, 575, 581 (1981)
    Smith v. Phillips, 455 US 209, 215-18 (1982)
    Patton v. Yount, 467 US 1025 (1984)
    Essentially the defendant must make a showing of prejudice which the court then may inquire into.

  23. Menendez v. Terhune, 422 F.3d 612 (6th Cir. 2006)
    Jury instruction that fails accurately to reflect law is reversible error.

  24. Morgan v. Illinois, 504 US 119 L.Ed.2d 492, 112 S.Ct. (1992)
    Illinois trial court held to violate due process by refusing to ask potential jurors on voir dire, in capital case, if they would automatically impose death penalty if the defendant was convicted.

  25. Murphy v. Florida, 421 US 794 (1975)
    The court indicated that under the same circumstances in a federal trial it would have overturned the conviction pursuant to its supervisory power Id. at 797 - 98.

  26. Nethery v. Collins, 993 F.2d 1154 (5th Cir. 1993)
    Burton v. Johnson, 948 F.2d 1150 (10th Cir. 1991)
    1. Doubts regarding bias must be resolved against juror.
    2. A jurors dishonesty, of itself, was evidence of juror's bias.
    3. Racially based exclusion of even a single juror violates equal protection clause.

  27. Perkins v. Komarnyckyj, 172 Ariz. 115, 118, 834 P.2d 1260, 1263 (1992)
    We were unable to conclude that Benenati suffered any prejudice from it. See also: State v. McDaniel

  28. Powers v. Ohio, 499 US 400, 113 L.Ed.2d 411, 111 S.Ct. 1364 (1991)
    White criminal defendant held to have standing to raise equal protection objection to prosecutors allegedly race­based exercise of peremptory challenges to exclude black perspective jurors.

  29. Rogers v. State, (1974) Ark. 144, 515 SW2d 79, cert. denied, 421 US 930, 44 L.Ed.2d 87, 95 S.Ct. 1656
    14th amendment requires that counsel be permitted to in terra gate prospective jurors about racial bias.

  30. Romberg v. Nichols, 953 F.2d 1152 (9th Cir. 1992)
    When jury compromises its verdict, verdict shall not stand.

  31. Rushen v. Spain, 464 U. S. 114, 119 (1983)
    Contact between judge and jury raises special considerations. A judge has discretion in replying to request or inquiries from the jury, but should consult counsel before responding and should do so only in open court. Failure to follow up this rule is subject to harmless error review.

  32. Sandstrom v. Montana, 442 US 510, 61 L.Ed.2d 39, 99 S.Ct. 2450 (1979)
    Francis v. Franklin, 471 US 307, 85 L.Ed.2d 344, 105 S.Ct. 1965 (1985)
    Trial courts instructions cannot impermissibly shift the burden of proof to the defendant.

  33. Sandstrom v. Montana, 442 US 510, 524 (1979)
    Jury instruction shifting burden of proof on mental state unconstitutional. Sandstrom v. Montana, Id at 515. The Sandstrom court held that even though some juror might have considered the challenge instruction to be a permissive presumption, the fact that won the reasonable juror could have interpreted as shifting to Burton required the court to treated as a mandatory presumption. Id at 519.

  34. Shaw v. Hahn, 56 F.3d 1128 (9th Cir. 1995)
    A person has equal protection right not to be excluded from jury solely on basis of race.

  35. Smith v. Phillips, 455 US 209 (1982)
    During trial one of the jurors had been actively seeking employment in the District Attorney's Office.

  36. Spain v. Rushen, 883 F.2d 712 (9th Cir. 1989)
    Defendant has constitutional right to appear before jury free of shackles.

  37. State v. Anderson, No. 1 CA-CR 4537, Court of Appeals of Arizona, Division One, Department B, 128 Ariz. 91; 623 P.2d 1247; 1980 Ariz. App. LEXIS 699, December 30, 1980 , Rehearing Denied February 4, 1981. Review Denied February 18, 1981. Judgment and sentence reversed, and case remanded
    Failure to give a requested instruction on the definition of "private parts" to limit the jury's inquiry to the proper evidence was reversible error where the jury was allowed to speculate as to what constituted private parts.

