SERIES 100 PRETRIAL INSTRUCTIONS
F 105 NOTES
TABLE OF CONTENTS
F 105 Note 1 Witness Credibility: Irrelevant Factors Should Be Deleted
F 105 Note 2 Bias Of Police Witness Re: Forfeiture And Possession For Sale
F 105 Note 3 Witness Credibility: Pretrial Silence as to Exculpatory Evidence—Foundational Facts
F 105 Note 4 Unavailability of Witness
F 105 Note 5 Witness Bias: Test For Violation Of Sixth Amendment Right To Confrontation
F 105 Note 6 Witness Credibility: Coerced Testimony Of Third Party
F 105 Note 7 Witness Credibility In Sexual Assault Cases: The Defendant Is Entitled To Attack The Credibility Of The Complainant With All Relevant Impeaching Evidence
F 105 Note 8 Witness Credibility In Sexual Assault Cases: Properly Applied, The Fresh Complaint Rule Allows For The Admission Of A Very Limited Class Of Evidence
F 105 Note 9 Witness Credibility: Showing Of Reliability Required For Admission Of Prior Threat Of Injury Per EC 1370
F 105 Note 10 Witness Competency: Must Be Challenged At Trial; Burden Of Proof
F 105 Note 11 Witness Competency: Disabilities
F 105 Note 12 Witness Disability: Leading Questions
F 105 Note 13 Character For Truthfulness Or Untruthfulness Not Applicable to Mental Disorder Evidence
F 105 Note 14 Failure To Give “Witness Willfully False” Instruction As Reversible Error
F 105 Note 15 Witness Credibility: Jury Consideration Of The Fact Defendant Attended The Trial
F 105 Note 16 Witness Character For Honesty Or Truthfulness
Return to Series 100 Table of Contents.
F 105 Note 1 Witness Credibility: Irrelevant Factors Should Be Deleted
Not all factors listed in CC 105 may apply to every case. The irrelevant factors should be removed form the instruction. “[H]owever laudable the court’s motive, ‘It is error to give an instruction which correctly states a principle of law which has no application to the facts of the case.’ [Citation.]” (People v. Rollo (1977) 20 C3d 109, 122-123; see also People v. Jackson (1954) 42 C2d 540, 546-547; see also FORECITE PG X(E)(16).) If irrelevant factors are left in the instruction the jurors may speculate as to whether available evidence concerning witness credibility was omitted at trial. (See Levenson & Ricciardulli, California Criminal Jury Instruction Handbook (West 2012-2013), § 2:2, Author’s Notes, p. 34.)
F 105 Note 2 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).)
RESEARCH NOTES: See Annotation, Admissibility, in criminal prosecution, of expert opinion allegedly stating whether drugs were possessed with intent to distributeC state cases, 83 ALR4th 629 and Later Case Service.
[Research Note: See FORECITE BIBLIO 2.20]
CALJIC NOTE: See FORECITE F 2.20 n2.
F 105 Note 3 Witness Credibility: Pretrial Silence As To Exculpatory Evidence—Foundational Facts
See FORECITE F 105.8 Inst 3.
F 105 Note 4 Unavailability Of Witness
See FORECITE F 317 Inst 1.
F 105 Note 5 Witness Bias: Test For Violation Of Sixth Amendment Right To Confrontation
“The test for a violation [of the 6th Amendment right of confrontation] is whether ‘a reasonable jury might have received a significantly different impression of the witness’s 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 (1997) 16 C4th 600, 623; cf., Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354] [recognizing importance of 6th Amendment right to confrontation].)
CALJIC NOTE: See FORECITE F 2.20 n6.
F 105 Note 6 Witness Credibility: Coerced Testimony Of Third Party
People v. Badgett (1995) 10 C4th 330 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 [Emphasis added.]; see also People v. Lee (2002) 95 CA4th 772.)
See also FORECITE F 105.2 Inst 5.
CALJIC NOTE: See FORECITE F 2.20 n9.
F 105 Note 7 Witness Credibility In Sexual Assault Cases: The Defendant Is Entitled To Attack The Credibility Of The Complainant With All Relevant Impeaching Evidence
See Article Bank # A-95 for an article on this issue, “Evidentiary Issues Frequently Arising In Sex Cases” by Dallas Sacher.
CALJIC NOTE: See FORECITE F 2.20 n10.
