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F 2.27 n1 Testimony Of Single Witness: When Corroboration Required.
In People v. Noguera (92) 4 C4th 599, 630-32 [15 CR2d 400], the court found no prejudicial error in failing to modify CJ 2.27 to specifically require corroboration of the accomplice. The court reached this result because the jury received the full panoply of accomplice instructions and both counsel proceeded throughout the trial on the assumption that the accomplice’s testimony required corroboration. Note, however, that no request for modification of CJ 2.27 was made in Noguera. Certainly, if such a request is made it must be granted under the authority of People v. Chavez (85) 39 C3d 823, 830-331 [218 CR 49] and Noguera does not hold to the contrary.
F 2.27 n2 Corroboration Of Dog Tracking Evidence.
Corroboration is required when the defendant has been identified by dog tracking evidence. (People v. Gonzales (90) 218 CA3d 403, 407-14 [267 CR 138].)
F 2.27 n3 Out-Of-Court Identification Must Be Corroborated.
Prior to People v. Cuevas (95) 12 C4th 252 [48 CR2d 135] where a witness repudiated his or her out-of-court statements (e.g., identification of the defendant), corroboration of the repudiated statement was required. (See FORECITE F 3.11b.) In such pre-Cuevas, CJ 2.27 should be modified to assure that the jury does not rely upon the repudiated statement without corroboration. [Additional briefing and an opinion on this issue (People v. AragonUNPUBLISHED (H009482)) are available to FORECITE subscribers. Ask for Brief Bank # B-579 and Opinion Bank # O-134.]
F 2.27 n4 Single Witness: Insufficient To Sustain Perjury Charge.
A person may not be convicted of perjury under PC 118 when the only proof of falsity of the statement is the testimony of one witness which contradicts the defendant’s statement. (See CJ 7.23; PC 118(b); see also People v. Alcocer (91) 230 CA3d 406 [282 CR 5]; Weiler v. U.S. (45) 323 US 606 [89 LEd 495; 65 SCt 548] [prejudicial error to fail to give an instruction virtually identical to CJ 7.23].)
Accordingly, CJ 2.27 should not be given in a perjury case. [Additional briefing on these issues is available to FORECITE subscribers. Ask for Brief Bank # B-775.]
F 2.27 n5 Corroboration: Defendant’s Statements May Be Used As To Degree.
Once criminal agency has been established by prima facie evidence that a murder was committed, permitting a defendant’s own statements to establish the degree of the crime does not violate due process, fair trial or the 8th Amendment. (People v. Weaver (2001) 26 C4th 876 [111 CR2d 2].)
F 2.27a
Sufficiency Of Single Witness Testimony
*Revise CJ 2.27 (1991 Revision) to provide as follows:
You should give the testimony of a single witness whatever weight you think it deserves. However, testimony by one witness which you believe concerning any fact is sufficient for the proof of that fact. You should carefully review all the evidence upon which the proof of such fact depends. ¶ The prosecution bears the burden of proof as to each material element of the offense charged beyond a reasonable doubt. If that proof depends on a single witness, the testimony of that witness must be believed beyond a reasonable doubt. ¶ If the testimony of a single defense witness raises a reasonable doubt as to any element of the charged offenses, then you are required to return a verdict of not guilty.
Points and Authorities
In People v. Gammage (92) 2 C4th 693, 702, fn 5 [7 CR2d 541], the Supreme Court concluded that it need not consider the Court of Appeal criticisms of CJ 2.27 in light of CALJIC’s 1991 revision (July ’91 pocket part). However, the 1991 revision fails to satisfy two concerns identified in the Gammage appellate decision (90) 232 CA3d 1094 (advance sheet only) [275 CR 28]): 1) The Gammage majority suggested that the “carefully review” language of CJ 2.27 creates “an artificial, unnecessary, confusing and potentially harmful bifurcated review standard.” (275 CR at 37.) CJ 2.27 implies that the testimony of a single witness, no matter how credible, should be “carefully reviewed” while the testimony of two inherently incredible witnesses should not be carefully reviewed. (Ibid.) 2) The Gammage dissent (Johnson, J.) reasoned that CJ 2.27 should differentiate between prosecution and defense burdens: “… [C]onsider a hypothetical case in which defendant’s guilt hinges entirely on the testimony of two witnesses giving diametrically opposed versions of what happened. One witness says the defendant did it; the other says he didn’t. Are the two witnesses to be judged by the same standard of credibility? Not if the prosecution is truly held to the standard of proof beyond a reasonable doubt. Under that standard, jurors would be duty bound to acquit even if they believed the prosecution’s witness was somewhat more credible than the defense witness if they entertained a reasonable doubt the defense witness was telling the truth and the prosecution witness lying.” (Gammage 275 CR at 38.) Under this analysis, the 1991 version of CJ 2.27 implicates federal due process (14th Amendment) by lessening the prosecution’s burden of proof beyond a reasonable doubt. (See generally, FORECITE PG VII; but see, People v. Wade (95) 39 CA4th 1487, 1496-97 [46 CR2d 645].)
In light of the above concerns, CJ 2.27 should be modified as set forth above.
NOTES
The Supreme Court decision in Gammage should not preclude such a modification because it did not address the concerns set forth above. (People v. Dillon (83) 34 C3d 441, 473-74 [194 CR 390] [cases are not authority for matters not considered].)
F 2.27b
Single Witness: When Corroboration Required
*In a situation where a prosecution witness does require corroboration (e.g., accomplice corroboration), the following paragraph should be added to CJ 2.27:
The [in court testimony] [and] [out of court statements] of [an accomplice] [__________] [insert others which may require corroboration, see, e.g., FORECITE F 2.27 n1, FORECITE F 10.70 n1] must be corroborated before it may be given any weight whatsoever.
Points and Authorities
CJ 2.27 should contain an explicit reference to the testimony requiring corroboration. (People v. Chavez (85) 39 C3d 823, 830-31 [218 CR 49].)
NOTES
Corroboration is required when the defendant has been identified by dog tracking evidence. (People v. Gonzales (90) 218 CA3d 403, 407-14 [267 CR 138].)