  38. State v. Benati, 381 Ariz. Adv. Rep. 3 (2002)
    Benati contends that trial court erred in responding to jurors question during deliberation, arguing the communication occurred outside his presence and was without his knowledge or consent. The general rule in Arizona is that reversible error occurs when a trial judge communicates with jurors after they have retired to deliberate, unless defendant and counsel have been notified and given an opportunity to be present.

  39. State v. Bingham, 176 Ariz. 146, 147, 859F.2d 769, 770 (App. 1993)
    We have found it necessary to strike jurors who believed police officers to be more credible than others. Reversible error results from failure to strike a juror for bias even when preemptory challenge is later used to strike juror.

  40. State v. Davis, 117 Ariz. 5, 570 P.2d 776 (App.1977)
    Trial court's ex-parte communication to jurors not prejudicial because it merely restated jury instructions.

  41. State v. Fletcher, 149 Ariz. 187, 717 P.2d 866 (1986)
    The test of whether erroneous jury communications required reversal is whether it can be said beyond a reasonable doubt that the defendant was not prejudiced by the communication.

  42. State v. Holder, 155 Ariz. 83, 745 P.2d 141
    In his appeal to the court of appeals, defendant contended that he was entitled to raise Batson for the first time on appeal, that Batson applied to his case, and that the record established a prima facie showing of the discriminatory exercise of premptories. The court of appeals agreed with the defendant and remanded to the trial court for a hearing to determine whether the prosecution could now meet its burden of providing a racially neutral explanation for the exercise of its peremptory challenges.

  43. State v. Huerta, 170 Ariz. 584, 585, 826 P.2d 1210, 1211 (App. 1991) rev. other grnds.
    We have found it necessary to strike jurors who believed that the charge alone showed the defendants guilt.

  44. State v. Jackson, 144 Ariz. 53, 695 P.2d 742 (1985)
    Certain basic instructions including a reasonable doubt instruction, must be given by the court following closing arguments even though the jury had been previously instructed prior to the receipt of evidence.

  45. State v. Koch, 138 Ariz. 99, 673 P.2d 297 (1983)
    A trial judge may not communicate with a jury unless the defendant and counsel have been notified and given the opportunity to be present. See also: State v. Shumway, 137 Ariz. 585, 672 P.2d 929 (1983)

  46. State v. Korzep, 165 Ariz. 490, 799 P.2d 831
    Defendant was convicted in the Superior Court, Yuma County, No. Cr-14519, Douglas W. Keddie, J., of manslaughter and she appealed. The Court of Appeals affirmed, 164 Ariz. 175, 791 P.2d 1058, and review was granted. The Supreme Court, Gordon, C.J., held that defendant was entitled to instruction that a person is justified in using deadly physical force against another to the extent that the person reasonably believes that the use of deadly physical force is necessary to prevent the other person's commission of aggravated assault, even when the other person is a member of the defendant's household. Vacated in part and remanded.

  47. State v. Mata, 125 Ariz. 233, 240-41, 609 P.2d 48, 55-56 (1980)
    However if it may be said beyond reasonable doubt, that there was no prejudice to the defendant, a communication between judge and jury outside the presence of the defendant and counsel is harmless error. Id at 241, 609 P.2d at 56.

  48. State v. McDaniel, 136 Ariz. 188, 665 P.2d 70 (1983)
    When no notification was given to defendant prior to responding to the jury’s questions, such communications between judge and jury violated this rule and was error.

