SERIES 800 ASSAULTIVE AND BATTERY CRIMES
F 850 Testimony On Intimate Partner Battering And Its Effects: Credibility Of Complaining Witness (EC1107(a))
TABLE OF CONTENTS
F 850.1 Titles And Identification Of Parties
F 850.1 Inst 1 Testimony On Intimate Partner Battering And Its Effects: Credibility Of Complaining Witness (EC1107(a))—Title
F 850.1 Inst 2 Modification Of Prejudicial Title
F 850.1 Inst 3 Identification Of Prosecution And Defendant
F 850.2 Testimony on Intimate Partner Battering and Its Effects: Credibility of Complaining Witness (EC1107(a)): Additional Issues
F 850.2 Inst 1 Replace Cautionary Language Omitted By CALCRIM
F 850.2 Inst 2 Battered Person Syndrome Evidence Not A Basis For Determining Complaining Witness’ Credibility Or Believability
F 850.2 Inst 3 Deletion Of Double Negatives
F 850.2 Inst 4 Jurors Not Required To Decide
F 850 NOTES
F 850 Note 1 Testimony On Intimate Partner Battering And Its Effects: Credibility Of Complaining Witness: CALCRIM Cross-References And Research Notes
F 850 Note 2 Admissibility Of Expert Testimony Regarding Behavior Of Domestic Abuse Victims Based On Single Incident Of Abuse
Return to Series 800 Table of Contents.
F 850.1 Titles And Identification Of Parties
F 850.1 Inst 1 Testimony On Intimate Partner Battering And Its Effects: Credibility Of Complaining Witness (EC1107(a))—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 850.1 Inst 2 Modification Of Prejudicial Title
*Change CC 850, Title, to:
Cautionary Instruction: Intimate Partner Battering
Points and Authorities
Role Of Titles Under CALCRIM—See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
The Title For CALCRIM 850 Is Inaccurate And Prejudicial—CALCRIM 850 (formerly CJ 9.35.1) is supposed to be a cautionary instruction directed toward potentially misleading expert testimony. (See People v. Housley (1992) 6 CA4th 947, 958-59; see also People v. Brown (2004) 33 C4th 892, 902 [endorsing CJ 9.35.1 as written].) Hence, as with CJ 9.35.1, CC 850 should be labeled as a cautionary instruction.
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 5.1 [Highly Prejudicial Or Inflammatory Evidence]
FORECITE CG 6.5 [Instructions Must Be Balanced Between Defense and Prosecution]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 850.1 Inst 3 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 850.2 Testimony on Intimate Partner Battering and Its Effects: Credibility of Complaining Witness (EC1107(a)): Additional Issues
F 850.2 Inst 1 Replace Cautionary Language Omitted By CALCRIM
*Add to CC 850:
Battered person’s syndrome research is based upon an approach that is completely different from the approach which you must take to this case. The research on this subject begins with the assumption that physical abuse has occurred, and seeks to describe and explain common reactions of women to that experience. As distinguished from that research approach, you are to presume the defendant innocent. The People have the burden of proving guilt beyond a reasonable doubt.
[Source: CALJIC 9.35.1, 7th ed.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
The Cautionary Language Of CALJIC 9.35.1 Has Been Explicitly Endorsed By The California Supreme Court—The above language is included in CJ 9.35.1, which was explicitly endorsed as written in People v. Brown (2004) 33 C4th 892, 902.
Moreover, failure to give this cautionary language would violate the Due Process and Trial By Jury Clauses of the state (Art. I, §14 and §15) and federal (6th and 14th Amendments) constitutions. Evidence of Battered Person Syndrome and Child Sexual Abuse Accommodation Syndrome (CSAAS) is allowed, notwithstanding its questionable scientific reliability, with the proviso that a precise cautionary instruction be given. (See People v. Housley (1992) 6 CA4th 947, 958-59; see also People v. Bowker (1988) 203 CA3d 385, 391; see also People v. Najera (2008) 43 C4th 1132; cf., People v. Harlan (1990) 222 CA3d 439, 449-50 [better practice is to preclude expert from reciting facts of the case or similar facts].) Hence, by omitting an important component of the necessary cautionary language, CC 850 violates due process principles by improperly allowing jury consideration of prejudicial matters. (See McKinney v. Rees (9th Cir. 1993) 993 F2d 1378; see also People v. Harlan, 222 CA3d at 449-50 .)