F 105 Note 8 Witness Credibility In Sexual Assault Cases: Properly Applied, The Fresh Complaint Rule Allows For The Admission Of A Very Limited Class Of Evidence
See Article Bank # A-95 for an article on this issue, “Evidentiary Issues Frequently Arising In Sex Cases” by Dallas Sacher.
CALJIC NOTE: See FORECITE F 2.20 n11.
F 105 Note 9 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 FORECITE PG VII(C)(43) [Crawford Update].)
(See People v. Kons (2003) 108 CA4th 514 [133 CR2d 520].)
CALJIC NOTE: See FORECITE F 2.20 n12.
F 105 Note 10 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 (1993) 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.)
CALJIC NOTE: See FORECITE F 2.20 n13.
F 105 Note 11 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.)
CALJIC NOTE: See FORECITE F 2.20 n14.
F 105 Note 12 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 (1948) 86 CA2d 445, 456 [it is “proper to ask leading questions when they are designed more quickly to reach the testimony…” ].)
CALJIC NOTE: See FORECITE F 2.20 n15.
F 105 Note 13 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’s mental impairment or disorder. (Ibid.)
CALJIC NOTE: See FORECITE F 2.20 n17.
F 105 Note 14 Failure To Give “Witness Willfully False” Instruction As Reversible Error
In People v. Reyes UNPUBLISHED (B120694), the Court of Appeal held that the failure to give CJ 2.21.2 (witness willfully false) was prejudicial error under the Watson standard (People v. Watson (1956) 46 C2d 818, 836). [See Opinion Bank #O-254 and Brief Bank #B-826 for the unpublished opinion in Reyes and briefing on this issue.]
Updated authority for this: People v. Murillo (1996) 47 CA 4th 1104, 1107 [We accept for purposes of this appeal respondent’s concession that 2.21.2 must be given if there is any evidence in the record upon which it could be based; instruction was properly requested; omission was error].
CALJIC NOTE: See FORECITE F 2.21.2 n2.
F 105 Note 15 Witness Credibility: Jury Consideration Of The Fact Defendant Attended The Trial
Portuondo v. Agard (2000) 529 US 61 [146 LEd2d 47; 120 SCt 1119] held that it is not unconstitutional for a prosecutor to call the jury’s attention to the fact that a testifying defendant, thanks to his presence throughout the trial, had the opportunity to tailor his testimony to harmonize with that of other witnesses.
STRATEGY NOTES: Opening The Door For Consistent Statements. In some cases such an argument may open the door to admission of prior consistent statements which the defendant may have made before hearing the testimony of the witnesses at trial.
Defense Argument As To Prosecution Witness. The argument of tailored testimony should also be available to the defense when a prosecution witness, such as the designated investigating officer, was present in court during the testimony of the other witnesses. (See Wardius v. Oregon (1973) 412 US 470 [37 LEd2d 82; 93 SCt 2208].)
Request That Defendant Be Allowed To Testify Before The Prosecution Witnesses. In those cases where the defendant is always intending to testify, the defense may wish to consider requesting permission from the trial court to take the defendant out of order as a witness–even to the extent that the defendant should be permitted to testify before the entire prosecution case, if need be. The order of proof is a matter which is in the court’s discretion. (See Imwinkelried, et al., Courtroom Criminal Evidence (LEXIS, 3rd ed. 1998) § 101, p. 13; FRE 611; EC 320.) By contrast, the defendant’s right to testify is constitutional and fundamental in nature. (See Rock v. Arkansas (1987) 483 US 44 [97 LEd2d 37; 107 SCt 2704].) The defendant shouldn’t have to choose between a significant impairment of that right (the trial court’s “comment on potential lying”) and foregoing that right altogether, if a less intrusive alternative can be found which would require neither. (Cf., Simmons v. United States (1968) 390 US 377, 394 [19 LEd2d 1247; 88 SCt 967] [discussing intolerability of certain types of “constitutional tensions”].) Taking the defendant out of order as a witness certainly seems to qualify.
F 105 Note 16 Witness Character For Honesty Or Truthfulness
Normally, if there is testimony as to a witness’s 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’s 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 (1991) 53 C3d 152, 213, fn 15.)
[Research Note: See FORECITE BIBLIO 2.20]
CALJIC NOTE: See FORECITE F 2.20 n1.
