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F 2.21.2 n1 Various Due Process And Eighth Amendment Claims Rejected As To CJ 2.21.2.
(See People v. Millwee (98) 18 C4th 96, 158-59 [74 CR2d 418].)
F 2.21.2 n2 Failure To Give “Witness Willfully False” Instruction As Reversible Error.
In People v. Reyes UNPUBLISHED (B120694), the Court of Appeal held that the failure to give CJ 2.21.2 (witness willfully false) was prejudicial error under the Watson (People v. Watson (56) 46 C2d 818, 836 [299 P2d 243]) standard. [See Opinion Bank # O-254 and Brief Bank # B-826 for the unpublished opinion in Reyes and briefing on this issue.]
F 2.21.2a
Witness Wilfully False: Definition of “Material Part”
*To be inserted as second ¶ of CJ 2.21.2:
As it is used in this instruction, “material part of [his] [her] testimony” refers to testimony which is of such significance that it could be determinative of the case if believed or disbelieved.
Points & Authorities
Although it has been stated that CJ 2.21.2 contains a correct statement of the law (People v. Blankenship (59) 171 CA2d 66, 83-84 [340 P2d 282]), the existing case law does not set forth a definition of the term “material part.” To the extent that the term appears to be one with a technical legal meaning, it should be defined for the jury. (People v. Shoals (92) 8 CA4th 475, 489-90 [10 CR2d 296] [court must instruct sua sponte as to those terms which have a technical meaning].)
Given the context of CJ 2.21.2, the proper definition of “material part” should be taken from those cases which construe the materiality element of the crime of perjury. (PC 118.) In this regard, the Supreme Court has held that the test for materiality is “whether the statement could probably have influenced the outcome of the proceedings ….” (People v. Pierce (67) 66 C2d 53, 61 [56 CR 817].) Thus, “material part” of someone’s testimony must relate to a point which could be “determinative of the case.” (Black’s Law Dictionary (5th Ed. 1979) p. 881; definition of “material evidence.”)
People v. Wade (95) 39 CA4th 1487, 1495-96 [46 CR2d 645], held that “material” as used in CJ 2.21.2 carries its ordinary meaning of “substantial, essential, relevant or pertinent” and does not require sua sponte definition.
However, Wade does not involve a requested instruction. Moreover, there is a sua sponte duty to instruct on common words if the jury expresses misunderstanding of the term. (See FORECITE PG II(B)(2).)
F 2.21.2b
“Probability Of Truth” Confuses Burden
As To Prosecution Witness
*Modify second sentence of CJ 2.21.2 to provide as follows [added language capitalized; deleted language between <<>>]:
You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe <<the probability of truth favors>> his or her testimony in other particulars TO BE TRUTHFUL.
Points and Authorities
When CJ 2.21.2 is applied to a defense witness, the “probability of truth” language has been held to be proper. (See People v. Beardslee (91) 53 C3d 68, 94-95 [279 CR 276].) However, the considerations are different when the instruction is applied to a prosecution witness who provides the critical evidence against the defendant. An instruction which tells the jury that crucial prosecution testimony may be accepted based on a “probability” standard is “somewhat suspect.” (People v. Rivers (93) 20 CA4th 1040, 1046 [25 CR2d 602]; but see People v. Riel (2000) 22 C4th 1153, 1200 [96 CR2d 1] [even if “probability of truth” language” was somewhat suspect” standing alone, as a whole the instructions were correct].) Although the court in Rivers did not hold that the giving of CJ 2.21.2 was prejudicial error, its “concerns” about use of the instruction where it affects the crucial testimony of a sole percipient witness provides a basis for modifying the instruction when appropriate.
People v. Foster (95) 34 CA4th 766 [40 CR2d 633] held that the instructions — when considered as a whole — adequately told the jury to apply CJ 2.21.2 “only as part of the process of determining whether the prosecution had met its fundamental burden of proving [the defendant’s] guilt beyond a reasonable doubt. [Citation.]” [Internal quotation marks omitted]. However, in reaching this conclusion, the court did not preclude the availability, upon request, of “appropriate limitations or clarifications” to the instruction. (Foster, 34 C4th at 775; see also, People v. Wade (95) 39 CA4th 1487, 1494-95 [46 CR2d 645].)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]
NOTES
Evaluation Of Witness Believability: Applicability To Out-Of-Court Declarant. [See FORECITE F 2.20.1b.]
