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F 2.010a
Witness Afraid To Testify: Limiting Instruction
Evidence has been presented that witness __________ was afraid to testify. If you conclude that the witness was afraid you may consider this fact solely on the issue of [his] [her] credibility. You are not to consider it for any other purpose.
There is no evidence that the defendant was in any manner responsible for the witness’ fear and you may not infer that the defendant threatened the witness. Nor may you consider the witness’ fear as establishing a consciousness of guilt on the part of the defendant.
Points and Authorities
Evidence that a defendant threatened a witness implies a consciousness of guilt and thus is highly prejudicial and admissible only if adequately substantiated. (People v. Hannon (77) 19 C3d 588, 600 [138 CR 885]; see also FORECITE F 2.06 n2.)
In People v. Warren (88) 45 C3d 471, 481 [247 CR 172], the court concluded that even though the defendant was not responsible for the witness’ fear, such fear was nonetheless relevant and admissible upon the issue of the witness’ credibility. Hence, such evidence is admitted for a limited purpose and, therefore, a limiting instruction is required on request. (EC 355.) Moreover, under the principles embodied in EC 403(c)(1), the jury should be clearly instructed, upon request, that the preliminary fact necessary for consideration of the evidence to show consciousness of guilt — i.e., the defendant’s responsibility for the witness’ fear — has not been established, the jury is barred from considering the evidence.
The failure to adequately or correctly instruct the jury upon consciousness of guilt lessens the prosecution’s burden and allows the jury to draw impermissible inferences of guilt in violation of the defendant’s state (Art. I § 14 and § 15) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. (See FORECITE PG VII(C).)