  49. State v. McDaniel, 136 Ariz. 188, 665 P.2d 70 (1983), cert. denied, 499 U. S. 952, 111 S.Ct. 1426 113 L.Ed.2d 478 (1991)
    Where no notification was given the defendant prior to responding to the jury's questions, such communications between judge and jury violated this rule and was error. Where no notification is given to defendant prior to responding to the jury's questions, such communications between judge and jury violated A.R.Cr.P. 22.3 and was error.

  50. State v. Maldonado, 1 CA-CR 02-0519 , COURT OF APPEALS OF ARIZONA, DIVISION ONE, DEPARTMENT B, 206 Ariz. 339; 78 P.3d 1060; 2003 Ariz. App. LEXIS 180; 412 Ariz. Adv. Rep. 6, November 6, 2003, Filed , Motion granted by State v. Maldonado, 2004 Ariz. LEXIS 28 (Ariz., Mar. 16, 2004). Convictions reversed; case remanded
    Defendant was entitled to new trial after she was convicted of being accomplice to sexual conduct with minor and child abuse because court's failure to impanel lawful number of jurors was fundamental error. Defendant was entitled to 12-person jury.

  51. State v. Rich, 184 Ariz. 179, 907 P.2d 1382 (1995)
    Counsel is present for four questions but was not for the fifth. In answering the jury's last question as it did, "all the evidence has been presented to you" the court neither explicitly nor implicitly commented on the evidence. See also: State v. Robin, 112 Ariz. 467, 543P.2d 779 (1975)

  52. State v. Rodriguez, 131 Ariz. 400, 644 P.2d 888, 890 (App. 1981)
    When jurors remarks indicate misgivings about impartiality, and juror should be struck for cause.

  53. State v. Rojas, 1 CA-CR 91-1800, COURT OF APPEALS OF ARIZONA, DIVISION ONE, DEPARTMENT C, 177 Ariz. 454; 868 P.2d 1037; 1993 Ariz. App. LEXIS 279; 154 Ariz. Adv. Rep. 66, December 23, 1993, Filed REVERSED AND REMANDED
    A trial court abused its discretion in denying defendant's motion for mistrial on the ground that, before deliberations began, a juror asked when the trial court would sentence and sent a sympathy note and money to the child molestation victims.

  54. State v. Sanchez, No. 5702-PR, Supreme Court of Arizona, 135 Ariz. 123; 659 P.2d 1268; 1983 Ariz. LEXIS 161, January 28, 1983 , Rehearing Denied March 8, 1983. ... of Appeals vacated; reversed and remanded
    Defendant was entitled to a new trial when a trial court failed to submit a form of verdict on insanity and a jury was not told it must return a verdict of not guilty by reason of insanity if it found defendant insane.

  55. State v. Shumway, 137 Ariz. 585, 672 P.2d 929 (1983)
    A trial judge may not communicate with a deliberating jury unless the defendant and counsel have been notified.

  56. State v. Strayar, 119 Ariz. 607, 583 P.2d 263 (App. 1978)
    The communication essentially consisted of a refusal to answer the jury's question and a restatement of the court's instruction that the jury was charged with determining the facts. Although the trial court's action gave the parties no opportunity to object or voice their concerns regarding the judge’s procedure until it [was] too late.

  57. State v. Thompson, 68 Ariz. 368, 389 - 92, 206 P.2d 1037, 1039 - 40 (1949)
    Challenging a juror for bias is a substantial right.

  58. State v. Tittle, 147 Ariz 339
    The court found that a self-defense instruction constituted fundamental error and impermissibly shifted the burden of proof by requiring the jury to decide defendant's conduct was justified prior to acquitting him. The court reversed and found that the failure of the trial court to inform the jury of each side's burden of proof was fundamental error, because defendant testified that he acted in self-defense. The court found that an out-of-state robbery conviction could be used to establish an aggravating circumstance under Ariz. Rev. Stat. § 13-703(F)(1), because the offense was punishable by life imprisonment or death under Arizona law as it existed at the time of the robbery conviction. Further, the court held that as a matter of law, a robbery conviction constituted an aggravating circumstance within the meaning of § 13-703(F)(2); therefore, the robbery conviction could properly constitute two aggravating circumstances, § 13-703(F)(1), (2), on remand. The court found that the imposition of the death sentence and/or a finding of a new aggravating circumstance on remand would not offend double jeopardy, because he was originally given the death penalty. The court reversed the decision of the trial court and remanded for a new trial not inconsistent with its opinion.

