SERIES 100 PRETRIAL INSTRUCTIONS
F 105.3 SPECIFIC WITNESS CREDIBILITY FACTORS
TABLE OF CONTENTS
F 105.3.1 Ability To See Or Hear [Reserved]
F 105.3.2 Ability To Remember And Describe [Reserved]
F 105.3.3 The Witness’s Behavior While Testifying
F 105.3.3 Inst 1 Demeanor Includes Appearance And Behavior
F 105.3.4 Whether The Witness Understood The Questions And Answered Them Directly [Reserved]
F 105.3.5 Whether The Witness’s Testimony Was Influenced By Bias, Prejudice, Relationship, Or Personal Interest In Outcome Of Case [Reserved]
F 105.3.6 Witness’s Attitude About Case/Testifying [Reserved]
F 105.3.7 Past Witness Statements That Are Consistent/Inconsistent With Testimony [Reserved]
F 105.3.8 Reasonableness Of The Witness’s Testimony [Reserved]
F 105.3.9 Whether Witness’s Testimony Was Proved Or Disproved By The Evidence
F 105.3.9 Inst 1 Improper To Imply A Defense Obligation To “Disprove” The Truth Or Accuracy Of Testimony
F 105.3.10 Whether Witness Admitted Being Untruthful
F 105.3.10 Inst 1 Admission Of Inaccuracy By Witness
F 105.3.11 Witness’s Character For Truthfulness
F 105.3.11 Inst 1 Witness’s Character For Inaccuracy
F 105.3.12 Whether Witness Was Convicted Of Felony; Reverse Felony Conviction
F 105.3.12 Inst 1 Whether Or Not Witness Has Been Convicted Of A Felony
F 105.3.13 Witness’s Conduct Reflecting On Believability
F 105.3.13 Note 1 Related Matters
F 105.3.14 No Limitation On Consideration Of Punishment Of Witness Granted Immunity/Leniency
Return to Series 100 Table of Contents.
F 105.3.1 Ability To See Or Hear [Reserved]
F 105.3.2 Ability To Remember And Describe [Reserved]
F 105.3.3 The Witness’s Behavior While Testifying
F 105.3.3 Inst 1 Demeanor Includes Appearance And Behavior
*Modify CC 105, paragraph 2, sentence 3, as follows [added language is underlined]:
What was the witness’s appearance and behavior while testifying?
Points and Authorities
Logically a witness’s demeanor is comprised both of the behavior and appearance of the witness while testifying. (See Riggins v. Nevada (1992) 504 US 127, 138 [112 SCt 1810; 118 LEd2d 479] [medication may have impacted defendant’s appearance while testifying]; McLane v. Commonwealth (VA 1960) 116 SE2d 274, 281.)
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 105.3.4 Whether The Witness Understood The Questions And Answered Them Directly [Reserved]
F 105.3.5 Whether The Witness’s Testimony Was Influenced By Bias, Prejudice, Relationship, Or Personal Interest In Outcome Of Case [Reserved]
F 105.3.6 Witness’s Attitude About Case/Testifying [Reserved]
F 105.3.7 Past Witness Statements That Are Consistent/Inconsistent With Testimony [Reserved]
F 105.3.8 Reasonableness Of The Witness’s Testimony [Reserved]
F 105.3.9 Whether Witness’s Testimony Was Proved Or Disproved By The Evidence
F 105.3.9 Inst 1 Improper To Imply A Defense Obligation To “Disprove” The Truth Or Accuracy Of Testimony
*Modify CC 105, paragraph 2, Factor 9, as follows [added language is underlined; deleted language is stricken]:
[Did other evidence prove or disprove bear on any fact about which the witness testified?]
Points and Authorities
See FORECITE F 105.2 Inst 1.
Identification Of Parties—See FORECITE F 100.2 Note 1.
F 105.3.10 Whether Witness Admitted Being Untruthful
F 105.3.10 Inst 1 Admission Of Inaccuracy By Witness
*Modify CC 105, paragraph 2, Factor 10, as follows [added language is underlined]:
[Did the witness admit to being untruthful and/or inaccurate?]
Points and Authorities
A witness does not need to have lied for the jurors to discount his or her testimony. Innocent failure of recollection may also result in inaccurate testimony. (See People v. Reyes (1987) 195 CA3d 957, 966; People v. Lescallett (1981) 123 CA3d 487, 492; CALJIC 2.21.1.) Hence, the jurors should consider both admissions of untruth and inaccuracy. (See also e.g., CALCRIM 105, CALCRIM 226, CALCRIM 315, CALCRIM 330.)
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 105.3.11 Witness’s Character For Truthfulness
F 105.3.11 Inst 1 Witness’s Character For Inaccuracy
*Modify CC 105, paragraph 2, Factor 11, as follows [added language is underlined]:
[What is the witness’s character for truthfulness and/or accuracy?]
Points and Authorities
See FORECITE F 105.3.10 Inst 1.
Identification Of Parties—See FORECITE F 100.2 Note 1.
F 105.3.12 Whether Witness Was Convicted Of Felony; Reverse Felony Conviction
F 105.3.12 Inst 1 Whether Or Not Witness Has Been Convicted Of A Felony
*Modify CC 105, paragraph 3, Factor 12, as follows [added language is underlined]:
[Has Whether or not the witness been convicted of a felony?]
Points and Authorities
If the jurors may rely on conviction of a felony to find a witness less believable, the lack of a prior felony conviction should be a basis for finding a witness more believable.
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.
F 105.3.13 Witness’s Conduct Reflecting On Believability [Reserved]
F 105.3.14 No Limitation On Consideration Of Punishment Of Witness Granted Immunity/Leniency
See FORECITE F 3550 Inst 9.
