SERIES 300 EVIDENCE
F 319 PRIOR STATEMENTS OF UNAVAILABLE WITNESS
TABLE OF CONTENTS
F 319 Inst 1 (a-f) Specification Of Preponderance Standard For Foundational Fact
F 319 Inst 2 Prior Statements of Unavailable Witness: No Duty To Decide; Truth And Accuracy Should Be Considered
Return to Series 300 Table of Contents.
F 319 Inst 1 (a-f) Specification Of Preponderance Standard For Preliminary Fact
Alternative a:
*Modify CC 319, paragraph 2, sentence 1, as follows [added language is underlined; deleted language is stricken]:
If you conclude find it more likely than not that __________ <insert name of unavailable witness> made (that/those) other statement[s], you may only consider (it/them) in a limited way.
Alternative b [add at end of paragraph 2]:
Unless you find it more likely than not that ______________ <name of witness> made (that/those) statement[s] you must disregard them for all purposes.
Alternative c [add at end of paragraph 2]:
The prosecution has the burden of proving by a preponderance of the evidence the existence of the preliminary fact that __________<insert name of unavailable witness> made (that/those) other statement[s]. If, and only if, the prosecution meets this burden, you may consider the evidence that __________ <insert name of unavailable witness> made (that/those) other statement[s] in your deliberations. However, you may not rely upon this evidence, in whole or part, to convict the defendant unless the prosecution has proven the existence of the preliminary fact beyond a reasonable doubt.
Alternative d [Evidence offered by prosecution: CALCRIM 224 and 376 FormatC Essential Fact Must Be Proved Beyond A Reasonable Doubt]:
The prosecution has presented evidence regarding [an] alleged statement[s] of _______________ <name of unavailable witness>.
You must not consider this evidence for any purpose unless the prosecution has proved the following preliminary fact by a preponderance of the evidence:
That _______________ <name of unavailable witness> made (that/those) statement[s].
A fact is proved by a preponderance of the evidence if you find that it is more likely than not that the fact is true. This is a lesser burden of proof than proof beyond a reasonable doubt.
Unless [all of you] find that this preliminary fact to exist, you must disregard, for all purposes, the alleged statement[s] of _______________ <name of unavailable witness> .
If you [all] find the above preliminary fact to exist, then you [may] [must] consider the alleged statement[s] of _______________ <name of unavailable witness> in your deliberations.
However, you must not rely on [__________’s <name of unavailable witness> alleged statements] to find an essential fact or element of the charged offense[s] unless the prosecution has proved beyond a reasonable doubt that _______________ <name of unavailable witness> made the statement[s].
Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.
Alternative e [Evidence offered by the defense]:
The defendant has presented evidence regarding [an] alleged statement[s] of _______________ <name of unavailable witness>. Before you may consider this evidence you must first make a preliminary finding that:
It more likely than not that _______________ <name of unavailable witness> made (that/those) statement[s].
Any juror who has made this finding, [may] [must] consider the statement[s] of _______________ <name of unavailable witness> in evaluating whether the prosecution has met its burden of proving the defendant guilty beyond a reasonable doubt.
The preliminary finding requirement applies only to the evidence regarding the statement[s] of _______________ <name of unavailable witness>. All other evidence is to be fully considered without any preliminary fact findings.
The preliminary fact finding discussed in this instruction does not alter or lessen the presumption of innocence or the prosecution’s burden to prove the defendant guilty beyond a reasonable doubt.
Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.
Alternative f [Preliminary Fact: CALCRIM 375, 1191, 1400 & 376 Format—Not alone sufficient to convict]:
The prosecution contends that _______________ <name of unavailable witness> made [certain] [an] out-of-court statement[s] [the following out-of-court statement[s] ________________________.]
You must not consider any evidence for such alleged statement[s] for any purpose unless the prosecution has proved the following preliminary fact[s] by a preponderance of the evidence:
That _______________ <name of witness> made (the/those) statement[s].
[Insert other material preliminary facts.]
A fact is proved by a preponderance of the evidence if you find that it is more likely than not that the fact is true. This is a lesser burden of proof than proof beyond a reasonable doubt.
Unless [all of you] find that [all of the above] [this] preliminary fact[s] to exist, you must [disregard _______________’s <name of witness> alleged statement[s], for all purposes] [not consider the alleged statement[s] against the defendant].
If you [all] find the [all of] the above preliminary fact[s] to exist then you may consider the alleged statement[s] [for the limited purpose of _____________] in your deliberations. However, such evidence is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of _________ <insert charged offense[s]>
Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.
