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F 2.26 n1 When Witness Refuses To Testify Outside The Presence Of The Jury.
Either party has a right, upon request, to an instruction cautioning the jury regarding the unavailability of a witness who has exercised the privilege not to testify outside the presence of the jury. (See FORECITE F 2.25a; see also, Note to FORECITE F 2.25a re: tactical reasons for not requesting this instruction.)
By seeking to assure that the jurors fairly evaluate the credibility of the prosecution witnesses it protects the defendant’s federal constitutional rights to trial by jury and due process (6th and 14th Amendments). [See generally, FORECITE PG VII.]
F 2.26 n2 Witness Refusal To Testify: Informing The Jury.
It is improper to place a witness who has a valid 5th Amendment privilege in front of jury to assert it. (People v. Mincey (92) 2 C4th 408 [6 CR2d 822].) However, it is proper to permit the prosecutor to call and question a witness who refuses to testify without valid privilege. (People v. Lopez (99) 71 CA4th 1550 [84 CR2d 655].)
In People v. Cudjo (93) 6 C4th 585, 619 [25 CR2d 390], the court rejected the defendant’s argument that the trial court should have informed the jury of the witness’ refusal to testify or compelled the witness to claim the privilege against self-incrimination in the jury’s presence. (See also People v. Stewart (2004) 33 C4th 425, 473 [EC 913 did not afford defendant right to instruction informing jury that witness exercised 5th Amendment].)
F 2.26 n3 Privilege Against Self-Incrimination: Applicability To Those Who Claim Innocence.
The privilege against self-incrimination is also available to those who claim innocence when a truthful response may provide the government with incriminating evidence. (Ohio v. Reiner (2001) 532 US 17 [149 LEd2d 158; 121 SCt 1252, 1254].)
F 2.26a
Exercise Of Privilege Other Than Self-Incrimination:
Guilt vs. Innocence
SUBSEQUENT HISTORY: CJ Instruction Modified To Comport With FORECITE. In the CALJIC 6th Edition, CJ 2.26 was amended to adopt FORECITE’s recommendation that the term “innocent” be replaced with “not guilty.”
*Modify CJ 2.26 as follows [added language is capitalized; deleted language is between <<>>]:
When a witness refuses to testify to any matter, relying upon the exercise of a lawful privilege, you must not draw from that fact any inference as to the credibility of the witness or as to <<the guilt or innocence of the defendant>> WHETHER OR NOT THE EVIDENCE PROVES THE DEFENDANT GUILTY BEYOND A REASONABLE DOUBT.
Points and Authorities
One of the most fundamental principles of criminal law is the prosecution’s burden to prove the defendant guilty beyond a reasonable doubt. (See Mullaney v. Wilbur (75) 421 US 684, 684-85 [44 LEd2d 508].) And, an essential rule which emanates from this burden is that the defendant need not prove his or her innocence, but need only leave the jury with a reasonable doubt as to guilt. (See People v. Hall (80) 28 C3d 143, 159 [167 CR 844]; see also People v. Adrian (82) 135 CA3d 335, 342 [185 CR 506]; FORECITE F 17.50b.) Hence, jury instructions which suggest that the jury must decide between guilt or innocence implicate the defendant’s state (Art. I § 15) and federal (6th and 14th Amendments) constitutional rights to due process and trial by jury. (See also Bugliosi, “Not Guilty and Innocent — The Problem Children Of Reasonable Doubt“, 4 Crim. Justice J. 349 (1981).)
Indeed the CALJIC committee appears to have recognized this problem in their 1990 revision of CJ 17.47 which deleted the “guilt or innocence” language of the former instruction. (See also, CJ 16.835, lines 10-11.)
Accordingly, CJ 2.26 should also be revised.
F 2.26b
Exercise Of Privilege: No Presumption As To Any Matter At Issue
*Modify CJ 2.26 as follows [added language is capitalized; deleted language is between <<>>]:
When a witness refuses to testify to any matter, relying upon the exercise of a lawful privilege, <<you>> NO PRESUMPTION ARISES BECAUSE OF THE EXERCISE OF THE PRIVILEGE. YOU must not draw from the exercise of such privilege any inference as to the credibility of the witness or as to <<the guilt or innocence of the defendant>> ANY OTHER MATTER AT ISSUE IN THIS TRIAL INCLUDING WHETHER OR NOT THE EVIDENCE PROVES THE DEFENDANT’S GUILT BEYOND A REASONABLE DOUBT.
Points and Authorities:
[See FORECITE F 2.25d.]
The above instruction modifies CJ 2.26 to fully comply with the statutory language.
F 2.26c
Exercise Of Privilege: Compliance With Legislative Intent
*Modify CJ 2.26 as follows [added language is capitalized; deleted language is between <<>>] :
When a witness refuses to testify to any matter, relying upon the exercise of a lawful privilege, <<you must not draw from that fact any inference as to the credibility of the witness or as to the guilt or innocence of the defendant>> SUCH REFUSAL IS NOT EVIDENCE AND SHOULD NOT BE CONSIDERED FOR ANY PURPOSE.
Points and Authorities
[See FORECITE F 2.25e.]
The above instruction modifies and simplifies CJ 2.26 to more effectively convey the intent of EC 913.
