SERIES 1100 SEX OFFENSES
F 1190 Other Evidence Not Required To Support Testimony In Sex Offense Case
TABLE OF CONTENTS
F 1190.1 Titles And Identification Of Parties
F 1190.1 Inst 1 Other Evidence Not Required To Support Testimony In Sex Offense Case—Title
F 1190.1 Inst 2 Identification Of Prosecution And Defendant
F 1190.2 Other Evidence Not Required To Support Testimony In Sex Offense Case—Language That Is Argumentative, Confusing, Etc.
F 1190.2 Inst 1 Single Witness Sufficient Instruction As Improper Comment On The Evidence; Argumentative
F 1190.2 Inst 2 Argumentative Language Should Be Balanced To Assure Jurors Consider All Relevant Evidence
F 1190.2 Inst 3 (a & b) Single Witness Sufficient Instruction: Balance
F 1190 Notes
F 1190 Note 1 Other Evidence Not Required To Support Testimony In Sex Offense Case—CALCRIM Cross-References And Research Notes
F 1190 Note 2 Sex Crimes: Propriety Of Giving CC 1190 When CC 301 Is Also Given
Return to Series 1100 Table of Contents.
F 1190.1 Titles And Identification Of Parties
F 1190.1 Inst 1 Other Evidence Not Required To Support Testimony In Sex Offense Case—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 1190.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 1190.2 Other Evidence Not Required To Support Testimony In Sex Offense Case—Language That Is Argumentative, Confusing, Etc.
F 1190.2 Inst 1 Single Witness Sufficient Instruction As Improper Comment On The Evidence; Argumentative
*Delete CC 1190 which provides:
Conviction of a sexual assault crime may be based on the testimony of a complaining witness alone.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Instructions Should Not Single Out Specific Testimony—CALCRIM 1190 improperly bolsters and unduly emphasizes specific testimony. (See FORECITE F 416.2 Inst 4.)
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 5.4.1 [Instructions That Suggest An Opinion as To An Essential Fact, An Element Or Guilt]
FORECITE CG 5.4.2 [Argumentative Instructions Not Suggesting Opinion On Guilt]
FORECITE CG 5.4.3 [Undue Emphasis Of Specific Evidence]
In death penalty cases additional, federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 1190.2 Inst 2 Argumentative Language Should Be Balanced To Assure Jurors Consider All Relevant Evidence
*Add after CC 1190:
However, the fact that _______________’s <name of alleged victim> testimony was not corroborated and the prosecution’s case is based on (his/her) testimony alone is a circumstance to consider in evaluating whether the prosecution has proven [all the elements of the alleged ________] [__________ _______________ <insert specific element to which the evidence relates>].
Points and Authorities
See FORECITE F 416.3 Inst 7.
F 1190.2 Inst 3 (a & b) Single Witness Sufficient Instruction: Balance
*Modify CC 1190 as follows [added language is underlined; deleted language is stricken]:
Alternative a:
Conviction Acquittal of a sexual assault crime may be based on the testimony of a complaining witness alone.
Alternative b:
Conviction of a sexual assault crime A reasonable doubt as to the defendant’s guilt may be based on the testimony of a complaining witness alone.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Absolute Impartiality Is Required As To Jury Instructions.—(See Cool v. United States (1972) 409 US 100, 103 n. 4 [34 LEd2d 335; 93 SCt 354] [reversible error to instruct jury that it may convict solely on the basis of accomplice testimony but not that it may acquit based on the accomplice testimony]; People v. Moore (1954) 43 C2d 517, 526-27 [“[t]here should be absolute impartiality as between the People and the defendant in the matter of instructions”]; Reagan v. United States (1895) 157 US 301, 310 [15 SCt 610; 39 LEd 709]; see also Wardius v. Oregon (1973) 412 US 470 [93 SCt 2208; 37 LEd2d 82].)
[See also FORECITE F 416.3 Inst 7.]
CALCRIM 1190 violates this rule by focusing only on the complaining witness in a manner that benefits only the prosecution.
The Presumption Of Innocence Allows The Jurors To Base A Reasonable Doubt On The Testimony, Or Lack Of Testimony, Of A Single Witness—See FORECITE F 103.3 Inst 2; see also F 103.3 Inst 5.
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 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 5.4.1 [Instructions That Suggest An Opinion as To An Essential Fact, An Element Or Guilt]
FORECITE CG 5.4.2 [Argumentative Instructions Not Suggesting Opinion On Guilt]
FORECITE CG 5.4.3 [Undue Emphasis Of Specific Evidence]
In death penalty cases additional, federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 1190 NOTES
F 1190 Note 1 Other Evidence Not Required To Support Testimony In Sex Offense Case—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
CALCRIM 301 [Single Witness’s Testimony]
Research Notes:
See CLARAWEB Forum, Sex Offenses—Series 1000.
F 1190 Note 2 Sex Crimes: Propriety Of Giving CC 1190 When CC 301 Is Also Given
It is not improper to give the “no-corroboration” instruction (CJ 10.60 now CC 1190) and the “single-witness” instruction (CJ 2.27 no) in sex cases. (People v. Gammage (1992) 2 C4th 693, 700-02.)
However, Gammage did not consider the question of whether CJ 10.60 and CJ 2.27 are misleading when the instructions are given in unison. (In Gammage, the majority’s rational was that the jurors will not construe CJ 10.60 as affecting their credibility determination when the instruction is removed from instructions on the evaluation of witness credibility. (See Gammage 2 C4th at 700-01.) Thus, the instruction should not be given in unison.
RESEARCH NOTES: See Annotation, Modern status of rule regarding necessity for corroboration of victim’s testimony in prosecution for sexual offense, 31 ALR4th 120 and Later Case Service.
CALJIC NOTE: See FORECITE F 10.60 n1.