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 5.1 [Highly Prejudicial Or Inflammatory Evidence]
FORECITE CG 6.5 [Instructions Must Be Balanced Between Defense and Prosecution]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 850.2 Inst 2 Battered Person Syndrome Evidence Not A Basis For Determining Complaining Witness’ Credibility Or Believability
*Replace CC 850, paragraph 3, with the following:
This testimony was allowed for the limited purpose of assisting you in evaluating wither _______________’s <name of alleged victim> behavior or reactions were consistent with the conduct of someone being abused. The weight of this evidence, if any, is for you to decide.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency—CALCRIM 850 informs the jury that Battered Person Syndrome evidence can be used “in evaluating the believability of [the complaining witness’s] testimony …” This language is erroneous because it bolsters the testimony of the complaining witness and invites the jurors to diagnose the witness. This is clearly a misuse of the testimony which must be limited to considering whether or not the witness’ reactions, beliefs, perceptions or behavior were inconsistent with someone being abused.
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 5.1 [Highly Prejudicial Or Inflammatory Evidence]
FORECITE CG 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
FORECITE CG 6.5 [Instructions Must Be Balanced Between Defense and Prosecution]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 850.2 Inst 3Deletion Of Double Negatives
*Modify CC 850 paragraph 3, as follows [added language is underlined; deleted language is stricken]:
[Change “not inconsistent” to “consistent with“]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Use Of Double Negative—The use of double negatives make the instructional language more difficult to follow in violation of the objective that jury instructions be understandable. The fact that such language originated from an appellate opinion does not justify its use as a jury instruction. (See CALCRIM Preface, paragraph 2; compare CC 105 which eliminated double negative from former CJ 2.21.1.)
Improper Burden Shifting—Because CALCRIM 850 applies only to the complaining witness, use of the terminology “not inconsistent” improperly implies a defense obligation to establish that the complaining witness’ testimony was inconsistent with the conduct of an abused person. Even if the defense has presented evidence or argument on this point, the defendant has no obligation to prove inconsistency. Instead, the jurors must consider whether the evidence leaves them with a reasonable doubt. (See FORECITE F 100.1 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 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge]
FORECITE CG 6.5 [Instructions Must Be Balanced Between Defense and Prosecution]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 850.2 Inst 4 Jurors Not Required To Decide
*Modify CC 850, paragraph 3, as follows [added language is underlined; deleted language is stricken]:
[Replace “deciding” with “evaluating” or “attempting to decide“]
Points and Authorities
See FORECITE F 100.7 Inst 1; F 104.1 Inst 1.
F 850 NOTES
F 850 Note 1 Testimony On Intimate Partner Battering And Its Effects: Credibility Of Complaining Witness: CALCRIM Cross-References And Research Notes
CALCRIM Cross References:
CALCRIM 851 [Testimony On Intimate Partner Battering And Its Effects: Offered By The Defense (EC 1107(a))]
CALCRIM 852 [Evidence Of Uncharged Domestic Violence (EC 1109(a)(1))]
CALCRIM 853 [Evidence Of Uncharged Abuse Of Elder Or Dependent Person (EC 1109(a)(2))]
Research Notes:
See CLARAWEB Forum, Assaultive And Battery Crimes—Series 800-900.
F 850 Note 2 Admissibility Of Expert Testimony Regarding Behavior Of Domestic Abuse Victims Based On Single Incident Of Abuse
Regardless of its admissibility under EC 1107, expert testimony about the behavior of domestic violence victims may be admissible under EC 801 even it only one incident of abuse has occurred. (People v. Brown (2004) 33 C4th 892, 895-96; see also People v. Williams (2000) 78 CA4th 1118; compare People v. Gomez (1999) 72 CA4th 405.)
CALJIC NOTE: See FORECITE F 9.35.1 n13.
