Witness Credibility: Impeachment of Police Officer Witnesses with Prior Misconduct and/or Dishonesty
July 19th, 2018

Among the factors affecting a witnesses’ credibility listed in CC 105 are the following:   –[Did the witness admit to being untruthful?] –[What is the witness’s character for truthfulness?] –[Has the witness been convicted of a felony?] –[Has the witness engaged in [other] conduct that reflects on his or her believability?]   Similarly, CC 316 tells […]


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Death Penalty: Factor B (Other Violent Conduct) — Notice
July 17th, 2018

People v. Whalen (2013) 56 Cal.4th 1, 73-74 held that the prosecution’s notice of other violent conduct offered in aggravation was sufficient where it “identified the alleged prior convictions by date, county of conviction, and type of offense … [and] also identified the alleged other criminal activity by date or approximate date, location, and type […]


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Judge’s Duties When Responding to Juror Requests for Instructional Clarification
July 9th, 2018

Duty to Consider Elaboration of Standard Instructions Pursuant to PC 1138, when the jurors “desire to be informed on any point of law arising in the case … the information required must be given ….” PC 1138 “imposes upon the court a duty to provide the jury with information the jury desires on points of law.” […]


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Residential Robbery is a Lesser Included Offense of Home Invasion Robbery
July 2nd, 2018

Multiple convictions may not be based on necessarily included offenses based on one criminal act. (See, e.g., People v. Moran (1970) 1 Cal.3d 755, 763 [“If the evidence supports the verdict as to a greater offense, the conviction of that offense is controlling, and the conviction of the lesser offense must be reversed”].) In People […]


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Instruction on Irresistible Impulse Not Required as the Standard for Sanity of a Juvenile Offender
June 29th, 2018

In People v. Marsh (2018) 20 Cal.App.5th 694 the defense argued that due process and the prohibition against disproportionate punishment required the trial court to instruct on irresistible impulse as the standard for sanity of a juvenile. This claim was based on the same body of research on the development of brain function in adolescents […]


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Accomplice’s Out-of-Court Confession Was Inadmissible Testimonial Hearsay Which Violated the Confrontation Rights of the Defendant
June 25th, 2018

In People v. Hopson (2017) 3 Cal.5th 424 a murder conviction was reversed because the judge admitted the deceased co-perpetrator’s confession to the police. Admission of this out-of-court confession — which “pinned much of the blame on defendant” – violated defendant’s Confrontation Clause rights because it constituted inadmissible hearsay.  In so holding, the California Supreme […]


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Is There a Disconnect Between the CALCRIM Expert Witness Instructions (CC 332 and CC 360) and People V. Sanchez (2016) 63 Cal.4th 665
June 22nd, 2018

In its March 2018 revision of CC 360 CALCRIM added a citation to Sanchez but failed to explain the crucial changes that case made to the law regarding an expert’s reliance on hearsay. Nor did Calcrim suggest any revisions to the instructional language in light of Sanchez. Furthermore, as to CC 332 [Expert Witness Testimony] […]


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Proposed Eyewitness Identification Legislation Emphasizes Need for Cautionary Instruction Regarding Eyewitness Testimony
June 20th, 2018

The CALCRIM 315 on eyewitness identification does not admonish the jury to consider eyewitness testimony with care or caution.   Proposed legislation in California (Senate Bill No. 923) would provide statutory recognition of how pretrial identification procedures can contribute to inaccurate identifications and wrongful conviction of the innocent:   “This bill would require all law […]


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Proposed Legislation Regarding Eyewitness Identification Emphasizes the Need for Cautionary Instructions Regarding Pretrial Identification Procedures
June 18th, 2018

The CALCRIM instruction on eyewitness identification does not admonish the jury to consider pretrial identification procedures utilized by the police. It simply tells the jury to consider whether “the witness able to identify the defendant in a photographic or physical lineup?”   Proposed legislation in California (Senate Bill No. 923) would provide statutory recognition of […]


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Summary of New and Revised CALCRIM Instructions Effective March 2, 2018
June 12th, 2018

In this post Preview of CALCRIM March 2018 Revisions the proposed revisions were previewed. Effective March 2, 2018 the Judicial Council, formally approved most of these changes which are now included in the March 2018 version of CALCRIM. See —   https://jcc.legistar.com/View.ashx?M=F&ID=5801835&GUID=F9FFF5C1-5F35-424B-A885-FFE43359A181   The following new instructions were added: NEW 377 Presence of Support Person/Dog […]