F 3.18

F 3.18 n1 Testimony Of Co-Defendant Accomplice To Be Viewed With Caution.

The CALJIC use note states that CJ 3.18 “should be given sua sponte when a defendant in testifying implicates his co-defendant while confessing his own guilt.” (See People v. Terry (70) 2 C3d 362, 398-99 [85 CR 409]; see also People v. Fowler (87) 196 CA3d 79, 87 [241 CR 571].)

However, this rule should not apply when the defendant’s “confession” is to anything less than the full and complete charge against him. For example, if the defendant confesses his involvement in the crime but thereafter sets forth an affirmative defense such as entrapment it would clearly be prejudicial to instruct the jury to view his testimony with caution. Such an instruction would be tantamount to an instruction to view his defense with caution. (In People v. Myers UNPUBLISHED (6/12/90) (F012304), the 5th District Court of Appeal reversed a judgment for just this reason.) [FORECITE subscribers may obtain a copy of the Myers opinion. Ask for Opinion Bank # O-147.]

Similarly, if the defendant’s testimony confesses guilt to only a portion of the charge against him (i.e., to a lesser included offense or to one count of a multi-count information) the cautionary instruction should not be given. (See People v. Fitzgerald (61) 56 C2d 855, 861 [17 CR 129] [a statement which leaves additional matters to be determined is an admission not a confession].)

In People v. Alvarez (96) 14 C4th 155, 218 [58 CR2d 385] the court held that it was proper to instruct that an accomplice-defendant’s testimony should be viewed with caution to the extent that it tends to incriminate his codefendant. The court stated “[I]t is true that the testimony of a defendant ought not to be viewed with distrust simply because it is given by a defendant. … It is also true, however, that the testimony of a defendant ought not to be viewed without distrust simply because it is given by a defendant. Under the law, a defendant is surely equal to all other witnesses. But, under the same law, he is superior to none.” (Alvarez, 14 C4th at 219.)

[Research Note: See FORECITE BIBLIO 3.10, et al.]

F 3.18 n2 Accomplice Corroboration: Limited To “Incriminating” Evidence.

See instruction at FORECITE F 3.18a.

[Research Note: See FORECITE BIBLIO 3.10, et al.]

F 3.18 n3 Whether Failure To Give Accomplice Instruction Constitutes Structural Error Under The Federal Constitution.

The U.S Supreme Court has held that an instructional error regarding the standard of proof beyond a reasonable doubt is a structural error which requires per se reversal. (Sullivan v. Louisiana (93) 508 US 275, 281-82 [124 LEd2d 182; 113 SCt 2078].) In the same vein, earlier cases indicate that per se reversal is required as to any instructional error which diminishes the jury’s understanding of the beyond a reasonable doubt standard. (Cool v. United States (72) 409 US 100, 104 [34 LEd2d 335; 93 SCt 354]; U.S. v. Hall (5th Cir. 1976) 525 F2d 1254, 1256.)

The key principle found in CJ 3.18 is that the jury may not return a conviction unless it first finds corroboration of the accomplice’s testimony. When the jury is not advised of this principle, a conviction can be returned on the basis of a lower quantum of evidence than is permitted by the federal constitution. Thus, the omission to give CJ 3.18 must be deemed reversible per se. (Compare People v. Tatman (93) 20 CA4th 1, 12 [24 CR2d 480] [error held to be prejudicial without considering whether it was “structural”].)

[Briefing as to the prejudicial impact of the failure to caution the jury regarding accomplice testimony per CJ 3.10 and CJ 3.18 is available to FORECITE subscribers, See Brief Bank # B-855 and ask for Brief Bank # B-722 .]

[Research Note: See FORECITE BIBLIO 3.10, et al.]

F 3.18 n4 Accomplice Corroboration: Objection At Trial Required.

Because CJ 3.18 is a cautionary instruction, it is incumbent upon the defendant to object or request modification at trial. (People v. Franko (94) 24 CA4th 1528, 1537-39 [30 CR2d 478].)

[Research Note: See FORECITE BIBLIO 3.10, et al.]

F 3.18 n5 Informing Jurors As To Why Accomplice Testimony Should Be Viewed With Caution.

In her concurring opinion in People v. Guiuan (98) 18 C4th 558 [76 CR2d 239], Justice Kennard examined CJ 3.18 (6th ed. 1996) and the instruction given in Guiuan and observed that: “Neither instruction tells the jury why accomplice testimony should be evaluated with greater care and skepticism than the testimony of other witnesses… A cautionary instruction is more helpful and more effective if it states the reasons why special caution is warranted.” (Guiuan, 18 C4th at 570. [Emphasis in original.].)