  59. Sullivan v. Louisiana, (1993, US) 124 L.Ed.2d 182, 113 S.Ct. 2078, 93 CDOS 3934, 93 Daily Journal DAR 6962, 7 FLW Fed S. 341
    Constitutionally deficient jury instruction reasonable doubt, for purpose of prosecutors burden of proving guilt beyond reasonable doubt, is not amendable to harmless error analysis and always invalidates conviction.

  60. Sullivan v. Louisiana, 508 US, 124 L.Ed.2d 182, 113 S.Ct. (1993)
    US v. Taylor, 997 F.2d 1551 (DC Cir. 1993)
    Constitutionally deficient criminal jury instruction as to definition of reasonable doubt. For purposes of proving guilt beyond reasonable doubt, held not amenable to harmless error analysis on appeal and would always invalidate a conviction.

  61. Test v. US, 420 US 29, 42 L.E.2d 786, 95 S.Ct. 749 (1975)
    Regarding inspection of the jury "Wheel" and "List."

  62. US v. Adcox, 19 F.3d 290 (7th CIR 1994)
    When trial court answers jury questions it has a duty to answer with concrete accuracy.

  63. US v. Ajiboye, 961 F.2d 892 (9th Cir. 1992)
    If trial judge inquires into numerical division of deadlocked jury and then gives ALLEN charge, charge is per se coercive and requires reversal.

  64. US v. Aragon, 983 F.2d 1306 (4th Cir. 1993)
    When jury can choose between conflicting evidence that decision should stand.

  65. US v. Barnett, 968 F.2d 1189 (11th Cir. 1992)
    Federal juries should not be concerned with the consequences of their verdict on the defendant.

  66. US v. Berroa, 46 F.3d 1195 (D.C. Cir. 1995)
    Giving ALLEN charge which contained additional statements not found in ABA approved instruction, and which omitted other required statements, was presumptively coercive and was reversible error.

  67. US v. Blakey, 14 F.3d 1557 (11th Cir. 1994)
    Prosecutor may not make suggestions, insinuations, and assertions calculated to mislead jury.

  68. US v. Blood, 435 F.3d 612 (6th Cir. 2006)
    Jury instruction that fails accurately to reflect law is reversible error.

  69. US v. Boonphakdee, 40 F.3d 538 (2nd Cir. 1994)
    Criminal defendant has right to jury charge which reflects defense theory.

  70. US v. Brooks, 145 F.3d 446
    Motion in limine to preclude government from introducing certain evidence in criminal trial was granted by the United States District Court for the District of Massachusetts, Edward F. Harrington, J., and the government appealed. The Court of Appeals, Selya, Circuit Judge, held that: (1) government had right to interlocutory appeal of the order, which extirpated evidence that the government considered to be substantial proof of specified elements of the charged offenses, even though ruling was on motion in limine rather than a suppression order; (2) appeal was timely though jury was sworn before Court of Appeals stayed proceedings; (3) district court abused its discretion in granting motion; (4) appeal divested the district court of its authority to swear a jury and start the trial, and it actions in doing so were nullities; and (5) district judge would be removed from further participation in the case and case would be assigned, on remand, to a different district judge. Vacated and remanded with directions.

  71. US v. Brumel - Alvarez, 991 F.2d 1452 (9th Cir. 1992)
    Jury, not prosecutor, has the duty to sift through inconsistencies of testimony to weigh credibility of witnesses and to resolve any ambiguities in evidence.