Points and Authorities
Making Of The Statement As A Preliminary Fact.—Since the relevance of the evidence depends on a finding that the witness made the statement, that finding is a preliminary fact under EC 403.
Propriety Of Preliminary Fact Instruction.—Pursuant to EC 403, the proponent of evidence must establish a sufficient foundation in four areas: (1) relevancy; (2) the personal knowledge of the witness; (3) the authenticity of a writing; and (4) whether or not a hearsay statement was actually made by the declarant alleged to have made it. (Compare EC 405.) If the judge finds that the jury could reasonably find the preliminary fact, then it must submit the question to the jury for actual determination. (See People v. Kronemyer (1987) 189 CA3d 314, 351]; People v. Humphries (1986) 185 CA3d 1315, 1334; People v. Simon (1986) 184 CA3d 125, 129-32.) Compare EC 405 relating to other preliminary facts such as competence where the judge’s determination is final. (Kronemyer, 189 CA3d at 352.)
Accordingly, when a preliminary factual determination is necessary to establish the relevance of the offered evidence, the defendant has the right, under EC 403(c)(1), to an instruction informing the jury of the requirement that they first determine the preliminary facts before considering the evidence for the stated purpose. In this regard, EC 403(c) provides:
“If the court admits the proffered evidence under this section, the court: (1) May, and on request shall, instruct the jury to determine whether the preliminary fact exists and to disregard the proffered evidence unless the jury finds that the preliminary fact does exist.”
Examples of situations where EC 403 has been held to apply and require instruction include the following: (1) character evidence of prior criminal conduct when the defendant denies commission of the prior act or claims that the act was committed with a different motive than that asserted by the prosecutor (People v. Simon (1986) 184 CA3d 125, 129-32); (2) the sufficiency of the showing of the existence of a conspiracy to allow for the admission of hearsay statements pursuant to EC 1223 (People v. Saling (1972) 7 C3d 844, 854); (3) the sufficiency of the showing that an experiment was conducted under circumstances substantially similar to the facts of the case at bar (People v. Bonin (1989) 47 C3d 808, 847); (4) whether a party has sufficient knowledge of the content of a hearsay statement to allow for application of the adoptive admission exception to the hearsay rule (People v. Pic’ l (1981) 114 CA3d 824, 859); (5) the sufficiency of the showing of the identity of a hearsay declarant (People v. Collins (1975) 44 CA3d 617, 628); (6) evidentiary chain of custody to authenticate physical evidence (e.g., People v. Mattison (1971) 4 C3d 177, 187); (7) ethnic/racial background of the perpetrator to allow DNA typing based on ethnic/racial data base (People v. Pizarro (1992) 10 CA4th 57, 94); and (8) whether a prior conviction is sufficiently relevant to credibility (People v. Keating (1981) 118 CA3d 172, 180); see also Comment—Assembly Committee on Judiciary, 29B West’s Ann. (1966 Ed.) EC 403, pp. 266-71.)
Preliminary Fact Must Be Proven Beyond A Reasonable Doubt Vis A Vis Essential Facts And Elements of the Offense—The final paragraph, regarding proof of essential facts, is adapted from CALCRIM 224 and 376. (See also FORECITE F 103.2 Inst 1; FORECITE CG 2.2; cf., People v. Davis (2005) 36 C4th 510, 539-41 [supreme court expressed no opinion about whether preliminary facts for adoptive admissions must be proven beyond a reasonable doubt].)
Whether the Jurors “Must” Consider the Evidence After Finding the Preliminary Fact.—See F 105.2 Inst 1.
Propriety of Juror Unanimity As To Preliminary Facts.—See F 3500.3.1.
Obligation Of Defendant To Prove Preliminary Fact Does Not Alter Prosecution’s Burden Of Proof.—See CAVEAT 3 below; see also generally FORECITE F 100.1 Inst 1.
Not Alone Sufficient To Convict.—When the preliminary fact relates to evidence which is not alone sufficient to convict the preliminary fact instruction should assure that the jurors understand this. (See e.g., Alternative f, above.) See FORECITE F 370 Inst 8.
Identification Of Parties.—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 5.7 [Preliminary Facts]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
Unanimity Use Note.—If unanimity is not required, then the instructions should be directed toward individual jurors. Those finding preliminary fact can consider the evidence, those not finding it cannot. (See generally F 100.7 Inst 2.)
CAVEAT 1: Benefits And Risks Of (EC 403) Preliminary Fact Instruction.—EC 403 can be a vital tool for creative trial counsel. In this regard, every piece of evidence must be relevant before it can be admitted. Thus, pursuant to EC 403, the defendant should be able to obtain an instruction, in most cases, which will compel the jury to carefully scrutinize the preliminary facts attendant to consideration of particular pieces of evidence.
