SERIES 100 PRETRIAL INSTRUCTIONS
F 105.1 JURORS DUTY TO JUDGE CREDIBILITY OF WITNESSES
TABLE OF CONTENTS
F 105.1 Inst 1 Each Juror Must Individually Judge Credibility
F 105.1 Inst 2 Improper To Define Jurors Duties In Terms Of Deciding The Truth Based Only On Their Common Sense And Experience
F 105.1 Inst 3 Cautionary Instruction Regarding Juror Use Of Common Sense And Experience To Trump Expert Opinion
F 105.1 Inst 4 (a & b) Juror Reliance On Common Sense Or Experience May Compromise The Reasonable Doubt Standard
F 105.1 Inst 5 Exceptions To Instruction That Each Witness Is To Be Judged By The Same Standard
F 105.1 Inst 6 Expressing Witness Evaluation In Terms Of “Belief” As Misleading
F 105.1 Inst 7 No Bias In Favor Of Law Enforcement Witness
F 105.1 Inst 8 (a & b) Witnesses: “Same Standard” Language Is Confusing And Misleading
F 105.1 Inst 9 Credibility of Witness: Applicability To Out-Of-Court Statements
F 105.1 Inst 10 Believability Of Witness: Jury May Accept A Portion Of The Testimony
F 105.1 Inst 11 Jurors Do Not Have To Choose Between Prosecution And Defense Evidence
Return to Series 100 Table of Contents.
F 105.1 Inst 6 Expressing Witness Evaluation In Terms Of “Belief” As Misleading
*Modify CC 105, paragraph 1, sentence 6, as follows [added language is underlined; deleted language is stricken]:
Consider the testimony of each witness and decide how much of it, if any, you believe [accept] [credit].
Points and Authorities
“If Any”—The CALCRIM instruction fails to use the term “if any” when referring to the jurors’ evaluation of credibility. Use of “if any” is necessary because otherwise the instruction may be read to imply that some weight should be given to the testimony. (Cf., People v. Mendoza (2000) 24 C4th 130, 180 [“It is for the jury to determine to which offense, if any, the inference of [consciousness of guilt] should apply” ]; People v. Navarette (2003) 30 C4th 458 [same]; People v. Duke (1999) 74 CA4th 23 [court admonished the jury that the defendant cannot call the co-defendant as a witness due to the privilege and that the jury should consider this factor in determining how much weight, if any, to give the confession in using it against the defendant].)
Such an implication would invade the province of the jury. It is the jurors who must determine whether or not an instruction applies to the case based on their evaluation of the evidence. The constitutional provisions require the jury fairly and reliably assess witness credibility. “A fundamental premise of our criminal trial system is that ‘the jury is the lie detector.’ [Citation.] Determining the weight and credibility of witness testimony, therefore, has long been held to be the ‘part of every case [that] belongs to the jury, who are presumed to be fitted for it by their natural intelligence and their practical knowledge of men and the ways of men.’ [Citation.]” (U.S. v. Scheffer (1998) 523 US 303, 313 [118 SCt 1261; 140 LEd2d 413].) “Implicit in the right to trial by jury afforded criminal defendants under the Sixth Amendment to the Constitution of the United States is the right to have that jury decide all relevant issues of fact and to weigh the credibility of witnesses.” (U.S. v. Hayward (DC Cir. 1969) 420 F2d 142, 144; see also U.S. v. Gaudin (1995) 515 US 506, 511 [115 SCt 2309; 132 LEd2d 444]; Davis v. Alaska (1974) 415 US 308, 318 [94 SCt 1105; 39 LEd2d 347]; Bollenbach v. U.S. (1946) 326 US 607, 614 [66 SCt 402; 90 LEd 350] [” … the question is not whether guilt may be spelt out of a record, but whether guilt has been found by a jury according to the procedure and standards appropriate for criminal trials …” ].)
Accept Or Credit— The term “believe” improperly implies an evaluation of whether the witness is telling the truth. (See FORECITE F 104.1 Inst 1.) For example, one of the dictionary definitions of “believe” is “to take as true or honest.” (Webster’s Seventh New Collegiate Dictionary; see also CALCRIM 105, & 6 [A If you do not believe a witness’s testimony …].) Hence, to make this portion of the instruction consistent with the other portions which properly reference truth and accuracy, the term “believe” should be replaced with “accept” or “credit” which more clearly includes both truth and accuracy.