  72. US v. Carter, 965 F.2d 804 (10th CIR 1992)
    1. Questions from jury must be answered in open court and only after providing counsel an opportunity to be heard..
    2. Government bears burden of proof to show courts exparte communication with jury was harmless error.

  73. US v. Carter, 973 F.2d 1509 (10th Cir. 1992)
    1. Question from jury must be answered in open court and only after providing counsel an opportunity to be heard.
    2. Government bears burden to show trial court's ex parte communication with jury was harmless error.

  74. US v. Carter, 910 F.2d 1524 (7th Cir. 1990)
    Defendant in criminal trail is entitled to have jury consider any theory of defense that is supported by law and that has some foundation in evidence.

  75. US v. Cartwright, 6 F.3d 294 (5th Cir. 1993)
    Jury charge must be both legally accurate and factually supportable; court may not instruct jury on charge that is not supported by evidence.

  76. US v. Cavanaugh, 948 F.2d 405 (8th Cir. 1991)
    US v. Sotelo - Rivera, 906 F.2d 1324 (9th Cir. 1990)
    If evidence would permit jury to find defendant guilty of a lesser included offense, defendant is entitled to instruction on that offense.

  77. US v. Coppins, 953 F.2d 86 (4th Cir. 1991)
    For all offenses for which imprisonment for more than 6 months is authorized, the right of jury trial exists, but there is no flat rule that there is no right to a jury trial when the possible sentence is less than six months.

  78. US v. Dalaney, 732 F.2d 639 (8th Cir. 1984)
    If a single juror is improperly influenced verdict is an unfair as if all were.

  79. US v. Davis, 965 F.2d 804 (10th Cir. 1992)
    Failure to instruct jury as to required element of offense charged would mandate reversal.

  80. US v. Duhart, No. 73-2570, UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, 496 F.2d 941; 1974 US App. LEXIS 8750, May 8, 1974
    Erroneous jury instruction resulted in the reversal of a conviction for assault with intent to commit rape because the jury could have convicted defendant of the offense despite his lack of intent to commit rape.

  81. US v. Eagle Elk, 820 F.2d 959 (8th Cir. 1987)
    Criminal defendant in federal court has non - waivable right to unanimous jury verdict.

  82. US v. Frazin, 780 F.2d 1461 (9th Cir. 1986)
    When jury deadlocks, defendant should be afforded opportunity to request that jury be reinstructed on burden of proof or on its members duty to decide according to their own conscience.

  83. US v. Frega, 179 F.3d 793 (9th Cir. 1999)
    When a jury makes explicit its difficulties a trial judge should clear them away with concrete accuracy.

  84. US v. Gallerani, 68 F.3d 611 (2nd Cir. 1995)
    Due process requires the trial court to charge the jury on all elements of the crimes alleged in the indictment. A court's failure to instruct jury on some of the elements of a charged crime has the effect of relieving the prosecution of part of its burden of proof in obtaining conviction. The allegedly erroneous instruction must be considered in the context of the charge as a whole but the complete omission of an element of offense violates due process. Permitting the jury to find a defendant guilty of multiple crimes it found that any one crime had been committed by his co-conspirators, was erroneous.

  85. US v. Galloway, 316 F.3d 624 (6th Cir. 2003)
    A prosecutor cannot express his personal opinion before jury.

  86. US v. Gaudin, 515 US 506, 132 L.Ed.2d 444, 115 S.Ct. 2310 (1995)
    The Constitution gives any criminal defendant the right to have a jury determines, beyond a reasonable doubt, is guilty of every element of crime with which he is charged.

  87. US v. Gaudin, 997 F.2d 1267 (9th Cir. 1993)
    When trial judge deprives jury of its fact­finding duty, this violates the criminal defendant's due process rights.