However, the decision of whether to request a EC 403 instruction necessarily involves strategic considerations. There may be a concern that the distinction between the jury’s role in determining the preliminary fact and in finding proof beyond a reasonable doubt will be too confusing for the jury thus risking dilution of the reasonable doubt standard. (See CAVEAT 2, below.) For example, in some cases the determination of the preliminary fact may be closely aligned with the determination of guilt. (E.g., when the defense is lack of chain of custody, then both admissibility of the evidence and guilt or innocence will rest on a determination of the preliminary fact.) In such a case, it will be essential for the jury to understand that the preliminary fact must be proven first by a preponderance of the evidence (to make it admissible) and then beyond a reasonable doubt to allow it to be utilized to convict the defendant.
On the other hand, an EC 403 instruction offers several strategic advantages. First, there is the psychological advantage of being able to argue to the jury that it must not even consider certain evidence if the EC 403 burden is not met.
Second, the EC 403 instruction sets up two evidentiary hurdles for the prosecution to overcome. Thus, a borderline juror would not be backed into a corner where only a yes or no answer could be given. Instead, the juror could say “yes” I think they cleared the preponderance hurdle, but “no” they didn’t clear the reasonable doubt hurdle.
Third, in the same vein as above, the existence of two different evidentiary standards could accentuate the strictness of the reasonable doubt standard in comparison with the preponderance standard.
In sum, an EC 403 instruction has many potential benefits. However, it should only be requested after careful thought and preparation well before trial.
CAVEAT 2: Burden Of Proof.—Under EC 403 the jurors must disregard evidence whose admissibility is predicated on a preliminary fact unless the jurors first find a preliminary fact to have been proved by a preponderance of the evidence. (People v. Simon (1986) 184 CA3d 125, 134; see also People v. Marshall (1996) 13 C4th 799, 832-33; People v. McClellan (1969) 71 C2d 793, 804.)
On the other hand, in a criminal trial the Due Process and Trial By Jury Clauses of the California (Art 1., Section 7, 15 & 16) and federal (6th and 14th Amendments) require that the defendant be proven guilty beyond a reasonable doubt. (See Sullivan v. Louisiana (1993) 508 US 275, 281-82 [124 LEd2d 182; 113 SCt 2078]; In re Winship (1970) 397 US 358 [90 SCt 1068; 25 LEd2d 368]; People v. Figueroa (1986) 41 C3d 714.) Hence, to avoid implicating the above constitutional principles in a preliminary fact situation, the jury should be clearly instructed upon the distinction between the determination of whether the evidence is admissible and the actual use of that evidence to convict the defendant. (Conceptually, this distinction is analogous to a court trial where the judge determines both admissibility and guilt.)
Moreover, the reasonable doubt standard applies to “each fact which is essential to complete a chain of circumstances that will establish the defendant’s guilt.” (See In re Winship, 397 US 358; People v. Watson (1956) 46 C2d 818, 831; see also CALCRIM 224 & CALCRIM 376; FORECITE F 103.2 Inst 1.)
In sum, care should be taken to avoid requiring the defendant to satisfy a preponderance standard as to any evidence that could raise a reasonable doubt of guilt.
CAVEAT 3: Preliminary Fact Instruction As To Evidence Offered By The Defendant.—Because the defendant normally has no obligation to prove anything (see FORECITE F 100.1 Inst 1), a preliminary fact instruction per EC 403 as to defense evidence may be confusing. If such an instruction is required by the judge or desired by the defense, one such as “Alternative f” above should be considered as a way to clarify that any duty of the defendant to prove a preliminary fact does not alter the prosecution’s burden of proving guilt beyond a reasonable doubt.
CRAWFORD ALERT: As to the admissibility of testimonial hearsay, see Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354] [testimonial hearsay inadmissible where declarant is unavailable and never confronted by defendant]; see also FORECITE PG VII(C)(43) [Crawford Update].)
CALJIC NOTE: See FORECITE F 2.001a.
F 319 Inst 2 Prior Statements of Unavailable Witness: No Duty To Decide; Truth And Accuracy Should Be Considered
*Modify CC 319, paragraph 2, sentence 2, as follows [added language is underlined; deleted language is stricken]:
You may only use (it/them) in deciding whether to believe evaluating the truth and accuracy of the testimony of __________ <insert name of unavailable witness> that was (read/played) here at trial.
Points and Authorities
See FORECITE F 105.3.10 Inst 1.
