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F 2.20 n1 Witness Character For Honesty Or Truthfulness.
Normally, if there is testimony as to a witness’ honesty or veracity, the jury should be instructed that the character of the witness for honesty or truthfulness or their opposites should be considered in evaluating witness credibility. However, if the opinion testimony regarding the witness’ veracity is based primarily upon inconsistent statements, then the court may properly strike the clause relating to character for honesty and veracity provided the clause relating to inconsistent statements is included in the instruction. (See People v. Morris (91) 53 C3d 152, 213, fn 15 [279 CR 720].)
[Research Note: See FORECITE BIBLIO 2.20]
F 2.20 n2 Bias Of Police Witness Re: Forfeiture And Possession For Sale.
In cases where a police officer “expert” testifies that the defendant possessed drugs for the purposes of sale, the defendant may wish to request an instruction informing the jury that if the defendant is convicted of possession for sale, his/her property may be forfeited and over 75% of the proceeds may go to the local police agency which participated in the seizure. (HS 11489(b)(2).) Such an instruction is warranted because the police officer may have a bias or motive in seeing that the defendant is convicted of possession for sale as opposed to simple possession which does not result in forfeiture. (See People v. Cardwell UNPUBLISHED (F014847).) [A copy of this opinion is available to FORECITE subscribers. Ask for Opinion Bank # O-105.]
RESEARCH NOTES: See Annotation, Admissibility, in criminal prosecution, of expert opinion allegedly stating whether drugs were possessed with intent to distribute — state cases, 83 ALR4th 629 and Later Case Service.
[Research Note: See FORECITE BIBLIO 2.20]
F 2.20 n3 Witness Credibility: Understanding of Questions.
In addition to the factors specified in CJ 2.20, the jury should also be told to consider whether the witness appeared to “understand the questions clearly and answered them directly.” (See Fed. Jud. Ctr., Pattern Crim. Jury Instructions (1988), Inst. #23, p. 31.)
[Research Note: See FORECITE BIBLIO 2.20]
F 2.20 n4 Witness Credibility: Pretrial Silence as to Exculpatory Evidence–Foundational Facts.
The failure of a defense witness to come forward with exculpatory evidence as to the defendant before trial may be admitted as bearing on the credibility of the witness. (People v. Tauber (96) 49 CA4th 518 [56 CR2d 656]; but see Jefferson, Cal. Evidence Benchbook (2d ed. 1990 supp., §§ 28.1, 28.9.) However, the relevance of such pretrial silence is dependent on proof of foundational facts such as whether the witness knew the charges were pending against the defendant in sufficient detail to know that the information was exculpatory, that the witness had reason to make the information available, that the witness was familiar with means of reporting it to the authorities, and that the defendant or his lawyer, or both, did not ask the witness to refrain from coming forward. (See People v. Ratliff (87) 189 CA3d 696, 700-01 [234 CR 502].) Tauber concluded that the Ratliff foundational criteria were “too restrictive” and held that pretrial silence is admissible if there is substantial evidence that the witness was aware before trial of information that he understood tended to exculpate one who had been charged with a crime.
This issue raises considerations regarding jury instructions. For example, does the defendant have a right, upon request, to a preliminary fact instruction per EC 403 (see e.g., FORECITE F 2.001a; F 2.03a) and, if so, which preliminary facts must be proven? Additionally, there is the question of whether the specific factors should be added to an instruction such as CJ 2.20 which informs the jury of factors which may affect witness credibility.
F 2.20 n5 Unavailability of Witness.
See FORECITE F 6.50d [Prior Statement Of Deceased Declarant In Gang Case.
F 2.20 n6 Witness Bias: Test For Violation Of Sixth Amendment Right To Confrontation.
“The test for a violation [of the Sixth Amendment right of confrontation] is whether ‘a reasonable jury might have received a significantly different impression of the witness’ credibility had defense counsel been permitted to pursue his proposed line of cross-examination.’ [Citation.]” (U.S. v. Davis (DC Cir. 1997) 127 F3d 68, 70; see also People v. Quartermain (97) 16 C4th 600, 623 [66 CR2d 609]; cf., Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354] [recognizing importance of 6th Amendment right to confrontation].)
F 2.20 n7 Factors Affecting Credibility Of Witness: Other Deals Besides Immunity.
The Use Note to CJ 2.20 states that: “When the prosecution relies on the testimony of an immunized witness, it is appropriate upon request to include the following in this instruction, e.g., ‘whether the witness is testifying under a grant of immunity.'”
However, the rationale for this modification of CJ 2.20 applies equally to other deals or agreements between the prosecution and the testifying witness such as benefits regarding sentencing or disposition of pending charges or monetary compensation. (See People v. Echevarria (92) 11 CA4th 444, 450 [13 CR2d 840]; but see People v. Riel (2000) 22 C4th 1153, 1179 [96 CR2d 1] [testimony given as condition of plea bargain was not inherently suspect].)
F 2.20 n8 Failure To Request Modification Of CJ 2.20 To Include Consideration Of Immunity May Be Ineffective Assistance Of Counsel.
It is established that the defendant has a right, upon request, to amplify CJ 2.20 by adding the following to the list of factors:
“Whether the witness is testifying under a grant of immunity.”
(See CJ 2.20, Use Note; see also People v. Echevarria (92) 11 CA4th 444 [13 CR2d 840].) Hence, when immunity is a factor as to witness credibility it may be ineffective assistance of counsel to fail to request the above amplification of CJ 2.20. [See Brief Bank # B-814 for additional briefing on this issue.]
F 2.20 n9 Witness Credibility: Coerced Testimony Of Third Party.
