Return to CALJIC Part 3-4 – Contents
F 3.16 n1 Accomplice As Matter Of Law: Improper Implication Of Conspiracy.
In a conspiracy prosecution the designation of the alleged co-conspirators as accomplices as a matter of law may imply that a conspiracy existed. While 5th and 6th Amendment challenges to CJ 3.16 were rejected in People v. Hardy (92) 2 C4th 86, 152 [5 CR2d 796], tactical considerations might warrant considering requesting cautionary amplification of CJ 3.16 or possibly omission of the instruction altogether. Moreover, counsel should consider whether to preserve the constitutional issue for federal habeas or certiorari. (See FORECITE PG VII.)
[Research Note: See FORECITE BIBLIO 3.10, et al.]
F 3.16 n2 Accomplice As A Matter Of Law: Test For Determining.
“Whether a person is an accomplice is a question of fact for the jury unless there is no dispute as to either the facts or the inferences to be drawn therefrom.” (People v. Stankewitz (90) 51 C3d 72, 90 [270 CR 817]; see also, People v. McLain (88) 46 C3d 97, 106 [249 CR 630].) Therefore, the fact that a witness has been charged or held to answer for the same crimes as the defendant and then granted immunity does not necessarily establish that the witness is an accomplice. (Stankewitz 51 C3d at 90; see also, People v. Garrison (89) 47 C3d 746, 772 [254 CR 257].)
Nor is an individual’s presence at the scene of a crime or failure to prevent its commission sufficient to establish that the person is an accomplice as a matter of law. (Stankewitz 51 C3d at 90.)
[Research Note: See FORECITE BIBLIO 3.10, et al.]
F 3.16 n3 Accomplice As A Matter Of Law: Directed Verdict That Defendant Is Perpetrator.
By informing the jury that a particular witness is an “accomplice as a matter of law,” CJ 3.16 effectively tells the jury that there was at least one other person who was guilty of the charged crime. After all, if there is an accomplice, there must also be a perpetrator. Accordingly, when the defendant is the only other person who could have been the perpetrator, CJ 3.16 acts to inform the jury that the defendant was the perpetrator and thus directs a verdict against the defendant. (See People v. Hill (67) 66 C2d 536, 555 [58 CR 340] [“… where co-defendant has made a judicial confession as to the crimes charged, an instruction that as a matter of law such codefendant is an accomplice of other defendants might well be construed by the jurors as imputing the confessing defendant’s foregone guilt to the other defendant’s”].) In this manner, the instruction 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 People v. Figueroa (86) 41 C3d 714 [224 CR 719].) [See Brief Bank # B-690 for additional briefing on this issue.]
(See FORECITE F 3.16b.)
F 3.16 n4 Accomplice As A Matter Of Law: CJ 3.16 Must Be Given.
It is well established that CJ 3.16 must be given sua sponte when a witness is an accomplice as a matter of law. (People v. Robinson (64) 61 C2d 373, 394-96 [38 CR 890]; People v. Dailey (60) 179 CA2d 482, 485-86 [3 CR 852].) [See Brief Bank # B-845 for briefing on this issue.]
Applicability To Statements And Testimony
*For the word "testimony" in CJ 3.16 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.
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].)
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.
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.]
(See FORECITE F 3.11a.)
NOTE: Whether Modification Is Required Sua Sponte. See People v. Lawley (2002) 27 C4th 102, 161 [115 CR2d 614]; see also People v. Andrews (89) 49 C3d 200, 214-215 [260 CR 253] [modification not required sua sponte where neither trial court nor parties suggested that the corroboration required differed as between the out-of-court and in-court statements].
No Reference To The Term “Accomplice”
*Re: CJ 3.16:
[In cases involving only an accomplice as a matter of law, remove reference to the term “accomplice” in CJ 3.11, CJ 3.12, CJ 3.13, CJ 3.16, and CJ 3.18. Do not give CJ 3.10, CJ 3.14, CJ 3.15, CJ 3.17 and CJ 3.19].
Points and Authorities
By informing or suggesting to the jury that a co-participant in the crime is an “accomplice” as a matter of law (CJ 3.16), there is a danger that the jury may infer the guilt of the defendant from the guilt of the “accomplice.” (See, e.g., FORECITE F 3.10a; F 3.16 n1.) After all, if there is an accomplice under the definitions set forth in CJ 3.10, there must also be a perpetrator. When the defendant is the only other possible choice as the perpetrator, CJ 3.16 acts to direct a verdict against the perpetrator. (See generally People v. Figueroa (86) 41 C3d 714 [224 CR 719]; see also People v. Hill (67) 66 C2d 536, 555 [58 CR 340] [where a co-defendant has made a judicial confession, an instruction that as a matter of law such co-defendant is an accomplice of the other defendant may well be construed by the jurors as imputing the co-defendant’s foregone guilt to the other defendant]; compare People v. Heishman (88) 45 C3d 147, 162-63 [246 CR 673] [CJ 3.16 does not preclude jury from finding that accomplice and not defendant was the killer].)
Moreover, by utilizing the term “accomplice,” the court is making a comment on the evidence which the jury may take as a suggestion that the court believes the defendant to be guilty. “The trial court may not, in the guise of privilege, withdraw material evidence from the jury’s consideration, distort the record, expressly or impliedly direct a verdict, or otherwise usurp the jury’s ultimate fact-finding power. [Citations.]” (People v. Rodriguez (86) 42 C3d 730, 766 [230 CR 667].) And, to the extent that proper judicial comment is permitted, the jury should be expressly informed that it is not bound to accept the judge’s interpretation and may disregard any or all of the comments with which the jurors do not agree. (See FORECITE F 17.30b; see also People v. Lucero (88) 44 C3d 1006, 1021 [245 CR 185] [improper judicial comment on evidence].) “It is improper…for the court to single out a particular witness in an instruction, since by doing so, the court charge becomes a comment on how the evidence should be considered, rather than a general instruction on a defense theory. [Citations.]” (People v. Harris (89) 47 C3d 1047, 1099 [255 CR 352].) Moreover, a judge’s comment on the evidence may also violate the state and federal constitutional right to due process and fair trial by jury. (See U.S. v. Fuller (4th Cir. 1998) 162 F3d 256.)
Hence, the person should not be referenced as an accomplice as a matter of law, but rather the accomplice instructions should simply refer to the person by name rather than as an “accomplice.”
STRATEGY NOTE: This argument was successfully used to modify the standard CALJIC instructions to replace the word “accomplice” with the actual name of the testifying accomplice. FORECITE subscriber, Robert C. Fracchia of Vacaville, successfully used the FORECITE accomplice materials to exclude the word "accomplice" from the jury instructions in a case where there was an "accomplice as a matter of law." The judge also accepted a number of special instructions in the penalty trial based on FORECITE materials. [The package of accepted instructions is available to FORECITE subscribers. Ask for Instruction Bank # I-867.] [See Brief Bank # B-788 for briefing on this issue.]
USE NOTE: In cases involving an accomplice as a matter of law and a possible accomplice depending on the jury’s determination, separate instructions may have to be drafted to avoid informing the jury that there is an accomplice as a matter of law.