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case.
Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
FORECITE CG 7.1 [Right To Jury Consideration Of The Evidence]
FORECITE CG 7.2 [Jury’s Duty To Fully And Fairly Apply The Law]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 105.1 Inst 7 No Bias In Favor Of Law Enforcement Witness
*Add to CC 105, paragraph 1, as follows:
A police officer’s testimony is to be weighed and judged by the same standard that applies to the average witness.
Points and Authorities
“[I]t is not the law that a police officer’s testimony is to be judged by any other standard than that which applies to the average witness.” (People v. Hanna (1939) 36 CA2d 333, 337; see also People v. Cummings (1993) 4 C4th 1233, 1290-91 [“The jury was admonished that all witnesses’ testimony was to be judged on the same basis and that no greater weight should be accorded to [the officer] because he had been a deputy in the court” ]; People v. Hill (1998) 17 C4th 800, 842-43 [“[T]he court should have instructed the jury sua sponte not to give [the officer’s] testimony any artificial weight merely because he was a bailiff … The trial court should have avoided these problems by … instructing the jury to give [the officer’s] testimony no extra weight” ]; Espinoza v. Superior Court (1994) 28 CA4th 957, 964 [A The trial court also has the option of providing, at the parties’ request, further safeguards by way of voir dire, admonishment, or special instructions to jurors concerning how to view testimony of sheriff’s deputy witnesses, and on jurors’ “arms’ length” relations with bailiffs” ].)
Moreover, an officer may have his or her own biases such as:
(1) The natural desire of a police officer to see a criminal brought to justice may cause him to be less than candid in connection with a collateral inquiry which does not go to what appears to him to be the only relevant question: was the defendant a thief? (People v. Dickerson (1969) 273 CA2d 645; see also Briscoe v. LaHue (1983) 460 US 325, 365 [75 LEd2d 96; 103 SCt 1108]; People v. Cook (1978) 22 C3d 67, 85, fn. 7.)
(2) The fact that law enforcement is often a “competitive enterprise” (Terry v. Ohio (1968) 392 US 1, 12 [20 LEd2d 889; 88 SCt1868]; Johnson v. United States (1948) 333 US 10, 14 [92 LEd 436; 68 SCt 367]; and
(3) A police officer who has conducted an illegal search and seizure may be subject to criminal, civil and disciplinary sanctions. (See People v. Dickerson, supra, 273 CA2d at 650 fn. 4.)
(4) The possibility of forfeiture may present a possible police bias in certain drug cases. (See e.g., FORECITE F 105 Note 2.)
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case.
Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
FORECITE CG 6.5 [Instructions Must Be Balanced Between Defense and Prosecution]
FORECITE CG 7.1 [Right To Jury Consideration Of The Evidence]
FORECITE CG 7.2 [Jury’s Duty To Fully And Fairly Apply The Law]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 2.20o.
F 105.1 Inst 8 (a&b) Witnesses: “Same Standard” Language Is Confusing And Misleading
*Replace CC 105, paragraph 1, sentence 3, with the following:
Alternative a:
Each of you must evaluate the testimony of each witness in light of all the factors and considerations which bear on the truth and accuracy of the testimony.
Alternative b:
[Delete CALCRIM 105, Paragraph 1, Sentence 3]
Points and Authorities
The “same standard” language of CALCRIM 105 is confusing and misleading in at least two important ways. First, use of the term “same standard” fails to convey the crucial difference the burden of proof poses when judging any testimony. When considering whether a witness favors the prosecution the jurors must consider whether the witness tends to prove one or more of the essential fact which must be established beyond a reasonable doubt. However, when considering the witness vis-a-vis the defense, the standard is whether the juror is left with a reasonable doubt. (See People v. Hill (1998) 17 C4th 700, 831; U.S. v. Blankenship (11th Cir. 2204) 382 F3d 1110, 1127; see also FORECITE F 100.1 Inst 1.)