People v. Badgett (95) 10 C4th 330 [41 CR2d 635] held that exclusion of coerced testimony of a third party “is based on the idea that coerced testimony is inherently unreliable, and that its admission therefore violates a defendant’s right to a fair trial…” (Id. at 347. [Emphasis in original.].)
The rule is different, however, when the defendant claims the evidence at trial was the end product or “fruit” of unlawful police coercion of a third party. “[A] defendant may not prevail simply by alleging that the challenged evidence was the fruit of an assertedly involuntary statement of a third person … Rather, the defendant may prevail only by demonstrating fundamental unfairness at trial, normally by establishing that evidence to be produced at trial was made unreliable by coercion.” (People v. Jenkins (2000) 22 C4th 900, 966 [95 CR2d 377] [Emphasis added.]; see also People v. Lee (2002) 95 CA4th 772 [115 CR2d 828].)
See also FORECITE F 2.20h.
F 2.20 n10 Witness Credibility In Sexual Assault Cases: The Defendant Is Entitled To Attack The Credibility Of The Complainant With All Relevant Impeaching Evidence.
An article on this issue, “Evidentiary Issues Frequently Arising In Sex Cases” by Dallas Sacher, is available to FORECITE subscribers. See Article Bank # A-95.
F 2.20 n11 Witness Credibility In Sexual Assault Cases: Properly Applied, The Fresh Complaint Rule Allows For The Admission Of A Very Limited Class Of Evidence.
An article on this issue, “Evidentiary Issues Frequently Arising In Sex Cases” by Dallas Sacher, is available to FORECITE subscribers. See Article Bank # A-95.
F 2.20 n12 Witness Credibility: Showing Of Reliability Required For Admission Of Prior Threat Of Injury Per EC 1370.
ALERT: Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354] may provide a basis for excluding hearsay evidence offered pursuant to EC 1370. (See PG VII(C)(43) [Crawford Update].)
(See People v. Kons (2003) 108 CA4th 514 [133 CR2d 520].)
F 2.20 n13 Witness Competency: Must Be Challenged At Trial; Burden Of Proof.
A witness’s competence to testify must be challenged at trial. (People v. Lewis (2001) 26 C4th 334, 360; People v. Cudjo (93) 6 C4th 585, 622.) The burden of proving a witness’s incompetence lies with the objecting party. (People v. Lewis, supra, 26 C4th at p. 360; see also People v. Augustin (2003) 112 CA4th 444.)
F 2.20 n14 Witness Competency: Disabilities.
“A person is disqualified to be a witness if he or she is . . . [i]ncapable of expressing himself or herself concerning the matter so as to be understood, either directly or through interpretation by one who can understand him [or her] ….” However, a witness who is merely difficult to understand is not inherently or automatically incompetent under EC 701. (People v. Lewis (2001) 26 C4th 334, 361; see also People v. Augustin (2003) 112 CA4th 444, 447-49.)
F 2.20 n15 Witness Disability: Leading Questions.
A witness’s physical disability is a “special circumstance” justifying a decision to allow counsel to ask leading questions of the witness. (See EC 767(a).) For example, in Mead v. Mead (1919) 41 CA 280 the appellate court upheld the trial court’s decision to allow counsel to ask the witness leading questions because “[t]he physical and mental condition of the witness justified this manner of examination….” (Id. at p. 284; see also People v. Augustin (2003) 112 CA 4th 444, 449-50 [speech impediment precluded witness from testifying efficiently; leading questions were the most direct means of circumventing this obstacle]; People v. Mason (48) 86 CA2d 445, 456 [it is “proper to ask leading questions when they are designed more quickly to reach the testimony…”].)
F 2.20 n16 Witness Credibility: Prior Felony Conviction.
Although CJ 2.23 deals specifically with prior felony convictions, without modification, that instruction may not benefit the defense because it instructs the jury to consider the prior felony conviction “only” on credibility. (SeePeople v. Horning (2004) 34 C4th 871, 911.) Accordingly, it may be appropriate to request CJ 2.20 to address this issue. (CJ 2.20 does provide such a prior felony conviction factor.)
F 2.20 n17 Character For Truthfulness Or Untruthfulness Not Applicable to Mental Disorder Evidence.
“Character evidence is ‘evidence regarding someone’s general personality traits; evidence of a person’s moral standing in a community based on reputation or opinion.’ [Citation.] An expert’s opinion regarding a mental disorder, on the other hand, is admitted only to inform the jury of the effect a certain medical condition may have on the witness. [Citation.] The expert is not allowed to give an opinion on whether a witness is telling the truth because the determination of credibility is not a subject sufficiently beyond common experience that the expert’s opinion would assist the trier of fact. [Citations.]” (People v. Long (2005) 126 CA4th 865, 871.) Accordingly, the specific factor in CJ 2.20 relating to the “character of the witness for honesty or truthfulness or their opposites” does not apply to expert testimony concerning a witness’ mental impairment or disorder. (Ibid.)
F 2.20a
Immunized Witness To Be Viewed With Distrust
*To be added at conclusion of CJ 2.20 or as separate instruction:
The evidence establishes that __________ [insert name of immunized witness] was granted immunity from prosecution by the District Attorney in exchange for [his] [her] testimony. Once a witness has received immunity in the expectation that [his] [her] testimony will implicate the defendant, contrary testimony at trial — regardless of its truth — will subject [him] [her] to possible perjury charges. Thus, an immunized witness has a considerable interest in testifying in a manner which is acceptable to the prosecutor. You should view [his] [her] testimony with distrust.
You should determine whether __________’s testimony has been affected by the grant of immunity or by [his] [her] prejudice against the defendant. You should weigh [his] [her] testimony by the same standards by which you determine the credibility of other witnesses.
