CC 330 contains inconsistent admonitions to the jurors regarding consideration of factors potentially relating to the credibility of a child witness under 10 years old.
Compare Paragraph 2:
In evaluating the child’s testimony, you should consider all of the factors
surrounding that testimony, including the child’s age and level of
cognitive development. [Emphasis added.]
with Paragraph 3:
When you evaluate the child’s cognitive development, consider the
child’s ability to perceive, understand, remember, and communicate. [Emphasis added.]
The admonition in Paragraph 2 should be changed from “should consider” to “consider” because the word “should” implies something less than a mandatory obligation to consider the listed factors. Jurors should not be given any leeway to ignore any evidence without at least considering it. See Jury Instructions Should not Permit Jurors to Reject Defense Evidence Without Considering It
Of Testimony and F 4.21e Voluntary Intoxication: Jury “Must” Consider see also F105.2 Inst 1 (a & b) Improper To Imply A Defense Obligation To “Disprove” The Truth Or Accuracy Of Testimony
Accordingly, the CALCRIM instructions typically admonish the jurors to “consider” relevant factors and circumstances. (See, e.g., CC 103 [“… consider all the evidence that was received throughout the entire trial”]; CC 105 [“Consider the testimony of each witness …”]; CC 240 [“In deciding whether a consequence is natural or probably, consider all the circumstances …”]; CC 315 [“In evaluating identification testimony, consider the following questions: . . .”]; CC 330 [“When you evaluate the child’s cognitive development, consider the child’s ability to perceive, understand, remember, and communicate”]; CC 375 [“In evaluating this evidence, consider the similarity or lack of similarity between the uncharged (offense[s]/ [and] act[s]) and the charged offense[s]”]; CC 571 [“In evaluating the defendant’s beliefs, consider all the circumstances as they were known and appeared to the defendant”]; CALCRIM 590 [“In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence”].)
Sample Instruction, modify CC 330 Paragraph 2 to provide as follows:
In evaluating the child’s testimony, you should consider all of the factors surrounding that testimony, including the child’s age and level of cognitive development.