Justice Kennard suggested the following instruction:

“In deciding whether to believe the testimony given by an accomplice, you should use greater care and caution than you do when deciding whether to believe testimony given by an ordinary witness. Because an accomplice is also subject to prosecution for the same offense, an accomplice’s testimony may be strongly influenced by the hope or expectation that the prosecution will reward testimony that supports the prosecution’s case by granting the accomplice immunity or leniency. For this reason, you should view with distrust accomplice testimony that support’s the prosecution’s case. Whether or not the accomplice testimony supports the prosecution’s case, you should bear in mind the accomplice’s interest in minimizing the seriousness of the crime and the significance of the accomplice’s own role in its commission, the fact that the accomplices’ participation in the crime may show the accomplice to be an untrustworthy person and an accomplice’s particular ability, because of inside knowledge about the details of the crime, to construct plausible falsehoods about it. In giving you this warning about accomplice testimony, I do not mean to suggest that you must or should disbelieve the accomplice testimony that you heard at this trial. Rather, you should give the accomplice testimony whatever weight you decide it deserves after considering all the evidence in the case.” (Guiuan, supra at 576.)

TRIAL PRACTICE ALERT: Although the majority did not agree with Justice Kennard that the jury should be instructed on such reasons, counsel should be able to argue these points to the jury. (See FORECITE F 1.00l; PG V(C)(10).) Additionally, it may be strategically useful to focus on these factors in conducting investigation, presenting evidence at trial and in cross-examining the witnesses. (But see People v. Jenkins (2000) 22 C4th 900, 1009 [95 CR2d 377] [immunity/plea agreements do not necessarily render testimony of accomplices unreliable unless they requires the witness to testify in a particular manner; agreement that specifies only that the testimony be truthful is valid].)

F 3.18 n6 Due Process Underpinnings Of Accomplice Cautionary Instruction.

The due process roots of the accomplice cautionary instruction are well documented. (See People v. Guiuan (98) 18 C4th 558, 564-69 [76 CR2d 239].) The concept is recognized as an important component of the defendant’s right to a fair trial and to a reliable jury verdict. (Ibid..)

Accordingly, the failure to properly instruct the jury on accomplice testimony implicates the defendant’s federal constitutional right to due process and a fair jury trial. (5th, 6th and 14th Amendments; see Montana v. Egelhoff (96) 518 US 37, 43 [136 LEd2d 361; 116 SCt 2013] [historical practice is primary guide in determining “fundamental principles of justice” for due process analysis]; see also Medina v. California (92) 505 US 437, 446 [120 LEd2d 353; 112 SCt 2572]; Schad v. Arizona (91) 501 US 624 [115 LEd2d 555; 111 SCt 2491].)

F 3.18a

Testimony Of Accomplice Cautionary Instruction:

Applies To Incriminating Evidence Only

SUBSEQUENT HISTORY: In People v. Guiuan (98) 18 C4th 558 [76 CR2d 239] the Supreme Court adopted the instructional recommendation that FORECITE has been making for years regarding the limitation of CJ 3.18 to incriminating statements only. CALJIC “followed suit” and revised CJ 3.18 as set forth below. However, that revision is inadequate. (See FORECITE F 3.18b; see also FORECITE F 3.18 n5 and F 3.18 n6.)

*Re CJ 3.18:

[FORECITE instruction deleted. But see FORECITE F 3.18b.]

Points and Authorities

The rationale for the accomplice corroboration rule (CJ 3.11) and the instruction that accomplice testimony should be viewed with caution (CJ 3.18) is inapplicable when the accomplice is neither attempting to shift the blame to the defendant nor expecting leniency in exchange for his testimony. (People v. Guiterrez (91) 232 CA3d 1624, 1637 [284 CR 230]; see also 7 Wigmore on Evidence (Chadbourne Rev.) § 2057, p. 417.) Accordingly, CJ 3.18 should be limited to “incriminating” (and not exculpatory) accomplice testimony. (Guiterrez 232 CA3d at 1637.) (See also, People v. Harmon (92) 7 CA4th 845, 849-50 [9 CR2d 265] [error to give accomplice corroboration instructions as to testimony favoring defendant absent request by defendant].)

Hence, where the rationale for the accomplice corroboration rule is absent it makes no sense to require that the accomplice’s testimony be corroborated and viewed with caution. “The essential element … it must be remembered, is this supposed promise or expectation of conditioned clemency. If that is lacking, the whole basis of mistrust fails.” (Wigmore on Evidence, supra, at 417.)

