SERIES 300 EVIDENCE
F 373 Other Perpetrator
TABLE OF CONTENTS
F 373 Inst 1 Unjoined Perpetrators: Evidence Of Third Party Guilt May Leave Jurors With A Reasonable Doubt As To Defendant‘s Guilt
F 373 Inst 2 (a-c) Jurors May Still Consider Third Party Guilt
F 373 Inst 3 (a & b) Unjoined Perpetrators: Defendant Need Not Prove Third Party Guilt To Leave Jurors With Reasonable Doubt As To Defendant‘s Guilt
F 373 Inst 4 Lack Of Prosecution As Relevant To Credibility
F 373 Inst 5 Modification Where Case Involves Both Prosecuted And Non-Prosecuted Participants
F 373 Inst 6 Unjoined Accomplice Testifying Under Grant Of Immunity Or Plea Bargain
F 373 Note 1 Non-Prosecuted Participant: Accomplice Distinguished
F 373 Note 2 Instruction Improper When Witness Testifies For Prosecution Or Defense
Return to Series 300 Table of Contents.
F 373 Inst 1 Unjoined Perpetrators: Evidence Of Third Party Guilt May Leave Jurors With A Reasonable Doubt As To Defendant‘s Guilt
*Add to CC 373:
You are here to determine whether or not the guilt of the accused has been proven from the evidence in the case. You are not called upon to return a verdict as to whether the guilt of any other person or persons has been proven. So, if the evidence in the case convinces you beyond a reasonable doubt of the guilt of the accused, you should so find, even though you may believe one or more other persons also are guilty. But if a reasonable doubt remains in your minds after impartial consideration of all the evidence in the case, including any evidence of the guilt of any other person or persons, it is your duty to find the accused not guilty.
Points and Authorities
Relating Third Party Guilt Evidence To Presumption Of Innocence.—In People v. Farmer (1989) 47 C3d 888, 918-19, the court noted that CJ 2.11.5 (now CC 373) “would be more informative and might deter speculation if it told the jury explicitly that its sole duty is to decide whether this defendant is guilty and that there are many reasons why someone who also appears to have been involved might not be a co-defendant in this particular trial.”
In making this observation the court referred to Devitt, et al., Fed. Jury Prac. & Inst. (3d Ed. 1977) §1106.
In response to Farmer, CALJIC modified CJ 2.11.5 by utilizing the language contained in the Farmer opinion. (CJ 2.11.5 (1989 Revision).) However, the federal form instruction in Devitt, et al. is more complete and informative and, given Farmer’s reference to that instruction, it should be given instead of the current CALCRIM instruction. (See also, Rucker & Overland, California Criminal Forms & Instructions §41:33.)
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 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge]
FORECITE CG 4.5 [Right To Present Evidence And Fair Opportunity To Defend]
FORECITE CG 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
NOTES
Instruction Improper When A Non-prosecuted Participant Testifies.—See FORECITE F 373 Inst 4.
CALJIC NOTE: See FORECITE F 2.11.5a.
F 373 Inst 2 (a-c) Jurors May Still Consider Third Party Guilt
*Add to CC 373:
Alternative a:
This does not preclude you from considering any evidence that the uncharged person[s], rather than the defendant, committed the crime charged. If, in light of such evidence, as well as the other evidence presented, you have a reasonable doubt whether the defendant committed the crime, you must give the defendant the benefit of that doubt and find [him] [her] not guilty.
Alternative b:
However, in fulfilling this duty you are not precluded from considering evidence that a person not on trial is the guilty party. To the contrary, if such evidence leaves you with a reasonable doubt as to the defendant‘s guilt you must give [him] [her] the benefit of that doubt and return a verdict of not guilty.
Alternative c:
This instruction does not prevent you from considering evidence that [someone else] [______________ <name of third party>] was the perpetrator. It merely means that you must not speculate about whether someone else might or might not be prosecuted.
Points and Authorities:
Relation Of Third Party Guilt Defense Theory To Prosecution‘s Burden Of Proof.—The jurors should be instructed that they may consider an uncharged perpetrator‘s guilt in determining whether the prosecution has proved the defendant guilty beyond a reasonable doubt. (See People v. Edelbacher (1989) 47 C3d 983, 1017; see also People v. Farmer (1989) 47 C3d 888, 918-19; CALCRIM CC 373, Authority.) Otherwise, CC 373 may mislead the jury when the defendant relies on a theory of third party guilt.
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 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge]
FORECITE CG 4.5 [Right To Present Evidence And Fair Opportunity To Defend]
FORECITE CG 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 2.11.5b.