Points and Authorities
CJ 2.20 instructs the jury on the general factors to use in assessing a witness’ credibility including the presence of bias and self-interest. In People v. Harvey (84) 163 CA3d 90, 112-13 [208 CR 910], the court concluded that if the defendant requests that the jury be instructed to view an immunized witness with distrust, “there is no question he [is] [would have been] entitled to it.” (See also, People v. Pitts (90) 223 CA3d 606, 880-81 [273 CR 757]; Rucker & Overland, California Criminal Forms & Instructions (1983), Bancroft-Whitney Co., § 38.27A; but see People v. Daniels (91) 52 C3d 815, fn 20 [277 CR 122] [no sua sponte duty].)
However, in People v. Hunter (89) 49 C3d 957, 976-78 [264 CR 367], the Supreme Court held that the jury may not be instructed to view the immunized witness with “suspicion” or “greater care.” Rather, an instruction in the language of the second paragraph above, together with CJ 2.20, will “adequately” inform the jury. (Id. at 978; People v. Echevarria (92) 11 CA4th 444, 449-51 [13 CR2d 840] [no error to refuse instruction to view testimony with distrust].)
The first paragraph of the above instruction is adopted from Devitt, et al., Fed. Jury Prac. & Inst. (1992) § 17.04. Hunter did not consider the perjury concerns addressed by the Devitt instruction.
By seeking to assure that the jurors fairly evaluate the credibility of the prosecution witnesses it protects the defendant’s federal constitutional rights to trial by jury and due process (6th and 14th Amendments). [See generally, FORECITE PG VII.]
NOTES
When a prosecution witness has received immunity from a potential penalty, CJ 17.42 concerning the jury’s consideration of penalty should be modified. (See FORECITE F 17.42a.)
F 2.20b
Credibility of Witness: Applicability To Out-Of-Court Statements
*Modify CJ 2.20 as follows:
Add after ¶ 1:
Every person who makes an out-of-court statement which has been admitted into evidence is an out-of-court declarant. You are the sole judges of the believability of an out-of-court declarant and the weight to be given the statements of any out-of-court declarant.
Modify ¶ 3 to provide as follows [added language is capitalized]:
In determining the believability of a witness [OR OUT-OF-COURT DECLARANT], you may consider anything that has a tendency in reason to prove or disprove the truthfulness of the testimony of the witness or the statements of the witness [OR OUT-OF-COURT DECLARANT] including but not limited to any of the following:
The extent of the opportunity or the ability of the witness [OR OUT-OF-COURT DECLARANT] to see or hear or otherwise become aware of any matter about which the witness has testified [OR THE OUT-OF-COURT DECLARANT HAS MADE STATEMENTS];
The ability of the witness [OR OUT-OF-COURT DECLARANT] to remember or communicate any matter about which the witness has testified [OR THE OUT-OF-COURT DECLARANT HAS MADE STATEMENTS];
The character and quality of that testimony [OR OUT-OF-COURT STATEMENT];
The demeanor and manner of the witness while testifying;
The existence or non-existence of a bias, interest or other motive on the part of the witness [OR THE OUT-OF-COURT DECLARANT];
Evidence of the existence or nonexistence of any fact testified to by the witness [OR ABOUT WHICH AN OUT-OF-COURT DECLARANT MADE STATEMENTS];
The attitude of the witness [OR THE OUT-OF-COURT DECLARANT] toward this action or toward the giving of testimony [OR OUT-OF-COURT STATEMENTS];
[A statement previously made by the witness [OR OUT-OF-COURT DECLARANT] that is [consistent] [or] [inconsistent] with the testimony of the witness [OR THE STATEMENTS BY THE OUT-OF-COURT DECLARANT]];
[The character of the witness [OR OUT-OF-COURT DECLARANT] for honesty or truthfulness or their opposites];
[An admission by the witness [OR OUT-OF-COURT DECLARANT] of untruthfulness];
[The witness’ [OR OUT-OF-COURT DECLARANT’S] prior conviction of a felony];
[Past criminal conduct of a witness [OR OUT-OF-COURT DECLARANT] amounting to a misdemeanor].
Points and Authorities
CJ 2.20 informs the jurors that they are the sole judges of the credibility of witnesses and provides the jury with specific considerations in evaluating the testimony of witnesses. However, these considerations are no less important when the prosecution relies upon extrajudicial statements by an out-of-court declarant. In analogous situations, where the reliability of certain evidence was at issue, the California Supreme Court has recognized the necessity of expanding standard instructions so that a jury is informed of its duty to determine the credibility and reliability of extra-judicial statements. (See People v. Andrews (89) 49 C3d 200, 214-15 [260 CR 583]; People v. Montiel (93) 5 C4th 877, 929 [21 CR2d 705]; see also FORECITE F 3.11a and FORECITE F 3.11b.) These cases recognize that a witness’ words at trial may often be supplemented by out-of-court statements, which also must be scrutinized for their reliability and believability. As Montiel recognized, such requirements cannot narrowly be construed when they are prompted by broad underlying concerns of reliability. Hence, the trial court has a sua sponte duty to formulate a non-CALJIC instruction, or to expand an existing instruction appropriately, when confronted with the situations where extra-judicial statements play a large role in the prosecution’s proof and thus must be evaluated by the jury on an equal footing with the testimony given by live witnesses at the trial.
By failing to inform the jurors that they should consider the credibility of the witness’ out-of-court statements, CJ 2.20 improperly precludes the jury from considering the reliability of a portion of the prosecution’s case in violation of the defendant’s state and federal constitutional rights to trial by jury and due process. (U.S. Const. 6th and 14th Amendments; Calif. Const. Art I, § 15 and § 16; see also U.S. v. Rockwell (3d Cir 1986) 781 F2d 985.
