Return to CALJIC Part 3-4 – Contents
F 3.20 n1 Meaning Of “In-Custody” Informant (PC 1127a).
PC 1127a, which was effective January 1, 1990, requires that a cautionary instruction be given upon request whenever an “in-custody informant” testifies at trial. Subdivision (a) of the statute defines an in-custody informant as “a person, other than a co-defendant, percipient witness, accomplice, or co-conspirator whose testimony is based upon statements made by the defendant while both the defendant and the informant are held within a correctional institution.” However, the statute does not define “correctional institution.” Nevertheless, settled rules of statutory interpretation require that the statute be applied to any situation in which the defendant and witness have been incarcerated.
The term “correctional institution” is not specifically defined anywhere in the Penal Code. While “correctional institution” is generally used to refer to state prison, there is nothing in the Penal Code which limits that term to state prisons or to institutions within the jurisdiction of the Department of Corrections. Because the term “correctional institution” as used in PC 1127a is not specifically defined by the plain language of the statute, the principles of statutory interpretation must be utilized to determine the meaning of the term. (People v. Belleci (79) 24 C3d 879, 884 [157 CR 503].) These principles require the court to give effect to the intent of the legislature so as to effectuate the purpose of the law. (People v. Woodhead (87) 43 C3d 1002, 1007-08 [239 CR 656].) In determining such intent, the court turns first to the words themselves, giving them their ordinary and generally accepted meaning. (People v. Craft (86) 41 C3d 554, 559-60 [224 CR 626].) The words must be read in light of the legislative objective sought to be achieved, as well as the evil sought to be averted. (People v. Aston (85) 39 C3d 481, 489 [216 CR 771].)
In the case of PC 1127a it is clear that the legislative objective is to reduce the danger of unwarranted convictions based on the testimony of in-custody informants who, because of their custodial status, have a particular motive to fabricate their testimony. Clearly, this objective would not be fully achieved if the term “correctional institution” were to be limited to state correctional facilities. The danger of unwarranted conviction is just as high, if not higher, when the informant is incarcerated in a county facility as opposed to state prison. Hence, there is no rational basis for excluding county facilities from the purview of PC 1127a. In fact, such an interpretation would further violate settled principles of statutory interpretation by leading to an absurd result. And, even if there were two reasonable constructions of the statute the one that is most favorable to the defendant must be adopted. (Bowland v. Municipal Court (76) 18 C3d 479, 487-88 [134 CR 630].)
In sum, PC 1127a should be interpreted to include any and all facilities in which the defendant and informant have been incarcerated together.
Moreover, the failure to so construe PC 1127a would reduce the jury’s ability to fairly evaluate the credibility of the prosecution witnesses thus implicating the defendant’s federal constitutional rights to trial by jury and due process (6th and 14th Amendments).
F 3.20 n2 In-Custody Informant: Actual Imprisonment Not Required (PC 1127a).
Based on the reasoning in FORECITE F 3.20 n1, PC 1127a should be applied to alleged statements by the defendant made to the informant while in custody of the authorities but not in any particular facility. (E.g., while in custody after arrest and awaiting transportation to jail; during transportation from one facility to another.) PC 4504(b) further supports this interpretation by providing that a person is “confined in” prison for purposes of in-prison offenses even though he may be temporarily outside of the prison walls or bounds for purposes such as work details.
F 3.20 n3 In-Custody Informant: Modification Of CJ 17.42 (PC 1127a).
Note that CJ 17.42 should be modified whenever a prosecution’s witness’ testimony may have been influenced by the potential penalty facing that witness. (See FORECITE F 17.42a.)
F 3.20 n4 In-Custody Informant: Payments Limited To $50 (PC 1127a).
Note also that pursuant to PC 4001.1, payments to an in custody informant “in return” for testimony are limited to $50 plus expenses including relocation.
F 3.20 n5 Informant Not In Custody (PC 1127a).
PC 1127a requires a cautionary instruction, upon request, regarding an in custody informant. The essence of this instruction — jury should consider effect of benefits witness may have received — also applies to informers who are not in custody. (See U.S. v. Patterson (9th Cir. 1981) 648 F2d 625, 630-31; U.S. v. Gonzalez (5th Cir. 1974) 491 F2d 1202, 1207-08; see also federal cases cited in People v. Hovey (88) 44 C3d 543, 566 [244 CR 121].) Hence, informer cautionary instructions may “focus the jury upon the defendant’s attack on [the witness’s] credibility.” (People v. Castro (79) 99 CA3d 191, 197 [160 CR 156]; see also People v. Barnett (76) 54 CA3d 1046, 1052 [127 CR 88].)