People v. Guiuan (98) 18 C4th 558, 564 [76 CR2d 239] adopted FORECITE’S position that CJ 3.18 should be modified to apply only to evidence which tends to incriminate the defendant and not to evidence which is favorable to the defendant. (See also People v. Williams (88) 45 C3d 1268 [248 CR 834]; see also FORECITE CHK II [Sua Sponte Instruction Check List].) The modified instruction is required sua sponte. (Guiuan, 18 C4th at 564.) In Guiuan the Supreme Court concluded that the term “distrust should be replaced with the term “caution.” (But see concurring opinion by Justice Kennard.)

The failure to properly instruct the jury on accomplice testimony implicates the defendant’s federal constitutional right to due process and a fair jury trial. (5th, 6th and 14th Amendments; see Montana v. Eglehoff (96) 518 US 37, 43 [136 LEd2d 361; 116 SCt 2013] [historical practice is primary guide in determining “fundamental principles of justice” for due process analysis]; see also Medina v. California (92) 505 US 437, 446 [120 LEd2d 353; 112 SCt 2572]; Schad v. Arizona (91) 501 US 624 [115 LEd2d 555; 111 SCt 2491]; see also FORECITE F 3.18 n6.)

NOTES:

[Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-741.]

(See also FORECITE F 3.18b [Jury Must Treat Accomplice Testimony With Greater Care and Caution Than Ordinary Witness] and F 3.18 n5 [Informing Jurors As To Why Accomplice Testimony Should Be Viewed With Caution].)

PRACTICE NOTE: Guiuan illustrates the importance of using FORECITE to gain foresight. The basis for the Supreme Court’s modification of CJ 3.18 in Guiuan has been in FORECITE for years in F 3.18a. However, because trial counsel failed to raise the issue below by requesting the FORECITE instruction, the Supreme Court held that the error was waived. (Guiuan, 18 C4th at 563.)

F 3.18b

Jury Must Treat Accomplice Testimony With

Greater Care and Caution Than Ordinary Witness

*Add to CJ 3.18 as follows:

In deciding whether to believe testimony given by an accomplice, you should use greater care and caution than you do when deciding whether to believe testimony given by a nonaccomplice.

Points and Authorities

People v. Guiuan (98) 18 C4th 558 [76 CR2d 239] concluded that the jury should be instructed to view an accomplice’s testimony with “caution” rather than “distrust.” (But see concurring opinion of Justice Kennard, 18 C4th 575; FORECITE F 3.18 n5.) However, the language of CJ 3.18 as modified by Guiuan may not adequately convey the Court’s intended meaning: that “the jury pay special heed to incriminating evidence because it may be biased….” (Guiuan, 18 C4th at 569, fn 4; see also People v. Box (2000) 23 C4th 1153, 1208-09 [99 CR2d 69] [court erred in refusing request to instruct the jury to view codefendant’s testimony with care and caution to the extent it incriminated defendant].) This is so because the jury may rightfully believe that it is their duty to consider all testimony with “care and caution.” Not only would the jurors reasonably conclude on their own that care and caution should be used in all aspects of jury service, but CJ 0.50 and CJ 1.00 specifically admonish the jury that it should “conscientiously consider and weigh the evidence.” Hence, the current language of CJ 3.18, as modified by Guiuan, does not clearly convey that any special or greater scrutiny need be given to the accomplice testimony.) (Compare CJ 3.20 [testimony of informant should be viewed with “caution and close scrutiny”].)

A more accurate instruction would include the following language proposed by Justice Kennard in the above instruction. (Guiuan, 18 C4th 575.) In this way the jurors would more likely understand that they must pay “special” heed to the accomplice testimony.

JURY ARGUMENT ALERT: If the above modification of CJ 3.18 is refused because the concept is included in the standard language, counsel should have the right to read this language to the jury during argument and inform the jury that this language is what the cautionary language of CJ 3.18 was intended to mean. (See FORECITE F 1.00l.)

F 3.18c

Accomplice Corroboration: No Reference To The Term “Accomplice”

*Modify CJ 3.18 as follows [Added language is capitalized. Deleted language is between << >>]:

To the extent that <<an accomplice>> ______[INSERT NAME OF TESTIFYING ACCOMPLICE]______ gives testimony that tends to incriminate [the] [a] defendant, if should be viewed with caution. This does not mean, however, that you may arbitrarily disregard that testimony. You should give that testimony the weight you think it deserves after examining it with care and caution and in the light of all the evidence in this case.

Points and Authorities

(See FORECITE F 3.16b.)

F 3.18d

Late-Joining Accomplice

*Add to CJ 3.18 as follows:

Even if a person is not an accomplice at the beginning of the crime, that person may later become an accomplice based on his or her later participation in the crime.

Points and Authorities

CALJIC 3.18 fails to explain to the jurors that a person need not participate in the crime from the beginning in order to be an accomplice. People v. Jones (2003) 30 C4th 1084, 1112 stated that such an instruction may properly be given upon request by the defense.