(See FORECITE F 2.20f.)
NOTES
[Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-629.]
CAVEAT: This instruction should be given in conjunction with other relevant instructions relating to accomplice corroboration and extra-judicial statements. (E.g., CJ and FORECITE 3.01 et seq.) The jury should understand that these instructions place additional restrictions on the use of out-of-court statements and, in this regard, out-of-court statements should not be equated with in-court testimony.
NOTE: Whether Modification Is Required Sua Sponte. See People v. Lawley (2002) 27 C4th 102, 161 [115 CR2d 614]; see also People v. Andrews (89) 49 C3d 200, 214-215 [260 CR 253][modification not required sua sponte where neither trial court nor parties suggested that the corroboration required differed as between the out-of-court and in-court statements].
F 2.20c
Credibility Of Witness:
Use Of Drugs, Alcohol Or Other Mental Impairment Of Witness At The Time Of The Events
*Add to CJ 2.20 as a factor to consider:
The ability of the witness to observe and/or perceive any matter about which the witness has testified in light of the witness’ [intoxication] [drug use] [mental impairment]] [__________] (insert other appropriate mental impairment).
Points and Authorities
CJ 2.20 does not include the witness’ mental impairments among the factors which the jury should consider in evaluating credibility. However, if the witness is intoxicated, on drugs, or otherwise mentally impaired this can be an important factor for the jury to consider in determining the witness’s credibility. (See generally People v. Anderson (Anderson II) (2001) 25 C4th 543, 574 [106 CR2d 575].) Therefore, instruction upon this factor is appropriate. (SeeU.S. v. Vgeri (9th Cir. 1995) 51 F3d 876, 880-81.)
See also FORECITE F 2.20k [Testimony Of Witness Who Was Under The Influence Of Drugs Or Alcohol When Testifying Should Be Viewed With Greater Caution Than Other Witnesses].)
In People v. Barnett (76) 54 CA3d 1046, 1052 [127 CR 88], the court held that the following instruction correctly stated the law and should have been given upon request:
“In determining the credibility of a witness you may consider…his capacity to hear or see that about which he testified and his ability to recollect or relate to such matters; specifically in this regard, you may consider whether any witness was under the influence of alcohol, drugs, or other intoxicants at the time he testified; and if you believe that any witness was under the influence of alcohol, drugs, or other intoxicants at the time of his testimony, you may but are not obligated to disregard or give little weight to his or her testimony insofar as you find that his credibility has been impaired thereby; you may reach that conclusion if you find that as a result of being under the influence of alcohol, drugs, or other intoxicants while testifying, such witness’ ability to recollect and relate matters about which he or she testified was impaired.”
(Barnett, 54 CA3d at 1050 fn 2.)
Additional samples:
A witness’ mental condition at a time about which the witness testifies affects his or her credibility. It goes to the witness’ ability to comprehend, know and correctly recall the truth. It is for you to consider whatever impairment the witness might have had in assessing the witness’ credibility and in determining what weight to give to the testimony.
[Source: United States v. Partin (5th Cir. 1974) 493 F2d 750, 762-64 and United States v. Martino (5th Cir. 1981) 648 F2d 367.]
The [testimony] [out of court statements]* of some witnesses must be considered with more caution than other witnesses.
For example, a witness who was using addictive drugs at the time may have an impaired ability to perceive or remember the matters to which he or she has testified.
So, while a witness of that kind may be entirely truthful when [testifying] [making out of court statements], you should consider that [testimony] [out of court statements] with more caution than that of other witnesses.
[Source: Adapted from 11TH CIRCUIT PATTERN JURY INSTRUCTIONS – CRIMINAL Special Instructions 1.3 [Accomplice-Addictive Drugs-Immunity] (1997); see also U.S. v. Fajardo (11th Cir. 1986) 787 F2d 1523, 1527.]
F 2.20d
Credibility Of Witness: Consideration Of Reasonableness
Of The Testimony
*Modify 3rd factor of CJ 2.20 to provide as follows [added language is capitalized]:
The REASONABLENESS, character and quality of that testimony;
Points and Authorities
The reasonableness of a witness’ statements is a relevant factor in determining the credibility and weight to be given to the testimony. (People v. Perkins (37) 8 C2d 502, 519 [66 P2d 631]; see also, Rogars v. St. Jude Hosp. (67) 252 CA2d 496, 501 [60 CR 528].)
F 2.20e
Interest Of Witness In Outcome Of Proceeding
*Add to CJ 2.20:
Bias, interest, or other motive may include a financial interest in the outcome of the proceeding. Such a financial bias, interest, or motive may result from ___________ [Insert financial interest of the witness, e.g., damages liability per CC 3333.4 (see FORECITE F 2.80 n5); bias of police witness re: forfeiture (see FORECITE F 2.20 n2, 2.80 n5, 12.01, 12.02.]
Points and Authorities
“It is, of course, an elementary rule that the financial interest of a witness in the result of a case in which he testifies is a proper subject of cross-examination as tending to show his bias and affecting his credibility.” (People v. Philpott (62) 201 CA2d 859, 864 [20 CR 540]; see also Calvert v. State Bar (91) 54 C3d 765, 777 [1 CR 684].)
Hence, the jury may properly be instructed to consider a witness’ interest in the outcome of the case in evaluating the credibility of the witness. (People v. Brown (43) 22 C2d 752, 758 [141 P2d 1] [“In determining the credibility of any witness … you may also consider … the interest or absence of interest in connection with the results of the issues before you”]; see also Ninth Circuit Manual of Model Jury Instructions, Criminal (1994) § 1.7 [“…you may take into account … the witness’ interest in the outcome of the case …”].)