  88. US v. Gee, 266 F.3d 8 5 (7th Cir. 2000)
    If a jury rationally could find in the defendants favor on some material issue, then the jury must be instructed on that subject.
  89. US v. Gomez, 67 F.3d 1515 (CA 10 Utah 1995)
    By answering jury’s questions in open court without defendant or his counsel present, district court violated defendant’s 5th amendment right to be present at any stage of criminal proceedings, but error was harmless where answers given were not factually inaccurate and no inferences from testimony were required to provide them. A Fifth Amendment violation occurred by answering jury's question in open court without defendant or his counsel present, if district court violated defendants constitutional right to be present at any stage of criminal proceedings, but error was harmless where answer is given that were not factually inaccurate and no inferences from testimony were required to provide them.

  90. US v. Gray, 105 F.3d 956 (5th Cir. 1999)
    If District judge so favors prosecution during trial that judge appears to predispose jury toward finding of guilt and appears to take over prosecutorial role, due process violation occurs.

  91. US v. Haddon, 927 F.2d 942, 948 - 49 (7th Cir. 1991)
    Trial court prediction of length of trial during voir dire was harmless error because subsequent instruction cured any inference of guilt.

  92. US v. Hall, 116 F.3d 1253 (8th Cir. 1997)
    If exposed to extrinsic evidence improperly influenced only one juror, verdict is as unfair as if all jurors were.

  93. US v. Hall, 989 F.2d 711 (4th Cir. 1993)
    A defendant is constitutionally entitled to mentally competent jurors and to enforce this right, jury's verdict must be set aside if defendant presents clear evidence of juror's incompetence to understand issues and to deliberate at time of his services.

  94. US v. Hove, 52 F.3d 233 (9th CIR 1992)
    Omission of essential element of offense from jury instruction is plain error and cannot be harmless.

  95. US v. Hunt, 794 F.2d 1095 (5th Cir. 1986)
    Proof beyond a reasonable doubt is proof that leaves one firmly convinced of defendant's guilt.

  96. US v. Lampkins, 47 F.3d 175 (7th Cir. 1995)
    Discrimination in jury selection on basis of gender violates equal protection.

  97. US v. Manning, 23 F.3d 570 (1st Cir. 1994)
    Arguments urging jury to act in any capacity other than an impartial arbiter of the facts in the case before it are improper.

  98. US v. McFarland, 34 F.3d 233 (9th Cir. 1995)
    Omission is an essential element of offense from jury instruction is plain error in cannot be harmless. And 235 - fails to instruct jury that conviction for offense required the defendant in knew conduct was unlawful.

  99. US v. McFarland, 34 F.3d 1508 (9th Cir. 1994)
    District court may not substitute alternate jurors unless defendant has given express waiver of his rights.

  100. US v. Nelson, 27 F.3d 199 (6th Cir. 1994)
    When trial judge omits from jury instructions element of offense necessary to find defendant guilty, omission is plain error.

  101. US v. O'Brien, 14 F.3d 703 (1st Cir. 1994)
    Jury can freely choose to credit particular testimony while discounting other testimony that arguably points in a different direction.

  102. US v. Ojebode, 957 f.2d 1218 (5th CIR 1992)
    Jury’s verdict cannot stand if the instructions provided to the jury do not require it to find each element of the crime under the proper standard of proof.

  103. US v. Pace, 10 F.3d 1106 (5th Cir. 1993)
    Any doubt about credibility of witnesses or about inferences that can be drawn from evidence should be resolved in favor of jury verdict.

  104. US v. Perz - Tosta, 36 F.3d 1552 (11th Cir. 1994)
    Reasonable inferences from circumstantial evidence, rather than mere speculation, must support jury's verdict.

  105. US v. Peterson, 236 F.3d 848 (7th Cir. 2001)
    1. To render a guilty verdict, jury must hear sufficient evidence to avoid resorting to excessively strained inferences or guesswork.
    2. When a verdict may have rested on any of several grounds, one of which lies improper, the conviction cannot be upheld.

