SERIES 300 EVIDENCE
F 317 FORMER TEDTIMONY OF UNAVAILABLE WITNESS
TABLE OF CONTENTS
F 317 Inst 1 Prior Statement Of Deceased Declarant In Gang Case
F 317 Notes
F 317 Note 1 Weighing Transcript Testimony: Sua Sponte Duty To Instruct
F 317 Note 2 Unavailability Of Witness
F 317 Note 3 Witness Credibility: Inability To Cross-Examine Out-Of-Court Declarant’s Statements
Return to Series 300 Table of Contents.
F 317 Inst 1 Prior Statement Of Deceased Declarant In Gang Case
*Replace CC 317 with:
Evidence of a prior statement by _______________ <insert name of deceased declarant> has been admitted because [he] [she] is unavailable to testify. You must consider [his] [her] prior statement as if it had been given before you in this trial. This requires you to weigh the credibility of the statement in light of all the circumstances, [including the fact that _________________ <deceased declarant> was never cross-examined regarding this statement]. You should not speculate as to the reasons for the witness’s unavailability and you must not draw any inference regarding the unavailability of the witness.
Points and Authorities
EC 1231 permits a prior statement of a deceased declarant to be admitted in a gang case (PC 186.20 et seq.; but 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]), provided that a number of prerequisites are first met. If such evidence is introduced under EC 1231-EC 1231.4 the jury may not be told that the declarant died from anything other than natural causes, but must merely be told that the declarant is unavailable. (EC 1231.4; California Mandatory Criminal Jury Instruction Handbook (CJER) (2013) § 2.161(l).)
The above instruction informs the jury that it must consider the testimony of an unavailable witness as if it had been given in the trial. (Cf. CALJIC 2.12.) However, in circumstances where the prior statement has not been subject to cross-examination, the jury should be informed that it may consider such lack of cross-examination in determining the credibility of the witness. (See FORECITE F 105.1 Inst 9.) The above instruction specifically refers to this factor; however, alternatively, it could be added to the list of factors in CC 105 and CC 206.
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 5.1 [Highly Prejudicial Or Inflammatory Evidence]
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.
PRACTICE TIP: Even if specific reference to the lack of cross-examination in the instruction is denied, counsel should be alert to argue this factor as a basis for discrediting the prior hearsay evidence. (See PG VI(C)(10).)
CAVEAT: A request for an instruction on the issue of the declarant’s unavailability should be evaluated as a matter of trial strategy. There may be a danger that specific reference to the unavailability of the witness may serve only to highlight and further prejudice the defendant by inviting the jury to speculate that the defendant is responsible for the declarant’s unavailability. On the other hand, the jury may draw this conclusion on its own even if no instruction is given. (See generally, PG X(E)(19) re: strategic considerations regarding cautionary and limiting instructions.)
CALJIC NOTE: See FORECITE F 6.50d.
F 317 NOTES
F 317 Note 1 Weighing Transcript Testimony: Sua Sponte Duty To Instruct
People v. Wharton (1991) 53 C3d 522, 598-99, implies that CJ 2.12 (now 317) should be given sua sponte. While the court did not directly hold that the instruction is required sua sponte, it assumed omission of the instruction was error and concluded that the error was harmless.
CALJIC NOTE: See FORECITE F 2.12 n1.
F 317 Note 2 Unavailability Of Witness
(See FORECITE F 317 Inst 1 [Prior Statement Of Deceased Declarant In Gang Case].)
CALJIC NOTE: See FORECITE F 2.12 n2.
F 317 Note 3 Witness Credibility: Inability To Cross-Examine Out-Of-Court Declarant’s Statements
(See FORECITE F 105.1 Inst 9.)
CALJIC NOTE: See FORECITE F 2.12 n3.
