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F 3.11 n1 Accomplice Corroboration: Out-Of-Court Statements.
People v. Razo REV GTD/DISD/DEPUB (90) 217 CA3d 616 [266 CR 158] [REV GTD 3/90; dismissed 2/91 per Rule 29.4(c)] held that the corroboration requirement did not apply to out of court statements relying on the reasoning of Justice Jefferson in People v. Pic’l (81) 114 CA3d 824, 872-74 [171 CR 106].
[Research Note: See FORECITE BIBLIO 3.10, et al.]
F 3.11 n2 Accomplice Corroboration: Must Satisfy Jury That Accomplice Is Telling The Truth.
The requirement that the accomplice corroboration tend to “connect the defendant with the commission of the offense” (CJ 3.11) is apparently taken from language in People v. Hathcock (73) 8 C3d 599, 617 [105 CR 540]. This language provides as follows:
“The evidence required for corroboration of an accomplice ‘need not corroborate the accomplice as to every fact to which he testifies but is sufficient if it does not require interpretation and direction from the testimony of the accomplice yet tends to connect the defendant with the commission of the offense in such a way as reasonably may satisfy a jury that the accomplice is telling the truth ….” (Ibid.)
This language could provide the basis for requesting expansion of CJ 3.11 to include language that the jury must find that the accomplice’s testimony connects the defendant with the commission of the crime “in such a way as reasonably may satisfy the jury that the accomplice is telling the truth.”
Hathcock and Wisely also make it clear that the witness corroboration need not go to every element of the offense charged but is sufficient if it relates to “some act or fact which is an element of the crime.” CJ 3.11 does not directly convey this concept.
[Research Note: See FORECITE BIBLIO 3.10, et al.]
F 3.11 n3 Accomplice Corroboration: Limited To “Incriminating” Evidence.
The rationale for the accomplice corroboration rule (CJ 3.11) and the instruction that accomplice testimony should be viewed with distrust (CJ 3.18) is inapplicable when the accomplice is neither attempting to shift the blame to the defendant nor expecting leniency in exchange for his testimony. (People v. Guiterrez (91) 232 CA3d 1624, 1637 [284 CR 230]; see also 7 Wigmore on Evidence (Chadbourne Rev.) § 2057, p. 417.)
Hence, where the rationale for the accomplice corroboration rule is absent it makes no sense to require that the accomplice’s testimony be corroborated and viewed with distrust. “The essential element … it must be remembered, is this supposed promise or expectation of conditioned clemency. If that is lacking, the whole basis of mistrust fails.” (Wigmore on Evidence, supra, at 417.)
Accordingly, when appropriate, CJ 3.11 should be omitted or limited to “incriminating” (and not exculpatory) accomplice testimony. (Guiterrez 232 CA3d at 1637.)
[Research Note: See FORECITE BIBLIO 3.10, et al.]
F 3.11 n4 Failure To Give Accomplice Instructions Held Harmless Error.
People v. Tatman (93) 20 CA4th 1, 12 [24 CR2d 480].
[Research Note: See FORECITE BIBLIO 3.10, et al.]
F 3.11 n5 Failure To Require Accomplice Corroboration: Reversible Error.
See FORECITE PG X(C)(9).
[Research Note: See FORECITE BIBLIO 3.10, et al.]
F 3.11 n6 Appellate Issue Alert: Pre-1997 Version.
The pre-1997 version of 3.11 failed to limit the definition of accomplice testimony to out of court statements. (See FORECITE F 3.11 et seq. See CALJIC History CJ 3.11.)
F 3.11a
Accomplice Corroboration: Applicability To Statements And Testimony
SUBSEQUENT HISTORY: CJ Instruction Modified To Comport With FORECITE. In the CALJIC 6th Edition, CJ 3.11 was amended to adopt FORECITE’s recommendation to include out-of-court statements within the meaning of accomplice “testimony.”
*For the word “testimony” in CJ 3.11 (1990 Revision) substitute:
… [testimony] [and] [out-of-court statement[s]] …
Points and Authorities
When the prosecution relies only on the in-court testimony of an accomplice CALJIC’s use of the term “testimony” is adequate.
However, the California Supreme Court has held that when the prosecution relies upon out-of-court statements “the trial court should substitute the word ‘statement[s]’ for ‘testimony’ ….” (People v. Andrews (89) 49 C3d 200, 215, fn 11 [260 CR 583]; see also People v. Belton (79) 23 C3d 516, 516 [153 CR 195]; People v. Hill (93) 12 CA4th 798, 807-08 [15 CR2d 806] [sua sponte duty to give accomplice instruction as to taped statement].) Subsequent decisions have limited this rule to out-of-court statements which are made under “suspect circumstances.” (People v. Williams (97) 16 C4th 153, 245-46 [66 CR2d 123] [discussing Belton; but see People v. Sully (91) 53 C3d 1195, 1230 [283 CR 144] and People v. Jeffrey (95) 37 CA4th 209, 218 [43 CR2d 526].)