Accordingly, even though a non-custody informer instruction need not be given sua sponte (People v. Mickey (91) 54 C3d 612, 674-75 [286 CR 801]), it should be given upon request.
RESEARCH NOTES: See Annotation, Adverse presumption or inference based on state’s failure to produce or examine informant in criminal prosecution — modern cases, 80 ALR4th 547 and Later Case Service.
F 3.20 n6 Juvenile Informants: Limitation On Use.
AB 2816, effective 9/28/98, added PC 701.5 which prohibits any peace officer or his or her agent from using anyone 12 years of age or younger as a minor informant, and from using anyone under 18 as a minor informant, except as authorized by the Stop Tobacco Access to Kids Enforcement Act (BP 22950 et seq.) unless the officer has obtained a court order authorizing the minor’s cooperation. The bill requires the court, prior to issuing such order, and after specified conditions are satisfied, to make a finding that the agreement to act as a minor informant is voluntary and is being entered into knowingly and intelligently.
The bill was originally opposed by the San Diego County District Attorney’s Office stating that the “legislation would identify for … criminal organizations a specific group of people who, by statute, will never be allowed to turn on them. Minors will be sought out and recruited for participation in dangerous drug dealing by criminals, because those same criminals know that law enforcement cannot use minors as informants.”
F 3.20 n7 Inquiry Into Nature Of Informant’s Sentence.
U.S. v. Caldwell (8th Cir. 1996) 88 F3d 522, 524-25 [error to preclude defense inquiry into length of sentence to which witness would have been exposed absent the prosecution deal to reduce the charge].
F 3.20 n8 Informant: Prosecution Must Disclose All Information Relevant To Credibility.
When the prosecution relies on the testimony of a criminal informant, it has an obligation to disclose "all information bearing on that witness’s credibility," including "the witness’s criminal record . . . and any information therein which bears on credibility." (Carriger v. Stewart (9th Cir. 1997) 132 F3d 463, 480.) "[The prosecution] cannot satisfy its Brady obligation to disclose exculpatory and impeachment evidence by making some evidence available and asserting that the rest would be cumulative. Rather, the state is obligated to disclose all material information casting a shadow on a government witness’s credibility." (Benn v. Lambert (9th Cir. 2002) 283 F3d 1040, 1057-58 [internal quotation marks omitted]; see also Belmontes v. Woodford (9th Cir. 2003) 350 F3d 861 [prosecutor obligated to disclose evidence concerning informant’s misdemeanor traffic offenses.)
F 3.20a
Cautionary Instruction:
Benefits Conferred Upon Informer/Testimony Of Addict Informer
*Add to CJ 3.20:
In evaluating testimony of a witness who has received a favorable disposition of a charge from the prosecution, you should consider the extent to which that testimony may have been influenced by the receipt of any benefits from the party calling that witness. This does not mean that you may arbitrarily disregard such testimony, but you should give it the weight to which you find it to be entitled in light of all the evidence in this case.
You have heard testimony that _______, a witness, has received [benefits, compensation, favored treatment, etc.] from the government in connection with this case. You should examine _______’s testimony with greater caution than that of ordinary witnesses. In evaluating that testimony, you should consider the extent to which it may have been influenced by the receipt of [e.g., benefits] from the government.
Points and Authorities
When an informer–whether in custody or not–has received benefits from the prosecution in exchange for his/her testimony, a special informer cautionary instruction is warranted. (See FORECITE F 3.20 n5.) In such a case, CJ 3.20 may be modified as set forth above. (Logically this instruction should be included as a supplement to CJ 2.20.)
The courts have long recognized that the definition of an informer includes persons who provide evidence against a defendant for personal advantage or vindication, as well as for pay or immunity. (See Guam v. Dela Rosa (9th Cir. 1980) 644 F2d 1257, 1259; Steinmark v. Parratt (D.Neb. 1977) 427 FSupp 931, 935 fn 4; U.S. v. Morgan (9th Cir. 1977) 555 F2d 238, 243 fn 10; Devitt et al, Fed. Jury Prac. & Inst. (3d Ed. 1977) § 17.02; see also U.S. v. Holmes (9th Cir. 2000) 229 F3d 782, 786 [defendant entitled to specific instruction on credibility of informant witness where witness gathered information for government in return for promises of advantageous treatment or other benefits]; but see People v. Jenkins (2000) 22 C4th 900, 1009 [95 CR2d 377] [immunity/plea agreements do not necessarily render testimony of accomplices unreliable unless they requires the witness to testify in a particular manner; agreement that specifies only that the testimony be truthful is valid].)
