SERIES 300 EVIDENCE
F 333 Opinion Testimony of Lay Witness
TABLE OF CONTENTS
F 333 Inst 1 Jury Not Required To “Decide” Whether Information Relied Upon By Witness Was True And Accurate
F 333 Inst 2 (a-c) Lay Opinion Re: Intoxication: Preliminary Fact Requirement
F 333 Inst 3 (a-c) Lay Opinion: Personal Observation As Foundational Requirement
F 333 NOTES
F 333 Note 1 Lay Opinion: Forgetfulness Of Accused On Issue Of Willfulness
F 333 Note 2 Lay Opinion: Shoe Prints (EC 800)
F 333 Note 3 Lay Opinion: Veracity Of Other Witness
Return to Series 300 Table of Contents.
F 333 Inst 1 Jury Not Required To “Decide“ Whether Information Relied Upon By Witness Was True And Accurate
*Modify CC 333, sentence 5 as follows [added language is underlined; deleted language is stricken]:
You must decide Also consider whether information on which the witness relied was true and accurate.
Points and Authorities
See FORECITE F 101.4 Inst 1.
F 333 Inst 2 (a-c) Lay Opinion Re: Intoxication: Preliminary Fact Requirement
*Add to CC 333:
Alternative a [Evidence offered by prosecution: CALCRIM 224 and 376 Format—Essential Fact Must Be Proved Beyond A Reasonable Doubt]:
The prosecution has presented the opinion testimony of ____________ <name of witness> regarding ________________‘s alleged intoxication.
You must not consider this evidence for any purpose unless the prosecution has proved the following preliminary fact by a preponderance of the evidence:
That ____________ <name of witness> had sufficient experience with such intoxication to render a reliable opinion.
A fact is proved by a preponderance of the evidence if you find that it is more likely than not that the fact is true. This is a lesser burden of proof than proof beyond a reasonable doubt.
Unless [all of you] find that this preliminary fact to exist, you must disregard, for all purposes, the testimony of witness ___________<name of witness> regarding _____________’s alleged intoxication.
If you [all] find the above preliminary fact to exist then you [may] [must] consider the testimony of witness ___________<name of witness>] regarding ___________’s alleged intoxication.
However, you must not rely on ___________’s <name of witness> testimony regarding _____________‘s alleged intoxication to find an essential fact or element of the charged offense[s] unless the prosecution has proved [the above preliminary fact beyond a reasonable doubt] [beyond a reasonable doubt that ____________ <name of witness> had sufficient experience with such intoxication to render a reliable opinion.]
Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.
Alternative b [Evidence offered by the defense]:
The defendant has presented the opinion testimony of ____________ <name of witness> regarding ________________‘s alleged intoxication. Before you may consider this evidence you must first make a preliminary finding that:
It more likely than not that ____________ <name of witness> had sufficient experience with such intoxication to render a reliable opinion.
Any juror who has made this finding, [may] [must] consider the testimony of witness ___________ <name of witness>] regarding ________________’s alleged intoxication in evaluating whether the prosecution has met its burden of proving the defendant guilty beyond a reasonable doubt.
The preliminary finding requirement applies only to the __________’s testimony regarding ________________’s alleged intoxication [and any other evidence requiring preliminary fact findings as stated elsewhere in these instructions]. All other evidence is to be fully considered without any preliminary fact findings.
The preliminary fact finding discussed in this instruction does not alter or lessen the presumption of innocence or the prosecution’s burden to prove the defendant guilty beyond a reasonable doubt.
Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.
Alternative c [No reference to preponderance standard]:
Before you may consider the opinion testimony of ____________ <name of witness> about ________________‘s alleged intoxication [drug] you must first find that ____________ <name of witness> had sufficient experience about such intoxication to make (his/her) opinion.
Points and Authorities
Intoxication As A Preliminary Fact—Before a lay witness may be asked about intoxication, it must be established as a preliminary fact that the witness has sufficient experience to render such an opinion. For example, in People v. Navarette (2003) 30 C4th 458, both witnesses said they had never seen people on drugs. Therefore, they were not sufficiently knowledgeable to render an opinion as to whether the defendant was under the influence of drugs.
Propriety Of Preliminary Fact Instruction.—See EC 403; see also FORECITE F 319 Inst 1.
Preliminary Fact Must Be Proven Beyond A Reasonable Doubt Vis a Vis Essential Facts And Elements Of The Offense.—The final paragraph of Alternative b, regarding proof of essential facts, is adapted from CALCRIM 224 and 376. (See also FORECITE F 103.2 Inst 1; FORECITE CG 2.2.)
Whether the Jurors “Must“ Consider the Evidence After Finding the Preliminary Fact.—See FORECITE F 105.2 Inst 1.
Propriety of Juror Unanimity As To Preliminary Facts.—See F 3500.3.1.
Obligation Of Defendant To Prove Preliminary Fact Does Not Alter Prosecution’s Burden Of Proof.—See F 100.1 Inst 1.
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 5.7 [Preliminary Facts]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
Unanimity Use Note.—If unanimity is not required, then the instructions should be directed toward individual jurors. Those finding preliminary fact can consider the evidence, those not finding it cannot. (See generally F 100.7 Inst 2.)
CAVEAT 1: Benefits And Risks Of Preliminary Fact Instruction.—Because they involve different standards of proof, preliminary fact instructions under EC 403 require careful strategic consideration. (See CAVEAT 1 in FORECITE F 319 Inst 1.)
CAVEAT 2: Burden Of Proof In EC 403 Instructions.—See CAVEAT 2 in FORECITE F 319 Inst 1.