Second, the “same standard” language erroneously implies that the same factors and considerations should be applied to every witness. Instead, each witness should be judged by different factors—those which are applicable to that witness. (See FORECITE F 105.1 Inst 5.)
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case.
Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
FORECITE CG 7.1 [Right To Jury Consideration Of The Evidence]
FORECITE CG 7.2 [Jury’s Duty To Fully And Fairly Apply The Law]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 105.1 Inst 9 Credibility of Witness: Applicability To Out-Of-Court Statements
*Modify CC 105 as follows: [added language is underlined]:
You alone must judge the credibility or believability of the witnesses [or out-of-court declarants]. In deciding whether testimony is true and accurate, use your common sense and experience. The testimony of each witness [or out-of-court declarant] must be judged by the same standard. You must set aside any bias or prejudice you may have, including any based on the witness’s [or out-of-court declarant‘s] race, religion, [or] national origin, [or ___________] [insert any other potential impermissible bias as appropriate]. you may believe all, none, or part of any witness’s [or out-of-court declarant’s] testimony. Consider the testimony of each witness [or out-of-court declarant] and decide how much of it you believe.
Every person who makes an out-of-court statement which has been admitted into evidence is an out-of-court declarant. You are the sole judges of the believability of an out-of-court declarant and the weight to be given the statements of any out-of-court declarant.
In evaluating a witness’s [or out-of-court declarant‘s] testimony, consider the following questions:
a. How well could the witness [or out-of-court declarant] see or hear [or otherwise sense] the things about which the witness [or out-of-court declarant] testified?
b. How well was the witness [or out-of-court declarant] able to remember and describe what happened?
c. What was the witness’s [or out-of-court declarant] behavior while testifying?
d. did the witness [or out-of-court declarant] understand the questions and answer them directly?
e. Did the witness [or out-of-court declarant] have a reason to lie, such as a bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided?
f. What was the witness’s [or out-of-court declarant] attitude about the case or about testifying?
g. Did the witness [or out-of-court declarant] make a statement in the past that is consistent or inconsistent with his or her testimony?
h. How reasonable is the testimony when you consider all the other evidence in the case?
[i. Did other evidence prove or disprove any fact about which the witness testified?]
[j. Did the witness [or out-of-court declarant] admit to being untruthful?]
[k. What is the witness’s [or out-of-court declarant‘s] character for truthfulness?]
[l. Has the witness [or out-of-court declarant] been convicted of a felony?]
[m. Has the witness [or out-of-court declarant] engaged in [other] conduct that reflects on his or her believability?]
Do not automatically reject testimony just because of inconsistencies or conflicts. Consider whether the differences are important or not. People sometimes honestly forget things or make mistakes about what they remember. Also, two people may witness the same event yet see or hear it differently.
If you decide that a witness [or out-of-court declarant] deliberately lied, consider the importance of the lie. You may choose not to believe anything that witness [or out-of-court declarant] says. However, if you think the witness [or out-of-court declarant] lied about some things but told the truth about others, you may simply accept the part that you think is true and ignore the rest.
Points and Authorities
CALCRIM 105 informs the jurors that they are the sole judges of the credibility of witnesses and provides the jury with specific considerations in evaluating the testimony of witnesses. However, these considerations are no less important when the prosecution relies upon extra-judicial statements by an out-of-court declarant. In analogous situations, where the reliability of certain evidence was at issue, the California Supreme Court has recognized the necessity of expanding standard instructions so that a jury is informed of its duty to determine the credibility and reliability of extra-judicial statements. (See People v. Andrews (1989) 49 C3d 200, 214-15; People v. Montiel (1993) 5 C4th 877, 929.) These cases recognize that a witness’s words at trial may often be supplemented by out-of-court statements, which also must be scrutinized for their reliability and believability. As Montiel recognized, such requirements cannot narrowly be construed when they are prompted by broad underlying concerns of reliability. Hence, the trial court has a sua sponte duty to formulate a non-CALCRIM instruction, or to expand an existing instruction appropriately, when confronted with the situations where extra-judicial statements play a large role in the prosecution’s proof and thus must be evaluated by the jury on an equal footing with the testimony given by live witnesses at the trial.