In CJ 2.20 this concept is arguably encompassed within the discussion of “bias, interest or motive.” However, this instruction fails to specifically refer to an interest in the outcome of the case. Moreover, when a specific financial interest is involved based on matters which may not be within the jury’s common knowledge, it may be necessary to identify the particular financial interest (e.g., financial interest of police in forfeiture proceeding (see FORECITE F 2.80 n5); damages liability dependent on DUI proceeding. (See FORECITE F 12.60f for an additional instruction from Ed Kuwatch, author of California Drunk Driving Law, Fast Eddie Publishing (707) 459-3999.)
The constitutionality of CC 3333.4 has been ruled on by several trial courts with conflicting results. In Congress of California Seniors v. Quackenbush (4/4/97, San Francisco Sup. Ct. No. 983314) 97 DAR 4527 the court issued a preliminary injunction against implementing the initiative. [A copy of the above order is available to FORECITE subscribers. Ask for Opinion # O-233.]
NOTE: The constitutionality of CC 3333.4 has been ruled on in Yoshioka v. Superior Court (Todd) (97) 58 CA4th 972 [68 CR2d 553] [Prop. 213 constitutional in both its retroactive and prospective application].
CAVEAT: It is error generally to single out the testimony of a civil defendant when instructing the jury regarding bias from a personal interest in the outcome of the case. (See People v. Brown (43) 22 C2d 752, 757 [141 P2d 1].) The same concerns apply with even greater force to the testimony of a criminal defendant. (See e.g., U.S. v. Bear Killer (8th Cir. 1976) 534 F2d 1253, 1260.) Hence, counsel should carefully consider the potential downside of focusing the jury on consideration of witnesses’ personal interest in the outcome of the case when the defendant has testified.
F 2.20f
Witness Credibility:
Inability To Cross-Examine Out-Of-Court Declarant’s Statements
*Add to CJ 2.20:
ALTERNATIVE 1:
In deciding whether to believe the out-of-court statements of _______ you should consider the inability of defendant to cross-examine [him] [her].
Cross-examination is a fundamental right and its absence requires you to view the statements with special care.
ALTERNATIVE 2:
In considering how much weight, if any, to give to the out of court statement of ______________ [insert name of co-defendant], you should consider the fact that the defendant was not able to call ____________________ into court and cross-examine [him] [her]. In this regard, cross-examination is the principal means by which the believability of a witness and the truthfulness of [his] [her] testimony are tested.
Points and Authorities
Out-of-court statements may be admitted even though the defendant did not have an opportunity to cross-examine the witness. (See e.g., People v. Fuentes (98) 61 CA4th 956, 965 [72 CR2d 237] [statements not subject to cross-examination may be admissible if they fall within a firmly rooted hearsay exception].)
However, Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354] provides a basis for challenging admission of any testimonial hearsay as to which the defendant has been denied confrontation and the declarant is unavailable. (See FORECITE PG VII(C)(43) [Crawford Update].) This is so because there can be no dispute that the lack of cross-examination may affect the weight and credibility of the testimony. Cross-examination is the “greatest legal engine ever invented fot the discovery of the truth.” (Lilly v. Virginia (99) 527 US 116 [144 LEd2d 117; 119 SCt 1887, 1894] [footnotes and citations omitted].) It is “the time-honored process [that is] best suited to determine the trustworthiness of testimonial evidence.” (Watkins v. Sowders (81) 449 US 341, 349 [66 LEd2d 549; 101 SCt 654]; see also Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354]; Ohio v. Roberts (80) 448 US 56, 70 [65 LEd2d 597; 106 SCt 1121] [testimony given under oath and subject to cross-examination bears an “indicia of reliability”; Kentucky v. Stincer (87) 482 US 730, 747 [96 LEd2d 631; 107 SCt 2658] dissenting opinion [cross-examination is “primary means for assuring the reliability of testimony from adverse witnesses”].) In other words, cross-examination is a fundamental right as well as a truth revealing process. (See U.S. v. Bagley (85) 473 US 667 [87 LEd2d 481; 105 SCt 3375]; U.S. v. Cronic (84) 466 US 648 [80 LEd2d 657; 104 SCt 2039]; Davis v. Alaska (74) 415 US 308, 318 [39 LEd2d 347; 94 SCt 1105]; Smith v. Illinois (68) 390 US 129, 131 [19 LEd2d 956; 88 SCt 748]; Brookhart v. Janis(66) 384 US 1, 3 [16 LEd2d 314; 86 SCt 1245; Kelly v. State Bar (91) 53 C3d 509, 514 [280 CR 298] [credibility of witness repudiating prior testimony is virtually impossible to evaluate in absence of cross-examination].)
Hence, testimonial hearsay statements should be excluded under Crawford when the declarant is unavailable and the defendant had no opportunity to confront the declarant.
However, when a statement is allowed into evidence without cross-examination the jury should receive a “clear, firm prophylactic instruction highlighting [defendant’s] lack of any opportunity to cross-examine.” (See U.S. v. Zannino (1st Cir. 1990) 895 F2d 1, 8 fn 6; see also State v. Brown (77) 549 SW2d 336 [citing McCormick on Evidence § 19 for proposition that, on request, jury should be instructed to consider lack of cross-examination in weighing the evidentiary value of uncross-examined testimony]; People v. Duke (99) 74 CA4th 23 [87 CR2d 547] [court admonished the jury that the defendant cannot call the co-defendant as a witness due to the privilege and that the jury should consider this factor in determining how much weight, if any, to give the confession in using it against the defendant].)
