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F 3.19 n1 Burden Of Proving Corroborating Witness Is An Accomplice: Constitutional Challenge.
In People v. Frye (98) 18 C4th 894, 967-68 [77 CR2d 25] the Supreme Court declined to reconsider the decision in People v. Tewksbury (76) 15 C3d 953 [127 CR 135], from which CJ 3.19 was derived. In Frye the court concluded that because the corroboration requirement established in PC 1111 has no bearing on the prosecution’s proof of any element of the charged crime, there is no constitutional impediment to placing on a defendant the burden of proving, by a preponderance of the evidence, a witness’ status as an accomplice.
F 3.19a
Burden Of Proving Corroborating Witness Is An Accomplice:
Proof Of Accomplice As To One Crime Is Sufficient
*When appropriate, modify CJ 3.19 to provide as follows (added material is capitalized):
The defendant has the burden of proving by a preponderance of the evidence that __________ was an accomplice in ANY OF the crimes charged against the defendant.
Points and Authorities
In a case involving multiple offenses, use of the term “crimes” in CJ 3.19 may mislead the jury into believing that the defendant must prove that the witness was an accomplice to each and every offense charged. In point of fact, the witness need only be an accomplice to one of the charged offenses to trigger the corroboration requirement. Hence, when multiple offenses are charged CJ 3.19 should be modified to provide that the witness must be an accomplice in “any of the crimes charged.” (See, People v. Stankewitz (90) 51 C3d 72, 92 [270 CR 817] [recognizing this issue as “an interesting theoretical point” but not addressing it because there was no evidence that the witness gave any “meaningful assistance to the defendant in the commission of any of the crimes”].)
Improper or inadequate instruction upon witness credibility implicates the defendant’s state (Art. I § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]
RESEARCH NOTES
See FORECITE BIBLIO 3.10, et al.
F 3.19b
Burden To Prove Corroborating Witness As An Accomplice:
Jury May Rely On Prosecution Evidence
*Add to CJ 3.19:
In determining whether the defendant has met this burden you may consider evidence presented by the prosecution as well as that presented by the defense.
Points and Authorities
In meeting the burden to establish that a witness is an accomplice, “it is of no consequence whether the evidence was introduced by one party rather than the other. [Citation omitted].” (People v. Belton (79) 23 C3d 516, 524 [citation omitted] [153 CR 195]; see also People v. Stankewitz (90) 51 C3d 72, 92-93 [270 CR 817].) However, CJ 3.19 does not make this rule clear to the jury but rather implies that “the defendant has the burden” of producing the necessary evidence. Therefore, CJ 3.19 should be modified as set forth above to avoid misguiding the jury on this point. (See, People v. Stankewitz at 92-93 [implicitly recognizing that the jury should be told “evidence produced by either party [is] to be considered …” but concluding that such an amplification of the standard instruction should be requested].)
(See FORECITE F 1.00 n9.)
Improper or inadequate instruction upon witness credibility implicates the defendant’s state (Art. I § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]
RESEARCH NOTES
See FORECITE BIBLIO 3.10, et al.