  106. US v. Porter, 764 F.2d 1 (1st Cir. 1985)
    Decision to allow jury to take notes and use them during deliberations is matter within discretion of trial court, and absent abuse of discretion, action of trial court will not be disturbed.

  107. US v. Pruitt, (1985 CA 11 Ala) 763 F.2d 1257, cert. denied, (1986) 474 US 1084, 88 L.ed.2d 896, 106 S.Ct. 856
    Jury may be instructed to consider uncharged offenses in order to determine whether charged offenses are related in continuous pattern of criminal activity.

  108. US v. Randazzd, 80 F.3d 623 (1st CIR 1996)
    Failure to submit entire element of crime to jury, when request is made, is treated as structural and is reversible error without regard to harm.

  109. US v. Riffe, 28 F.3d 565 (6th Cir. 1994)
    Refusal to give accurate jury instruction is reversible if it impairs defendant's theory of the case and is not covered adequately by instructions given.

  110. US v. Rigsby, 45 F.3d 120 (6th Cir. 1995)
    Requirement that defendant receive fair trial by panel of impartial, "indifferent" jurors is basic requirement of due process.

  111. US v. Robertson, 45 F.3d 1423 (10th Cir. 1995)
    1. Criminal defendant has Sixth Amendment right to jury pool comprised of fair cross­section of the community.
    2. When the judge told the jury they had to bring in a decision he effectively denied the defendants right to a hung jury.

  112. US v. Sarkisian, 197 F.3d 996 (9th Cir. 1999)
    Defendants sixth amendment rights are violated even if only one juror was unduly biased or improperly influenced.

  113. US v. Shears, 762 F.2d 397 (4th Cir. 1985)
    US v. Delvecchio, 707 F.2d 1214 (11th Cir. 1983)
    Jeopardy attaches when jury is impaneled and sworn.

  114. US v. Schweihs, 971 F.2d 1302 (7th Cir. 1992)
    US v. Washington, 819 F.2d 221 (9th Cir. 1987)
    1. District court must give instruction regarding any legitimate theory of defense that is supported by evidence, and failure to do so is reversible error.
    2. Defendant is entitled to instruction on any defense recognized in law and supported by sufficient evidence to allow reasonable jury to find in defendant's favor.

  115. US v. Strauss, 999 F.2d 692 (2nd Cir. 1993)
    Jury is exclusively responsible for determining witness credibility.

  116. US v. Thomas, 895 F.2d 1198 (8th Cir. 1990)
    1. Court need not instruct jury that defendant will receive mandatory sentence if he or she is found guilty.
    2. Jury was not to consider punishment of defendant or loss of parole under sentencing guidelines.

  117. US v. Trega, 179 F.3d 793 (9th CIR 1995)
    When jury makes explicit its difficulties a trial judge should clear them away with concrete accuracy.

  118. US v. Waldon, 206 F.3d 597, 607 (6th Cir. 2000)
    No abuse of discretion when defendants inadvertently observed in shackles while being transported by Marshall's because court instructed jury that it was not evidence of guilt.

  119. US v. Winfield, 997 F.2d 1076 (4th Cir. 1993)
    Convictions based on theories not submitted to the jury cannot stand.

  120. US v. Vastola, 989 F.2d 1318 (3rd Cir. 1993)
    Where there has been an inconsistent verdict, criminal defendant is protected against jury irrationality and error by review of sufficiency of evidence.

  121. US v. Vasquez Lopez, 22 F.3d 900 (9th Cir. 1994)
    Constitution forbids all parties in either criminal or civil trials from challenging prospective jurors solely on account of their race.

  122. US v. Zuniga, 989 F.2d 1109 (9th Cir. 1993)
    Even if alibi evidence is weak, insufficient, inconsistent, or of doubtful credibility, alibi instructions should be given.

  123. Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999)
    In other charge analysis, fundamental question is whether jury was improperly coerced, less infringing defendants, due process rights.

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