The second sentence in Alternative 2 is adapted from Davis v. Alaska (74) 415 US 308, 316 [39 LEd2d 347; 94 SCt 1105].)
F 2.20g
Believability Of Witness: Jury May Believe A Portion Of Witnesses’ Testimony
*Add at end of CJ 2.20 ¶1:
You are not required to believe everything a witness says. You may believe all of it, part of it, or none of it.
Points and Authorities
It is, of course, well settled that the jury may accept some portions of a witness’ testimony and reject other portions. (See, People v. Geiger (84) 35 C3d 510, 531 [199 CR 45]; People v. Wickersham (82) 32 C3d 307, 328 [185 CR 436]; People v. Thornton (74) 11 C3d 738, 755 [114 CR 467]; People v. Ceja (94) 26 CA4th 78, 86 [31 CR2d 475]; People v. LaSalle (80) 103 CA3d 139, 145-46 [162 CR 816].)
In fact, the jury may even come up with a “third scenario” by combining parts of the defense and prosecution evidence: “We recognize that we (like the jury) are not required to make a binary choice between the prosecution evidence and the defense evidence; if the evidence as a whole would support a third scenario, the trial court may be required to give instructions on that scenario. [Citation.]” (People v. Hernandez (2003) 111 CA4th 582, 589-90; see also [NF] People v. Wilkins (3/7/2013, S190713) 56 CA4th 333, 350 [“although the jury clearly disbelieved defendant’s testimony that he had not stolen the property from the Kane home, it could have believed other portions of his testimony…”]; People v. Barton (1995) 12 CA4th 186, 198 n.7; People v. Wickersham (1982) 32 CA3d 307, 328.)
However, unlike other respected pattern instructions, CALJIC does not so inform the jury. Accordingly, CALJIC should be supplemented with the above instruction which is taken from the 9th Circuit Manual of Model Jury Instructions, Criminal (1997) Instruction 1.7, page 9. (See also Devitt, et al., Instruction No. 15.01. [“After making your assessment concerning the credibility of a witness, you may decide to believe all of that witness’ testimony, only a portion of it, or none of it”].)
F 2.20h
Confessions And Admissions By Witness/Defendant:
Consideration of Coercion, Etc.
*Add to CJ 2.20 when appropriate:
ALTERNATIVE FORMS
Alternative Form 1:
In determining the believability of alleged oral admissions or confessions of a witness, you may consider any evidence of the circumstances surrounding the defendant’s interrogation, together with any psychological factors that may have influenced defendant in making such admissions or confessions. The weight, if any, to be given by you to any oral admission or confession, is for your sole determination.
Alternative Form 2:
If you find from the evidence that an alleged admission or confession was made by a witness, you must then determine if it was produced by means of coercion. Although coercive methods do not necessarily produce false confessions or admissions, they certainly may have that effect. Therefore, if you determine that coercion did occur, you should consider this fact in deciding the weight and believability, if any, such admission or confession should be given.
Alternative Form 3:
In determining whether any statement, confession, admission, or act or omission alleged to have been made by a witness outside of court was knowingly and voluntarily made or done, you should consider the age, training, education, occupation, and physical and mental condition of the defendant, and [his] [her] treatment while in custody or under interrogation. You should also consider all other circumstances in evidence surrounding the making of the statement, confession or admission.
If after considering the evidence you determine that a statement, confession, admission, or act or omission was made or done knowingly and voluntarily, you may give it such weight as you feel it deserves under the circumstances.
Points and Authorities
“[The] physical and psychological environment that yielded the confession can … be of substantial relevance to the ultimate factual issue of the defendant’s guilt or innocence.” (Crane v. Kentucky (86) 476 US 683, 689 [90 LEd2d 636; 106 SCt 2142]; see also A.M. v. Butler (7th Cir. 2004) 360 F3d 787, 797 [defendant’s age is a crucial factor in evaluating whether the totality of the circumstances would have led a reasonable person in defendant’s position to believe he was under arrest]; Alvarado v. Hickman (9th Cir. 2002) 316 F3d 841, 851; United States v. Ervin, L. (10th Cir. 1998) 147 F3d 1240, 1248.) Hence, “juries have been at liberty to disregard confessions that are insufficiently corroborated or otherwise deemed unworthy of belief.” (Lego v. Twomey (72) 404 US 477, 486-87 [30 LEd2d 618; 92 SCt 619].) When the record contains evidence upon which the jury may question the credibility of the confession, the jury should be informed about the need to weigh the statement in light of the circumstances. (See e.g., U.S. v. Hoac (9th Cir. 1993) 990 F2d 1099, 1107-09 [court is obligated under federal rules to instruct the jury concerning the weight to be accorded a defendant’s statement when the defendant raises a genuine issue concerning the voluntariness of the statement; Hof v. State (Maryland) (95) 655 A2d 370 [337 Md 581] [requiring jury to consider whether confession was voluntary]; see also In re Cameron (68) 68 C2d 487, 498 [67 CR 529] [coercion should be determined by considering the “totality of the circumstances”].)
The same considerations apply when a coerced admission or confession is made by a witness. Although the 5th Amendment privilege against self-incrimination does not apply, the defendant’s federal constitutional right to due process and to a fair, reliable trial by jury are implicated. (See People v. Badgett (95) 10 C4th 330, 347 [41 CR2d 635]; People v. Douglas (90) 50 C3d 468 [268 CR 126]; U.S. v. Chiavola (7th Cir. 1984) 744 F2d 1271; U.S. v. Fredericks(5th Cir. 1978) 586 F2d 470; La France v. Bohlinger (1st Cir. 1974) 499 F2d 29.)
