Return to CALJIC Part 1-2 – Contents
F 2.20.1 n1 Child Witness Instruction: Due Process And Equal Protection Challenges.
Even though the state appellate decisions have validated CJ 2.20.1, the federal constitutional issues may still be raised on federal habeas or certiorari if properly preserved in state court.
Due Process: CJ 2.20.1 contains a dual and contradictory message. On the one hand, the jury is told that child victims “may perform differently.” Yet, the jury is also told that this does not mean that the child is less credible. In this regard, CJ 2.20.1 is the converse of the now disapproved instruction which was formerly given in rape cases. In the old days, juries were told to view the testimony of rape victims with caution insofar as a rape charge is easily made and difficult to disprove. Finding the instruction to be archaic and unnecessary in light of modern criminal procedure, it was banned by our Supreme Court. (People v. Rincon-Pineda (75) 14 C3d 864, 882 [123 CR 119].)
By parity of reasoning, the same is true here. According to the Legislature, children are as credible as adults. (PC 1127f; see also People v. Jones (90) 51 C3d 294, 315 [270 CR 611].) Why then is the jury told that a child witness’ “different” performance is an irrelevant criteria to consider? In FORECITE’s view, a rational juror could only interpret CJ 2.20.1 as requiring that a child witness be given the benefit of the doubt when his/her lack of testimonial ability results in weak or undetailed or contradictory testimony. Since such an interpretation results in a lessening of the government’s burden of proof, 14th Amendment due process principles are implicated. (See generally, FORECITEPG VII “Federalizing the Request.”)
However, CJ 2.20.1 has been upheld. (People v. Harlan (90) 222 CA3d 439, 455-57 [271 CR 653]; see also People v. Gilbert (92) 5 CA4th 1372, 1392-93, [7 CR2d 660].) However, the reasoning in Harlan is suspect. As is discussed above, CJ 2.20.1 is misleading in that it tells the jury to ignore any differences in a child witness’ performance. According to Harlan, CJ 2.20.1 cannot be read in this way since the term “perform” refers to the “nonverbal action” of the witness and not his testimony. (Harlan 222 CA3d at 455.) This conclusion is unfounded.
As is well settled, jury instructions are to be construed as the average layperson would reasonably understand them. (Sandstrom v. Montana (79) 442 US 510, 514 [61 LEd2d 39; 99 SCt 2450].) According to the dictionary, “perform” is defined as “to enact (a test or role) before an audience.” (Webster’s II New Riverside University Dictionary (1984), p. 873.) Without doubt, a “role” constitutes the use of both language and movement. Thus, the average layperson (and lawyer for that matter) would understand “perform” to include testimony.
Equal Protection: CJ 2.20.1 specifically advises the jury not to “discount or distrust the testimony of a child solely because he or she is a child.” However, CALJIC does not contain a commensurate instruction for the defendant (i.e., do not distrust the defendant’s testimony merely because he is on trial for his liberty). Hence, CJ 2.20.1 singles out a certain class of witness, here the child victim, while the defendant is denied the same degree of instructional protection. This state of affairs constitutes an equal protection violation. (U.S. Constitution, 14th Amendment.)
[Research Note: See FORECITE BIBLIO 2.20.1]
Testimony Of A Child: Cautionary Instruction
*Add to CJ 2.20.1:
You have heard the testimony of __________, and you may be wondering whether [his] [her] young age should make any difference. What you must determine, as with any witness, is whether that testimony is believable. Did [he] [she] understand the questions? Does [he] [she] have a good memory? Is [he] [she] telling the truth?
Because young children may not fully understand what is happening here, it is up to you to decide whether __________ understood the seriousness of [his] [her] appearance as a witness at this criminal trial. In addition, young children may be influenced by the way that questions are asked. It is up to you to decide whether __________ understood the questions asked of [him] [her]. Keep this in mind when you consider __________’s testimony.
Points and Authorities
(Fed. Jud. Ctr., Pattern Crim. Jury Instructions (1988), Inst. # 27, p. 36.) The Federal Judicial Center instruction may be more accurate than the CALJIC instruction (which is the instruction authorized by PC 1127f) because it calls the jury’s attention to the basic difficulties with the testimony of a child, specifically stressing the kinds of issues which may arise in connection with such testimony. Hence, because PC 1127f does not preclude other child witness instructions, the above instruction may be given in place of CJ 2.20.1.
CALCRIM INSTRUCTION ON THIS POINT: See CALCRIM 330 [Testimony of Child 10 Years of Age or Younger].
For an alternative form which tells the jury to “consider a child’s testimony with caution” and which warns the jury that the child’s “strength and use of imagination may frequently be out of proportion to the power of [the child’s] other facilities” see Deerings EC 701, “Suggested Forms,” p. 336.
See FORECITE BIBLIO 2.20.1.
Evaluation Of Witness Believability:
Applicability To Out-Of-Court Declarant
*Modify CJ 2.20.1:
[When appropriate, modify all CJ instructions relating to determination of witness believability to also relate to the believability of extra-judicial statements by out-of-court declarants. (See FORECITE F 2.20b.)]