When the prosecution relies upon both out-of-court statements and in-court testimony further modification is appropriate to make it clear that the corroboration rule applies to both.
The above modification provides a clearer and more concise instruction than CJ 3.11 (1990 Revision) which adds a separate provision informing the jury — contrary to the ordinary meaning of testimony — that testimony includes out-of-court statements.
Improper or inadequate instruction upon witness credibility implicates 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.]
RESEARCH NOTES
See FORECITE BIBLIO 3.10, et al.
F 3.11b
Non-Accomplice Out-Of-Court Statements Must Be Corroborated
ALERT: In People v. Cuevas (95) 12 C4th 252 [48 CR2d 135], the California Supreme Court overruled People v. Gould (60) 54 C2d 621, 631 [7 CR 273] and held that corroboration of out-of-court statements is no longer required. However, a federal issue remains as to whether retroactive application of this new rule violates federal ex post facto, due process and/or equal protection principles. Because the new rule reduces the prosecution’s burden of proof, and thus permits conviction upon less evidence, ex post facto principles should apply to it. (See People v. Sobiek (73) 30 CA3d 458, 472 [106 CR 519]; see also, FORECITE F 2.90 n5.) Carmell v. Texas (2000) 529 US 513 [146 LEd2d 577; 120 SCt 1620, 1643] held that ex post facto principles were implicated by the failure to apply a Texas witness-corroboration rule which was repealed after commission of the crime. The corroboration requirement altered the rules of evidence so that less or different evidence was required to convict. Carmell distinguished rules changing the admissibility of evidence (which apply to both sides), and rules which impact the sufficiency of evidence to convict.
*Add to CJ 3.11:
The defendant[s] cannot be found guilty based upon statements made outside of this trial unless you find such statements are corroborated by other evidence that tends to connect the defendant[s] with the commission of the offense[s].
Points and Authorities
PC 1111 requires corroboration of accomplice testimony with "other such evidence as shall tend to connect the defendant with the commission of the offense …."
However, there is a much broader corroboration rule — grounded upon due process — which holds that an uncorroborated extrajudicial statement (e.g., an identification) of any person is insufficient evidence of guilt. (People v. Gould (60) 54 C2d 621, 631 [7 CR 273].) For example, where "no evidence" incriminates the accused, save a single witness’s repudiated extrajudicial statement, then the conviction cannot be sustained. (See People v. Lucky (88) 45 C3d 259, 288-89 [247 CR 1]; see also In re Miguel L. (82) 32 C3d 100, 106-07 [185 CR 120]; In re G. (79) 25 C3d 543, 547-48 [159 CR 180].)
In People v. Marquez (93) 16 CA4th 115 [20 CR2d 365], the court held that the trial court has a sua sponte duty to instruct the jury on the need for corroborating an extrajudicial identification whenever evidence of a witness’ extrajudicial identification of the defendant is admitted at trial and that witness fails to confirm the extrajudicial identification at trial. (See also People v. Armijo (90) 221 CA3d 271, 279-80 [270 CR 496] [refusal to give Gould instruction, "if erroneous, was harmless."].) Such an instruction "should be patterned after the instructions on the need for corroboration of accomplice testimony set forth in CJ 3.11 and CJ 3.12." (Marquez 16 CA4th at 122, fn 4.)
Hence, as with accomplice corroboration the jury should be instructed, when appropriate, regarding the need for corroboration of extrajudicial statements.
Improper or inadequate instruction upon witness credibility implicates 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.]
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.]
[See also FORECITE F 2.91a]
NOTES
[FORECITE subscribers may obtain a copy of the opinion in People v. Aragon UNPUBLISHED (H009482) which found a sua sponte duty to give a Gould instruction. Ask for Opinion Bank # O-134.]
RESEARCH NOTES
See Annotation, Admissibility and weight of extrajudicial or pretrial identification where witness was unable or failed to make in-court identification, 29 ALR4th 104 and Later Case Service.
F 3.11c
Accomplice Testimony: No Reference To The Term “Accomplice”
*Modify CJ 3.11 as follows [Added language is capitalized. Deleted language is between << >>]:
You cannot find a defendant guilt based upon the testimony of <<an accomplice>> ______[INSERT NAME OF TESTIFYING ACCOMPLICE]______ unless that testimony is corroborated by other evidence which tends to connect [the] [that] defendant with the commission of the offense.
[Testimony of <<an accomplice>> ______[INSERT NAME OF TESTIFYING ACCOMPLICE]______ includes any out-of-court statement purportedly made by <<an accomplice>> ______[INSERT NAME OF TESTIFYING ACCOMPLICE]______ received for the purpose of proving that what <<the accomplice>> ______[INSERT NAME OF TESTIFYING ACCOMPLICE]______ stated out-of-court was true.]
Points and Authorities
(See FORECITE F 3.16b.)