Accordingly, when appropriate, specific instructions should be given regarding the factors which may impact the believability of a witness’ admission or confession.
[See Article Bank # A-73 for an article discussing this issue (“Defendant’s Right to Challenge Coerced Statements by Witnesses” by Kim Malcheski, Cal App News, Spring 1999).]
F 2.20i
Believability Of Witness:
Post-Miranda Pretrial Silence — Evidence Presented Or Prosecutorial Comment Made
*Add to CJ 2.20:
You may not consider for any purpose, including assessing the credibility of the defendant’s testimony, evidence that the defendant refused to talk with the police prior to trial. In so refusing, the defendant was exercising [his] [her] constitutional rights and no inference of consciousness of guilt or lack of credibility may be inferred from such exercise.
Points and Authorities
It is well established that the jury may not draw an adverse inference from the defendant’s pretrial silence. (Doyle v. Ohio (76) 426 US 610 [49 LEd2d 91; 96 SCt 2240]; Wainright v. Greenfield (86) 474 US 284 [88 LEd2d 623; 106 SCt 634]; People v. Ridley (65) 63 C2d 671, 676 [47 CR 796]; People v. Belmontes (88) 45 C3d 744, 785-87 [248 CR 126]; People v. Free (82) 131 CA3d 155, 161-66 [182 CR 259]; Killian v. Poole (9th Cir. 2002) 282 F3d 1204, 1211 [applyingDoyle for the proposition that if a person is told they can exercise their right to be silent whenever they want without penalty, they should not be badgered at trial by a prosecutor about whether they had “something to hide” by exercising that right].) Such an inference violates the defendant’s 5th and 14th Amendment due process rights (Doyle, supra; see also Griffin v. California (65) 380 US 609 [14 LEd2d 106; 85 SCt 1229].) Moreover, the exercise of a privilege by a witness is an appropriate matter upon which to instruct the jury. (See, CJ 2.25 and CJ 2.26.) Hence, if the jury learns that the defendant exercised his or her constitutional right to remain silent either through permissible evidence or by prosecutorial misconduct, it may be appropriate to instruct the jury as set forth above. Such an instruction may be especially important in light of the statement in CJ 2.20 ¶2, that “In determining the believability of a witness you may consider anything that has a tendency to prove or disprove the truthfulness of the testimony of the witness….” The jury could interpret this language to authorize its consideration of the defendant’s pretrial silence which follows a Miranda warning as bearing on the credibility of the defendant’s testimony at trial.
(See also FORECITE PG VII(C)(22.1) [Retaliation For Exercising A Right: Due Process Violation].)
CAVEAT: Normally, the first line of defense as to potential Doyle error should be to keep the jury from learning about it at all. An instruction such as the one above should only be considered if there is a danger the jury will consider the defendant’s silence without it.
F 2.20j
Believability Of Witness:
Post-Miranda Pretrial Silence — No Evidence Presented
*Add to CJ 2.20:
You must not speculate about whether or not the defendant made any statements about the case prior to trial.
First, no evidence was presented on this issue and you must not speculate as to any matter upon which no evidence was presented.
Second, even if the defendant had remained silent prior to trial, it was [his] [her] constitutional right to do so. No inference of any kind may be drawn from the defendant’s exercise of [his] [her] constitutional right to remain silent prior to trial.
Points and Authorities
It is well established that the jury may not draw an adverse inference from the defendant’s pretrial silence. (Doyle v. Ohio (76) 426 US 610 [49 LEd2d 91; 96 SCt 2240]; People v. Cockaral (65) 63 C2d 671, 676 [47 Cr 796];Wainright v. Greenfield (86) 474 US 284 [88 LEd2d 623; 106 SCt 634]; People v. Belmontes (88) 45 C3d 744, 785-87 [248 CR 126]; People v. Free (82) 131 CA3d 155, 161-66 [182 CR 259].) Such an inference violates the defendant’s 5th and 14th Amendment due process rights (Doyle, supra; see also Griffin v. California (65) 380 US 609 [14 LEd2d 106; 85 SCt 1229].) Moreover, the exercise of a privilege by a witness is an appropriate matter upon which to instruct the jury. (See, CJ 2.25 and CJ 2.26.) Moreover, even when there is no express evidence or prosecutorial comment regarding the lack of a pretrial exculpatory statement by the defendant, the jury might still conclude that the defendant failed to make such a statement because none was presented in evidence.
For example, when the defendant testified at trial the jury may improperly speculate as to why the defendant did not tell the same story to the police before trial. Or, when the defendant didn’t testify the jury may improperly infer guilt from the absence of a pretrial statement by the defendant. In such a case it would be appropriate to modify the 5th Amendment cautionary instruction regarding the defendant not testifying. The instruction should be modified to include mention of pretrial silence. Such an instruction may be especially important in light of the statement in CJ 2.20 ¶2, that “In determining the believability of a witness you may consider anything that has a tendency to prove or disprove the truthfulness of the testimony of the witness….” The jury could interpret this language to authorize its consideration of the defendant’s pretrial silence which follows a Miranda warning as bearing on the credibility of the defendant’s testimony at trial.
(See also FORECITE PG VII(C)(22.1) [Retaliation For Exercising A Right: Due Process Violation].)
CAVEAT: As with any cautionary or limiting instruction there is a danger of highlighting the prejudicial matter which will have to be considered in deciding whether or not to request this instruction. (See generally F 2.002a.)
F 2.20k
Testimony Of Witness Who Was Under The Influence Of Drugs Or Alcohol When Testifying
Should Be Viewed With Greater Caution Than Other Witnesses
ALTERNATIVE 1:
*Add to CJ 2.20 as a factor to consider:
Whether or not the witness was under the influence of drugs and/or alcohol when he or she testified.