By failing to inform the jurors that they should consider the credibility of the witness’s out-of-court statements, CALCRIM 105 improperly precludes the jury from considering the reliability of a portion of the prosecution’s case in violation of the defendant’s state and federal constitutional rights to trial by jury and due process. (U.S. Const. 6th and 14th Amendments; Calif. Const. Art I, §15 and §16; see also U.S. v. Rockwell (3d Cir 1986) 781 F2d 985.)
(See FORECITE F 104.4 Inst 2.)
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case.
Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 1.14 [Reliability]
FORECITE CG 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
FORECITE CG 7.1 [Right To Jury Consideration Of The Evidence]
FORECITE CG 7.2 [Jury’s Duty To Fully And Fairly Apply The Law]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
NOTES
CAVEAT: This instruction should be given in conjunction with other relevant instructions relating to accomplice corroboration and extra-judicial statements. (E.g., CALCRIM 335;CJ and FORECITE 3.01 et seq.) The jury should understand that these instructions place additional restrictions on the use of out-of-court statements and, in this regard, out-of-court statements should not be equated with in-court testimony.
NOTE: Whether Modification Is Required Sua Sponte. See People v. Lawley (2002) 27 C4th 102, 161; see also People v. Andrews (1989) 49 C3d 200, 214-215[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].
CALJIC NOTE: See FORECITE F 2.20b/F 2.22a.
F 105.1 Inst 10 Believability Of Witness: Jury May Accept A Portion Of The Testimony
*Replace CC 105, paragraph 1, sentence 5 and 6, with:
You are not required to accept everything a witness or combination of witnesses say. You may accept all of it, part of it, or none of it.
Points and Authorities
CALCRIM 105 focuses on whether or not the jurors “think the witness lied.” However, the jurors are free to reject all or part of a witness’s testimony for any number of reasons other than deliberate falsehood: e.g., deficient recollection, inability to observe, honest mistake, etc.
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case.
Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
FORECITE CG 7.1 [Right To Jury Consideration Of The Evidence]
FORECITE CG 7.2 [Jury’s Duty To Fully And Fairly Apply The Law]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 105.1 Inst 11 Jurors Do Not Have To Choose Between Prosecution And Defense Evidence
*Add to CC 105, paragraph 1:
You are not required to make a choice between the prosecution and defense evidence. Your view of the evidence may be different than the views of both the prosecution and the defense.
Points and Authorities
It is, of course, well settled that the jury may accept some portions of a witness’s testimony and reject other portions. (See, People v. Geiger (1984) 35 C3d 510, 531; People v. Wickersham (1982) 32 C3d 307, 328; People v. Thornton (1974) 11 C3d 738, 755; People v. Ceja (1994) 26 CA4th 78, 86; People v. LaSalle (1980) 103 CA3d 139, 145-46.)
In fact, the jury may even come up with a “third scenario” by combining parts of the defense and prosecution evidence: “We recognize that we (like the jury) are not required to make a binary choice between the prosecution evidence and the defense evidence; if the evidence as a whole would support a third scenario, the trial court may be required to give instructions on that scenario. [Citation.]” (People v. Hernandez (2003) 111 CA4th 582, 589-90; see also [NF] People v. Wilkins (3/7/2013, S190713) 56 CA4th 333, 350 [“although the jury clearly disbelieved defendant’s testimony that he had not stolen the property from the Kane home, it could have believed other portions of his testimony . . .”]; People v. Barton (1995) 12 CA4th 186, 198 n.7; People v. Wickersham (1982) 32 CA3d 307, 328.)
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case.
Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
FORECITE CG 7.1 [Right To Jury Consideration Of The Evidence]
FORECITE CG 7.2 [Jury’s Duty To Fully And Fairly Apply The Law]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
ALERT: The presumption of innocence does not require the defendant to prove that an evidentiary conflict must be resolve in favor of the defense. To the contrary, a conflict may be sufficient to leave the jurors with a reasonable doubt that the prosecution has met its burden. (See FORECITE F 103.3 Inst 5.)
CALJIC NOTE: See FORECITE F 2.20g.