F 373 Inst 3 (a & b) Unjoined Perpetrators: Defendant Need Not Prove Third Party Guilt To Leave Jurors With Reasonable Doubt As To Defendant‘s Guilt
*Add at end of CC 373 CC 3400 Format]:
You may, however, consider evidence that someone other than the defendant committed the offense. Your evaluation of such evidence must be governed by the presumption of innocence. This means that the defendant does not need to prove that another person committed the offense. If the evidence leaves you with a reasonable doubt that the defendant committed the offense, you must vote not guilty.
Points and Authorities
Right To Defense Theory Instruction.—The defendant has the right to a pinpoint defense theory instruction which relates that theory to the prosecution‘s burden of proof. (See FORECITE F 315.1.2 Inst 2.)
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 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge]
FORECITE CG 4.5 [Right To Present Evidence And Fair Opportunity To Defend]
FORECITE CG 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 373 Inst 4 Lack Of Prosecution As Relevant To Credibility
*Add to CC 373:
The fact that _______________ <name of non-prosecuted person> was not prosecuted is a factor to consider in evaluating (his/her) testimony.
Points and Authorities
Right To Instruction.—CALCRIM 373 should be omitted or clarified when a non-prosecuted (unjoined) participant testifies because the jury is entitled to consider the lack of prosecution in evaluating the credibility of the witness. (People v. Williams (1997) 16 C4th 153, 226-27; see also People v. Jones (2003) 30 C4th 1084, 1113; People v. Price (1991) 1 C4th 324, 446; People v. Sully (1991) 53 C3d 1195, 1218; People v. Carrera (1989) 49 C3d 291, 312, fn 10; but see People v. Fonseca (2003) 105 CA4th 543 [court did not err in giving CJ 2.11.5 (co-perpetrator not charged) when co-perpetrator testified; in any event, “in every case where the jury receives all otherwise appropriate general instructions regarding witness credibility, there can be no prejudice from jury instruction pursuant to CJ No. 2.11.5”].)
See also FORECITE F 315.1.2 Inst 2.
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 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge]
FORECITE CG 4.5 [Right To Present Evidence And Fair Opportunity To Defend]
FORECITE CG 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 2.11.5 n1.
F 373 Inst 5 Modification Where Case Involves Both Prosecuted And Non-Prosecuted Participants
*Add to CC 373:
This instruction only applies to _______________ <name of prosecuted witness>.
Points and Authorities
Right To Instruction.—If the case involves both prosecuted and non-prosecuted participants, then CALCRIM 373 must be modified to be applicable only to those witnesses who were fully prosecuted. (People v. Williams (1997) 16 C4th 153, 226-27.)
See also FORECITE F 315.1.2 Inst 2.
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 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge]
FORECITE CG 4.5 [Right To Present Evidence And Fair Opportunity To Defend]
FORECITE CG 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 2.11.5 n3.
F 373 Inst 6 Unjoined Accomplice Testifying Under Grant Of Immunity Or Plea Bargain
*Add to CC 373:
The fact that _______________ <name of immunized witness> was granted immunity from prosecution is a factor to consider in evaluating (his/her) testimony.
Points and Authorities
Right To Instruction.—CALCRIM 373 should be clarified or omitted where an unjoined accomplice testified under a grant of immunity or plea bargain. (People v. Cain (1995) 10 C4th 1, 34-35; see also People v. Lawley (2002) 27 C4th 102, 162-63.) However, the failure to do so is not prejudicial where the jurors were given the full panoply of witness credibility and accomplice instructions. (Cain, supra; Lawley, supra.)
See also FORECITE F 320 Inst 1; F 315.1.2 Inst 2.
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 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge]
FORECITE CG 4.5 [Right To Present Evidence And Fair Opportunity To Defend]
FORECITE CG 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 2.11.5 n5.
F 373 Note 1 Non-Prosecuted Participant: Accomplice Distinguished
The question of whether a witness “may have been involved in the crime,” for the purposes of CC 373, is a separate issue from the question of whether the witness was an accomplice. (People v. Williams (1997) 16 C4th 153, 226.)
CALJIC NOTE: See FORECITE F 2.11.5 n2.
F 373 Note 2 Instruction Improper When Witness Testifies For Prosecution Or Defense
An unjoined perpetrator’s instruction (CC 373/CJ 2.11.5) should not be given where the witness testifies for either the prosecution or defense. (People v. Cornwell (2005) 35 C4th 50, 80.)
