F 2.91

F 2.91 n1 Burden Of Proving Identity: No Sua Sponte Duty.

In People v. Alcala (92) 4 C4th 742, 803 [15 CR2d 432], the Supreme Court held that the trial court has no sua sponte duty to give CJ 2.91 or CJ 2.92 and that the general instructions on credibility and burden of proof are sufficient.

However, it should be noted that in Alcala and People v. Blair (79) 25 C3d 640, 662-63 [159 CR 818] upon which Alcala relies, “there was substantial corroborating evidence … connecting the defendant to the crime, apart from the eyewitness testimony.” In Alcala, the court relied, in part, upon the existence of this corroborating evidence in reaching its conclusion that the identify and eyewitness instructions need not be given sua sponte. Hence, this may provide a basis for arguing for a sua sponte duty in identification cases which do not include “substantial corroborating evidence.” [Additional briefing (pre-Alcala) is available to FORECITE subscribers. Ask for Brief Bank # B-500.]

Moreover, CJ 2.91 and CJ 2.92 relate to the prosecution’s burden of proof. Hence, the failure to deliver these instructions may implicate the defendant’s 14th Amendment federal due process rights and counsel may consider preserving this issue for federal habeas or certiorari.

[Research Note: See FORECITE BIBLIO 2.92]

F 2.91 n2 Improper To Refer To The Prosecution as “The People.”

Reference to the prosecution as “The People” may implicate the defendant’s state and federal constitutional rights to due process and fair trial by jury. (See FORECITE F 0.50d.) Any reference to “The People” should be changed to “The Prosecution.”

F 2.91 n3 Failure To Give CJ 2.91 As Reversible Error.

See Brief Bank # B-959 for briefing on this issue.

F 2.91a

Uncorroborated Eye Witness

ALERT: See ALERT in FORECITE F 3.11b.

*Where the evidence warrants it, the following paragraph should be added at the end of CJ 2.91:

You may not convict the defendant on the basis of an out-of-court identification unless you find that the identification is corroborated by other evidence which tends to connect the defendant with the commission of the offense.

Points and Authorities

[See FORECITE F 3.11b]

RESEARCH NOTES

See Annotation, Admissibility and weight of extrajudicial or pretrial identification where witness was unable or failed to make in-court identification, 29 ALR4th 104 and Later Case Service.

F 2.91b

Eyewitness Identification: When Defendant Present At Scene

* Modify CJ 2.91 as follows [added language is capitalized]:

EVEN IF THE EVIDENCE ESTABLISHES THAT THE DEFENDANT WAS PRESENT AT THE SCENE, the burden is STILL on the People to prove that the defendant is the person who committed the crime with which [he] [she] is charged.

Points and Authorities

Typically eyewitness identification issues occur in the context of whether or not the defendant was present when the crime was committed. However, even if the evidence establishes that the defendant was present, eyewitness identification may be a crucial issue if there were multiple defendants and the eyewitness gives testimony as to “which defendant did what.” In such a case, all of the normal considerations regarding eyewitness identification come into play and, therefore CJ 2.91, as modified above, should be given. (See generally, People v. Wright (88) 45 C3d 1126, 1149 [248 CR 600].)

Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See FORECITE PG VII.]

NOTES

[Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-635.]

CJ 2.92 should also be given in such circumstances.