CALJIC NOTE: See FORECITE F 2.81 n1.
F 333 Inst 3 (a-c) Lay Opinion: Personal Observation As Foundational Requirement
*Add to CC 333:
Alternative a [Evidence offered by prosecution: CALCRIM 224 and 376 Format—Essential Fact Must Be Proved Beyond A Reasonable Doubt]:
The prosecution has presented the opinion testimony of ____________ <name of witness>.
You must not consider this evidence for any purpose unless the prosecution has proved the following preliminary fact by a preponderance of the evidence:
That the opinion testimony of ____________’s <name of witness> was based on (his/her) personal observation.
A fact is proved by a preponderance of the evidence if you find that it is more likely than not that the fact is true. This is a lesser burden of proof than proof beyond a reasonable doubt.
Unless [all of you] find that this preliminary fact to exist you must disregard, for all purposes, [the testimony of witness ___________ <name of witness>] [any evidence of______________________].
If you [all] find the above preliminary fact to exist then you [may] [must] consider [the testimony of witness ___________ <name of witness>] [any evidence of _________________] in your deliberations.
However, you must not rely on [______’s <name of witness> testimony] [the ____________<e.g., blood> evidence] to find an essential fact or element of the charged offense[s] unless the prosecution has proved [the above preliminary fact beyond a reasonable doubt] [beyond a reasonable doubt that ____________‘s <name of witness> opinion testimony was based on personal observation.]
Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.
Alternative b [Evidence offered by the defense]:
The defendant has presented the opinion testimony of ____________ <name of witness>. Before you may consider this evidence you must first make a preliminary finding that:
It more likely than not that the opinion testimony of ____________‘s <name of witness> was based on (his/her) personal observation.
Any juror who has made this finding, [may] [must] consider [the testimony of witness ___________ <name of witness>] [any evidence of ________________] in evaluating whether the prosecution has met its burden of proving the defendant guilty beyond a reasonable doubt.
The preliminary finding requirement applies only to the evidence regarding ___________________ [and any other evidence requiring preliminary fact findings as stated elsewhere in these in these instructions]. All other evidence is to be fully considered without any preliminary fact findings.
The preliminary fact finding discussed in this instruction does not alter or lessen the presumption of innocence or the prosecution’s burden to prove the defendant guilty beyond a reasonable doubt.
Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.
Alternative c [No reference to preponderance standard]:
You may not rely on the opinion testimony of ____________ <name of witness> unless you first find that it was based on ____________‘s <name of witness> personal observation.
Points and Authorities
Personal Observation As Preliminary Fact: “Lay Opinion testimony is admissible under [EC 1102] when based on the witness’s personal observation of the defendant’s course of behavior.“ (People v. Felix (1999) 70 CA4th 426, 430.)
Propriety Of Preliminary Fact Instruction.—See EC 403; see also FORECITE F 319 Inst 1.
Preliminary Fact Must Be Proven Beyond A Reasonable Doubt Vis a Vis Essential Facts And Elements Of The Offense.—The final paragraph of Alternative a, regarding proof of essential facts, is adapted from CALCRIM 224 and 376. (See also FORECITE F 103.2 Inst 1; FORECITE CG 2.2.)
Whether the Jurors “Must“ Consider the Evidence After Finding the Preliminary Fact.—See FORECITE F 105.2 Inst 1.
Propriety of Juror Unanimity As To Preliminary Facts.—See F 3500.3.1.
Obligation Of Defendant To Prove Preliminary Fact Does Not Alter Prosecution’s Burden Of Proof.—See F 100.1 Inst 1.
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 5.7 [Preliminary Facts]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
Unanimity Use Note.—If unanimity is not required, then the instructions should be directed toward individual jurors. Those finding preliminary fact can consider the evidence, those not finding it cannot. (See generally F 100.7 Inst 2.)
CAVEAT 1: Benefits And Risks Of Preliminary Fact Instruction.—Because they involve different standards of proof, preliminary fact instructions under EC 403 require careful strategic consideration. (See CAVEAT 1 in FORECITE F 319 Inst 1.)
CAVEAT 2: Burden Of Proof In EC 403 Instructions.—See CAVEAT 2 in FORECITE F 319 Inst 1.
CALJIC NOTE: See FORECITE F 2.81 n2.
F 333 NOTES
F 333 Note 1 Lay Opinion: Forgetfulness Of Accused On Issue Of Willfulness
See People v. Moss REV GTD/DISD/DEPUB (2003) 109 CA4th 56 [lay opinion based on personal opinion as to the defendant’s forgetfulness].
CALJIC NOTE: See FORECITE F 2.81 n3.
F 333 Note 2 Lay Opinion: Shoe Prints (EC 800)
Lay opinion testimony concerning shoe print comparison is permissible with proper foundation. (See People v. Maglaya (2003) 112 CA4th 1604; see also People v. Lucero (1998) 64 CA4th 1107 [noting that courts in other states that have considered the issue have upheld the admissibility of lay opinion testimony comparing shoes and shoeprints].)
CALJIC NOTE: See FORECITE F 2.81 n4.
F 333 Note 3 Lay Opinion: Veracity Of Other Witness
See People v. Melton (1988) 44 C3d 713, 744 [lay witnesses’ opinion about veracity of another witness is inadmissible and irrelevant and invades the province of the jury].
(See also FORECITE F 2.019 n8; see also FORECITE CG 11.1.12.)
CALJIC NOTE: See FORECITE F 2.81 n5.