ALTERNATIVE 2:
The [testimony] [out of court statements] of some witnesses must be considered with more caution than the [testimony] [out of court statements] of other witnesses. For example, the testimony of a witness who was under the influence of drugs or alcohol at the time of his or her [testimony] [out of court statements] should be considered with more caution than the [testimony] [out of court statements] of other witnesses.
Points and Authorities
It should be beyond dispute that a witness who testifies while using or while under the influence of drugs or alcohol is more suspect than a witness who is not so impaired. Hence, it is appropriate to specifically instruct the jury that the testimony of a witness who was using or was under the influence of drugs or alcohol at the time of his or her testimony should be viewed with more caution than the testimony of other witnesses. (11TH CIRCUIT PATTERN JURY INSTRUCTIONS – CRIMINAL Special Inst. 1.3 [Accomplice-Addictive Drugs-Immunity] (1997); see also U.S. v. Fajardo (11th Cir. 1986) 787 F2d 1523, 1527].)
See also FORECITE F 2.20c [Credibility Of Witness: Use Of Drugs, Alcohol Or Other Mental Impairment Of Witness At The Time Of The Events].
F 2.20l
Jury Must Only Consider Testimony Based On The Personal Knowledge Of A Witness
*Add to CJ 2.20:
SAMPLE # 1:
The prosecution has the burden of proving by a preponderance of the evidence the existence of the preliminary fact that [the testimony of ____________ (name of witness) regarding _____________ (testimony at issue) was based on _______________’s (name of witness) personal knowledge]. If, and only if, you find that the prosecution has met this burden, you may consider such evidence in your deliberations.
To be based on personal knowledge, the testimony must be a present recollection of an impression derived from the exercise of the witness’s own senses.
[*NOTE: CJ 2.50.2 defining the preponderance standard should be given with this instruction.]
SAMPLE # 2:
The court has permitted a number of witnesses to testify to their understanding of events, intentions, motivations and other matters related to the case. You may only consider this testimony if you find that it was a present recollection of an impression derived from the exercise of the witness’ own senses. You must not consider any testimony which is based upon speculation or intuition.
[Points and Authorities: EC 403].
Points and Authorities
See FORECITE F 105.8 Inst 1.
F 2.20m
Witness Credibility:
Witness Capacity To Perceive And Recollect
As Preliminary Finding Of Fact
*Add to CJ 2.20:
The prosecution has the burden of proving by a preponderance of the evidence the existence of the preliminary fact that witness __________ <name of witness> had the capacity to [perceive] [see] [hear] the matters about which [he] [she] testified. If, and only if, you [all]* agree that the prosecution has met this burden, you may consider the testimony of witness ___________ <name of witness> in your deliberations. However, if a witness provides an essential fact in the case against the defendant, you may not rely upon this evidence, in whole or part, to convict the defendant unless the prosecution has proven the existence of the capacity of witness ____________ <name of witness> to perceive beyond a reasonable doubt.
* See FORECITE F 17.01c re: jury unanimity as to preliminary or foundational facts.
Points and Authorities
See FORECITE 105.8 Inst 2.
F 2.20n
Denial Of Immunity By Prosecution:
Explanatory Instruction
See FORECITE F 320 Inst 1 (a & b).
F 2.20o
Law Enforcement Officer’s Testimony Has No More
Weight Than Other Witnesses
*Add to CJ 2.20:
A police officer’s testimony is to be weighed and judged by the same standard that applies to the average witness.
Points and Authorities
“[I]t is not the law that a police officer’s testimony is to be judged by any other standard than that which applies to the average witness.” (People v. Hanna (39) 36 CA2d 333, 337; see also People v. Cummings (93) 4 C4th 1233, 1290-91 [“The jury was admonished that all witnesses’ testimony was to be judged on the same basis and that no greater weight should be accorded to [the officer] because he had been a deputy in the court”]; People v. Hill (98) 17 C4th 800, 842-43 [“[T]he court should have instructed the jury sua sponte not to give [the officer’s] testimony any artificial weight merely because he was a bailiff. . . . The trial court should have avoided these problems by . . . instructing the jury to give [the officer’s] testimony no extra weight”]; Espinoza v. Superior Court (94) 28 CA4th 957, 964 [“The trial court also has the option of providing, at the parties’ request, further safeguards by way of voir dire, admonishment, or special instructions to jurors concerning how to view testimony of sheriff’s deputy witnesses, and on jurors’ “arms’ length” relations with bailiffs”].)
Moreover, an officer may have his or her own biases such as:
1. The natural desire of a police officer to see a criminal brought to justice may cause him to be less than candid in connection with a collateral inquiry which does not go to what appears to him to be the only relevant question: was the defendant a thief? (People v. Dickerson (69) 273 CA2d 645; see also Briscoe v. LaHue (83) 460 US 325, 365 [75 LEd2d 96; 103 SCt 1108]; People v. Cook (78) 22 C3d 67, 85, fn. 7.)
2. The fact that law enforcement is often a “competitive enterprise” (Terry v. Ohio (68) 392 US 1, 12 [20 LEd2d 889; 88 SCt1868]; Johnson v. United States (48) 333 US 10, 14 [92 LEd 436; 68 SCt 367]; and
3. A police officer who has conducted an illegal search and seizure may be subject to criminal, civil and disciplinary sanctions. (See People v. Dickerson, supra, 273 CA2d at 650 fn. 4.)
4. The possibility of forfeiture may present a possible police bias in certain drug cases. (See e.g., FORECITE F 2.20 n2.)
