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F 3.11.1 n1 Corroboration Rules Apply To Any Unconfirmed Extrajudicial Statement.
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held that ex post facto principles were implicated by the failure to apply a Texaswitness-corroboration rule which was repealed after commission of the crime.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.
In its Jan. 1994 pocket part, CALJIC added a new instruction requiring corroboration of an out-of-court identification which is not confirmed by an identification at the trial. However, the CALJIC instruction is improperly limited only to identification testimony. The rule applies to any repudiated extrajudicial statement. (People v. Montiel (93) 5 C4th 877, 929 [21 CR2d 705].) Hence, in any case where the defendant has been connected to the crime by an out-of-court statement which was not reaffirmed at trial, the jury should be instructed upon the corroboration requirement as set forth in FORECITE F 3.11b.