The second paragraph of the above instruction comes from the NINTH CIRCUIT MODEL INSTRUCTIONS (4.10.1 “Testimony of Informer”). “Because of the stark reality [that addicts may fabricate statements for personal gain], [the 9th Circuit] has stated that when a witness is a heroin addict who provides evidence against a defendant, for some personal advantage or vindication, it is appropriate for a court to give the jury an instruction indicating that these circumstances may affect the witness’ credibility, and the jury should therefore consider the witness’ testimony with greater care than that of an ordinary witness. [Citations.]” (Singh v. Prunty (9th Cir. 1998) 142 F3d 1157; see also FORECITE F 3.18b.)
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.]
NOTES
Federal Informant Instruction Properly Refused: In People v. Garceau (93) 6 C4th 140, 190-91 [24 CR2d 664], the court held that the trial court properly refused a cautionary instruction regarding the testimony of an informant patterned after the federal instruction. The court concluded that the standard instructions on credibility of witnesses (CJ 2.20, CJ 2.21, CJ 2.22, CJ 2.23) adequately instructed the jury. [Additional examples of instructions regarding the testimony of informants and drug addicts are available with briefings to FORECITE subscribers. Ask for Instruction Bank # I-850.]
However, the witness in Garceau was not an addict informer who approached the police claiming to have information about the crime which could have easily been fabricated as was the case in Singh v. Prunty (9th Cir. 1998) 142 F3d 1157. In such a case, Garceau should not preclude a cautionary instruction upon request. (See generally, People v. Dillon (83) 34 C3d 441, 473-74 [194 CR 390] [cases are not authority for matters not considered].)
F 3.20b
Cautionary Instruction: Testimony of Paid Informer
*Modify CJ 3.20 as follows:
ALTERNATIVE FORM
You have heard the testimony of __________. [He] [She] has an arrangement with the prosecution under which [he] [she] gets paid for providing information about criminal activity. The prosecution may present the testimony of such a person. Some people who get paid for providing information about criminal activity are entirely truthful when testifying. Still, you should consider the testimony of __________ with more caution than the testimony of any other witness. Since [he] [she] may believe that [he] [she] will continue to be paid only if [he] [she] produces evidence of criminal conduct, [he] [she] may have reason to make up stories or to exaggerate what others did. In deciding whether you believe __________’s testimony, you should keep these comments in mind.
Points and Authorities
Fed. Jud. Ctr., Pattern Crim. Jury Instructions (1988), Inst. # 25, p. 25. In recommending this instruction, the Federal Judicial Center observed that “it is important to draw attention to the testimony of informers, and that some explanation should be given to the jury of the reason that statements by these witnesses are subject to suspicion.” (See also, People v. Castro (79) 99 CA3d 191, 197 [160 CR 156]; People v. Barnett (76) 54 CA3d 1046, 1052 [127 CR 88].) Moreover, the United States Supreme Court’s conclusion that prosecution informers are not prohibited by constitutional provisions is founded in part upon the assumption that the jury is instructed specifically and generally with informer cautionary instructions. (Hoffa v. U.S. (66) 385 US 293, 312 [17 LEd2d 376]; see also, U.S. v. Patterson (9th Cir. 1981) 648 F2d 625, 630-31.)
NOTES
Even if the informer did not receive pay or immunity, a cautionary instruction may be warranted based on the informer’s desire to attain personal advantage or vindication. (See FORECITE F 3.20a.)
F 3.20c
Cautionary Instruction:
Information Received From Sources Who Are The Focus Of Charges Or Investigation
*Add to CJ 3.20:
Information received from sources who are themselves the focus of pending criminal charges or investigations is inherently suspect.
Points and Authorities
The defendant’s theory is that the statements/testimony of the primary prosecution witness is/are inherently suspect because he/she gave the statement in order to avoid charges being filed against him/her. (See People v. Campa (84) 36 C3d 870, 882 [206 CR 114] [“Information received from sources who are themselves the focus of pending criminal charges or investigations is inherently suspect.”].)
The courts have long recognized the obligation to instruct on a defendant’s theory of the case as long as that theory is supported by substantial evidence. (People v. Burnham (86) 176 CA3d 1134, 1143 [222 CR 630].) Therefore, defendant should have the right upon request to an instruction upon this defense theory. (See People v. Wharton (91) 53 C3d 522, 570 [280 CR 631].)
Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See FORECITE PG VII.]
