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F 17.42 n1 Voir Dire/Jury Not To Consider Penalty: Whether Jury Should Be Informed That Non-Capital Special Circumstance Case Does Not Involve The Death Penalty.
(See FORECITE F 0.25 n9.)
F 17.42a
Jury Not To Consider Penalty: Modification When Witness Testifies
Pursuant To Bargain With Prosecution
*To be added at end of CJ 17.42 when appropriate:
However, you are not precluded from considering the potential penalty facing any prosecution witness who had [charges pending] [was on probation] at the time of their testimony [or who received [leniency] [immunity]].
Points and Authorities
CJ 17.42 is overly broad in a case where the potential penalty facing a prosecution witness may bear on that witness’ credibility. Accordingly, CJ 17.42 should be supplemented, upon request and when appropriate, to assure that the jury will fully consider the charges pending against the witness when evaluating the witness’ credibility. The right to such an instruction on request was recognized in People v. Pitts (1990) 223 CA3d 606, 880-81 [judge refused defense request, inter alia, to allow jury to consider punishment “with regard to any witness who had charges pending or who was on probation”]; compare People v. James (2003) 30 CA4th 1084, 1114 [modification not requested]. [See also FORECITE F 2.20a and FORECITE F 3.20a regarding specific instruction upon immunized witnesses and jailhouse informants, and FORECITE F 8.83.2a.)
[Research Note: See FORECITE BIBLIO 17.42.]