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F 1.12 n1 Anonymity Of Alleged Victim: Defense Objection Precludes Instruction Which Benefits Defendant.
See FORECITE F 123 Inst 3.
F 1.12 n2 Anonymity Of Victim/Witness: Unnecessary Anonymity As Violation Of Federal Constitution.
A concern with this procedure, as with other procedures such as juror anonymity and courtroom security, is the implication that a) the defendant may attempt to influence the outcome of the trial; and b) the defendant is a dangerous person from whom the witness must be protected. Each of these implications is highly prejudicial. (See People v. Hannon (77) 19 C3d 588, 600 [138 CR 885]; U.S. v. Thomas (2nd Cir. 1985) 757 F2d 1359; U.S. v. Scarfo (3rd Cir. 1988) 850 F2d 1015, 1021-1023; Illinois v. Allen (70) 397 US 337, 344 [25 LEd2d 353; 90 SCt 1057].) Hence, unnecessary employment of such a procedure would abridge the defendant’s federal constitutional rights to due process and fair trial by jury. (6th and 14th Amendments; see also FORECITE F 0.50 n5 [constitutional challenge to referring to jurors by number].)
Furthermore, withholding the identity of the witness may significantly impair the defendant’s ability to investigate and prepare to cross-examine the witness. This implicates the defendant’s federal constitutional rights to confrontation, due process, trial by jury, and compulsory process under the 5th, 6th and 14th Amendments. (See Alvarado v. Superior Court (2000) 23 C4th 1121, 1135-36 [99 CR2d 149].)
F 1.12 n3 Anonymity Of Victim/Witness: Propriety Of Withholding Identity Of Witness From Defense.
On a sufficient showing of true danger to the witnesses, the very identity of the witnesses can be withheld from the defense, but only prior to trial. (Alvarado v. Superior Court (2000) 23 C4th 1121, 1135-36 [99 CR2d 149].)
F 1.12a Identification Of Parties And Crimes Charged: When Victim’s Identity Is Withheld
SUBSEQUENT HISTORY: In its first 1998 pocket part CALJIC aligned itself with FORECITE by adding CJ 1.12 (“Anonymity of Alleged Victim”). FORECITE had already added the following instruction under CJ 1.06:
*Add to CJ 1.12:
The alleged victim used a fictitious name for the sole purpose of protecting [his] [her] privacy. This is a normal procedure and has nothing to do with the defendant. The fact that [his] [her] true identity was withheld has no bearing on the guilt of the defendant or any other issue in this case. You must not consider it for any purpose.
Points and Authorities
PC 293.5(b) states that if the court orders the alleged victim’s identity to be withheld per PC 293.5(a) “the court shall instruct the jury, at the beginning and at the end of the trial, that the alleged victim is being so identified only for the purpose of protecting his or her privacy pursuant to this section.” However, there are several considerations regarding this instruction. (See FORECITE F 1.12b and F 1.12 n1 and F 1.12 n2.)
F 1.12b Identification Of Parties And Crimes Charged: When Victim’s Identity Is Withheld
*Add to CJ 1.12 [added language is capitalized]:
In this proceeding the alleged victim has been identified as [Jane] [John] Doe. This has been done only for the purpose of protecting [her] [his] privacy pursuant to California law. THIS IS A NORMAL PROCEDURE AND HAS NOTHING TO DO WITH THE DEFENDANT. [The fact that the alleged victim has been so identified is not evidence and should not be considered by you for any purpose in this trial.] YOU MUST NOT MAKE ANY INFERENCE CONCERNING THE DEFENDANT’S GUILT FROM THE FAILURE TO IDENTIFY THE VICTIM.
Points and Authorities
If counsel determines that such an instruction should be given, a request could be made to add language cautioning the jury not to draw any inference concerning the defendant’s guilt from the use of a fictitious name by the alleged victim. People v. Ramirez (97) 55 CA4th 47 at 57-58 [64 CR2d 9], suggested that such language could be added to the instruction upon request but rejected an argument that it should be added sua sponte. Also, language should be added explaining that this is a normal procedure and has nothing to do with the defendant. (See FORECITE F 0.50c; People v. Goodwin (97) 59 CA4th 1084 [69 CR2d 576].)
CAVEAT: Of course, the decision whether to request such an instruction requires careful evaluation as to whether it will unduly emphasize the factor sought to be limited. (See “CAVEAT” to FORECITE F 1.04a.) Consideration should also be given to the impact of the cautionary instruction on the potential constitutional challenge on appeal. Whether requested or not counsel should consider emphasizing the inadequacy of a limiting instruction due to the danger it will highlight the prejudice.