Return to CALJIC Part 1-2 – Contents
F 2.12 n1 Weighing Transcript Testimony: Sua Sponte Duty To Instruct.
People v. Wharton (91) 53 C3d 522, 598-99 [280 CR 631], implies that CJ 2.12 should be given sua sponte. While the court did not directly hold that the instruction is required sua sponte, it assumed omission of the instruction was error and concluded that the error was harmless.
F 2.12 n2 Unavailability of Witness.
See FORECITE F 6.50d [Prior Statement Of Deceased Declarant In Gang Case.
F 2.12 n3 Witness Credibility: Inability To Cross-Examine Out-Of-Court Declarant’s Statements.
(See FORECITE F 2.20 b.)
F 2.13 n1 Preliminary Factual Finding As To Timing Of Prior Consistent Statement.
When the defense claims that a witness’ testimony may have been influenced by multiple biases or motives to fabricate, a prior consistent statement is admissible only if it was made before the existence of any one or more of the alleged biases or motives to fabricate. (People v. Hayes (90) 52 C3d 577, 609 [276 CR 874].) Therefore, when appropriate, the jury should be instructed per EC 403 that it cannot consider the prior consistent statement unless it makes a preliminary factual finding that the statement was made before at least one of the alleged biases or motives to fabricate. (See FORECITE F 2.001a.)
F 2.13a
Prior Consistent Or Inconsistent Statements:
If Witness No Longer Remembers Events, Then Jury
Should Disregard Extrajudicial Statements Regarding Those Events
*Add to CJ 2.13:
If you believe a prosecution witness’ testimony that he or she no longer remembers certain events, then you should disregard that witness’ extrajudicial statements regarding those events.
Points and Authorities
(See People v. Simmons (81) 123 CA3d 677, 681-82 [177 CR 17].) [See Brief Bank # B-865 for briefing on this issue.]
