SERIES 300 EVIDENCE
F 335 Accomplice Testimony: No Dispute Whether Witness Is Accomplice
TABLE OF CONTENTS
F 335 Inst 1 Precluding Jury From Arbitrarily Disregarding Accomplice Testimony Creates An Improper Presumption Of Truthfulness
F 335 Inst 2 “Tends To Incriminate” Language As Improper Comment On The Evidence
F 335 Inst 3 No Reference To The Term “Accomplice”
F 335 Inst 4 Accomplice Corroboration: Jury Must Be Satisfied That Accomplice Is Telling The Truth
F 335 NOTES
F 335 Note 1 Accomplice As Matter Of Law: Improper Implication Of Conspiracy
F 335 Note 2 Accomplice As A Matter Of Law: Test For Determining
F 335 Note 3 Accomplice As A Matter Of Law: Directed Verdict That Defendant Is Perpetrator
F 335 Note 4 Accomplice As A Matter Of Law: CC 335 Must Be Given
Return to Series 300 Table of Contents.
F 335 Inst 1 Precluding Jury From Arbitrarily Disregarding Accomplice Testimony Creates An Improper Presumption Of Truthfulness
*Delete CC 335, paragraph 5, sentence 2:
You may not, however, arbitrarily disregard it.
Points and Authorities
See FORECITE F 302 Inst 2.
F 335 Inst 2 “Tends To Incriminate“ Language As Improper Comment On The Evidence
*Modify CC 335, paragraph 5, sentence 1 as follows [added language is underlined; deleted language is stricken]:
Any (statement/ [or] testimony) of an accomplice that tends to is relied upon to incriminate the defendant should be viewed with caution.
Points and Authorities
See FORECITE F 105.2 Inst 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 5.4 [Argumentative, Improper Comment, Undue Emphasis Of Evidence]
FORECITE CG 5.13 [Due Process Underpinnings Of Accomplice Cautionary Instruction]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 335 Inst 3 No Reference To The Term “Accomplice“
*Modify CC 335 as follows:
*Modify CC 335 as follows [added language is underlined; deleted language is stricken]:
If the crime[s] of ________ <insert charged crime[s]> (was/were) committed, then ________ <insert name[s] of witness[es]> (was/were) [an] accomplice[s] to (that/those) crime[s].
You may not convict the defendant of ________ <insert crime[s]> based on the (statement/ [or] testimony) of an accomplice ________ <insert name of accomplice> alone. You may use the (statement]/ [or] testimony) of an accomplice ________ <insert name of accomplice> to convict the defendant only if:
1. The accomplice’s _______‘s <accomplice’s name> (statement/ [or] testimony) is supported by other evidence that you believe;
2. That supporting evidence is independent of the accomplice’s ________‘s <accomplice’s name> (statement/ [or] testimony);
AND
3. That supporting evidence tends to connect the defendant to the commission of the crime[s].
Supporting evidence, however, may be slight. It does not need to be enough, by itself, to prove that the defendant is guilty of the charged crime, and it does not need to support every fact (mentioned by the accomplice ________‘s <accomplice’s name> in the statement/ [or] about which the witness testified). On the other hand, it is not enough if the supporting evidence merely shows that a crime was committed or the circumstances of its commission. The supporting evidence must tend to connect the defendant to the commission of the crime.
[The evidence needed to support the (statement/ [or] testimony) of one accomplice ________‘s <accomplice‘s name> cannot be provided by the (statement/ [or] testimony) of another accomplice ________‘s <name of other accomplice> .]
Any (statement/ [or] testimony) of an accomplice ________‘s <accomplice’s name> that tends to incriminate the defendant should be viewed with caution. You may not, however, arbitrarily disregard it. You should give that (statement/ [or] testimony) the weight you think it deserves after examining it with care and caution and in the light of all the other evidence.
Points and Authorities
By informing or suggesting to the jury that a co-participant in the crime is an “accomplice“ as a matter of law (CC 335), there is a danger that the jury may infer the guilt of the defendant from the guilt of the “accomplice.“ (See, e.g., FORECITE F 334 Inst 2; F 335 Note 1].) After all, if there is an accomplice under the definitions set forth in CCC 334, there must also be a perpetrator. When the defendant is the only other possible choice as the perpetrator, CC 355 acts to direct a verdict against the perpetrator. (See generally People v. Figueroa (1986) 41 C3d 714; see also People v. Hill (1967) 66 C2d 536, 555 [where a co-defendant has made a judicial confession, an instruction that as a matter of law such co-defendant is an accomplice of the other defendant may well be construed by the jurors as imputing the co-defendant’s foregone guilt to the other defendant]; compare People v. Heishman (1988) 45 C3d 147, 162-63 [CJ 3.16 (now CC 335) does not preclude jury from finding that accomplice, and not defendant, was the killer].)
