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F 2.011a Jurors To Disregard Defendant’s Courtroom Behavior.
(This instruction has been renumbered FORECITE F 2.60b.)
F 2.011e
Failure Of Prosecution To Have Informant Witness Available.
*Add to CJ 2.11:
The prosecution failed to have the witness __________ [name or description] available due to the failure of the police agencies to exercise due diligence in ascertaining the identity and address of the witness [maintaining contact with the witness] during the course of their investigation.
Because of this failure, you must presume that the testimony of the witness, if [he] [she] were available, would be favorable to the defendant.
Points and Authorities
It is well settled that the confrontation clause of the Federal constitution (6th and 14th amendments) requires the prosecution to exercise good faith and due diligence in obtaining and maintaining contact with confidential informants. (See Twiggs v. Superior Court (83) 34 C3d 360, 365 [194 CR 152]; Eleazer v. Superior Court (70) 1 C3d 847, 851 [83 CR 586]; cf., Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354] [recognizing importance of 6th Amendment right to confrontation].)
The above instruction is from Deerings EC 413, “Suggested Forms” for use in such a case. (See also FORECITE F 2.014a.)
RESEARCH NOTES
See Annotation, Adverse presumption or inference based on state’s failure to produce or examine informant in criminal prosecution ‑‑ modern cases, 80 ALR4th 547 and Later Case Service.