Moreover, by utilizing the term “accomplice,“ the court is making a comment on the evidence which the jury may take as a suggestion that the court believes the defendant to be guilty. “The trial court may not, in the guise of privilege, withdraw material evidence from the jury’s consideration, distort the record, expressly or impliedly direct a verdict, or otherwise usurp the jury’s ultimate fact-finding power. [Citations.]“ (People v. Rodriguez (1986) 42 C3d 730, 766.) And, to the extent that proper judicial comment is permitted, the jury should be expressly informed that it is not bound to accept the judge’s interpretation and may disregard any or all of the comments with which the jurors do not agree. (See generally People v. Lucero (1988) 44 C3d 1006, 1021 [improper judicial comment on evidence]; see also FORECITE F 100.1 Inst 5.) “It is improper … for the court to single out a particular witness in an instruction, since by doing so, the court charge becomes a comment on how the evidence should be considered, rather than a general instruction on a defense theory. [Citations.]“ (People v. Harris (1989) 47 C3d 1047, 1099.) Moreover, a judge’s comment on the evidence may also violate the state and federal constitutional right to due process and fair trial by jury. (See U.S. v. Fuller (4th Cir. 1998) 162 F3d 256.)
Hence, the person should not be referenced as an accomplice as a matter of law, but rather the accomplice instructions should simply refer to the person by name rather than as an “accomplice.“
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 5.4 [Argumentative, Improper Comment, Undue Emphasis Of Evidence]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
STRATEGY NOTE: This argument was successfully used to modify the standard CALJIC instructions to replace the word “accomplice“ with the actual name of the testifying accomplice. (See FORECITE At Work: Robert C. Fracchia.)
USE NOTE: In cases involving an accomplice as a matter of law and a possible accomplice depending on the jury’s determination, separate instructions may have to be drafted to avoid informing the jury that there is an accomplice as a matter of law.
CALJIC NOTE: See FORECITE F 3.16b.
F 335 Inst 4 Accomplice Corroboration: Jury Must Be Satisfied That Accomplice Is Telling The Truth
*Modify Factor 3 as follows [added language is underlined]:
3. That supporting evidence tends to connect the defendant to the commission of the crime[s] in such a way that you are reasonably satisfied the accomplice is telling the truth.
Points and Authorities
See FORECITE F 334 Inst 7.
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 5.13 [Due Process Underpinnings Of Accomplice Cautionary Instruction]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 335 NOTES
F 335 Note 1 Accomplice As Matter Of Law: Improper Implication Of Conspiracy
In a conspiracy prosecution the designation of the alleged co-conspirators as accomplices as a matter of law may imply that a conspiracy existed. While 5th and 6th Amendment challenges to CJ 3.16 (now CC 335) were rejected in People v. Hardy (1992) 2 C4th 86, 152, tactical considerations might warrant requesting cautionary amplification of CC 335 or possibly omission of the instruction altogether. Moreover, counsel should consider whether to preserve the constitutional issue for federal review. (See FORECITE PG VII.)
[Research Note: See FORECITE BIBLIO 3.10, et al.]
CALJIC NOTE: See FORECITE F 3.16 n1.
F 335 Note 2 Accomplice As A Matter Of Law: Test For Determining
“Whether a person is an accomplice is a question of fact for the jury unless there is no dispute as to either the facts or the inferences to be drawn therefrom.“ (People v. Stankewitz (1990) 51 C3d 72, 90; see also, People v. McLain (1988) 46 C3d 97, 106.) Therefore, the fact that a witness has been charged or held to answer for the same crimes as the defendant and then granted immunity does not necessarily establish that the witness is an accomplice. (Stankewitz, 51 C3d at 90; see also, People v. Garrison (1989) 47 C3d 746, 772.)
Nor is an individual’s presence at the scene of a crime or failure to prevent its commission sufficient to establish that the person is an accomplice as a matter of law. (Stankewitz, 51 C3d at 90.)
[Research Note: See FORECITE BIBLIO 3.10, et al.]
CALJIC NOTE: See FORECITE F 3.16 n2.
F 335 Note 3 Accomplice As A Matter Of Law: Directed Verdict That Defendant Is Perpetrator
By informing the jury that a particular witness is an “accomplice as a matter of law,“ CC 335 effectively tells the jury that there was at least one other person who was guilty of the charged crime. After all, if there is an accomplice, there must also be a perpetrator. Accordingly, when the defendant is the only other person who could have been the perpetrator, CC 335 acts to inform the jury that the defendant was the perpetrator and thus directs a verdict against the defendant. (See People v. Hill (1967) 66 C2d 536, 555 [“ … where co-defendant has made a judicial confession as to the crimes charged, an instruction that as a matter of law such co-defendant is an accomplice of other defendants might well be construed by the jurors as imputing the confessing defendant’s foregone guilt to the other defendant’s“ ].) In this manner, the instruction 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 People v. Figueroa (1986) 41 C3d 714.)
(See FORECITE F 335 Inst 3.)
CALJIC NOTE: See FORECITE F 3.16 n3.
F 335 Note 4 Accomplice As A Matter Of Law: CC 335 Must Be Given
It is well established that CJ 3.16 (now CC 355) must be given sua sponte when a witness is an accomplice as a matter of law. (People v. Robinson (1964) 61 C2d 373, 394-96; People v. Dailey (1960) 179 CA2d 482, 485-86.) [See Brief Bank # B-845for briefing on this issue.]
CAVEAT: But see FORECITE F 105.1 Inst 9.
CALJIC NOTE: See FORECITE F 3.16 n4.
