SERIES 100 PRETRIAL INSTRUCTIONS
F 105.4 CONFLICTS AND INCONSISTENCY IN TESTIMONY
TABLE OF CONTENTS
F 105.4 Inst 1 (a-c) Telling The Jurors That Witnesses “Sometimes Forget” Is Inaccurate And Promotes Unreliable Criminal Convictions
F 105.4 Inst 2 (a & b) The CALCRIM Formulation Fails To Precisely Address Honest Misrecollection
F 105.4 Inst 3 (a & b) Telling Jurors That Witnesses “Sometimes” Misremember Is Inaccurate And Promotes Unreliable Criminal Convictions
F 105.4 Inst 4 Under Ex Post Facto/Due Process Principles CALJIC 2.21.1 Should Be Used In Place Of CALCRIM 105/226
F 105.4 Inst 5 (a & b) Witness Credibility: Inability To Cross-Examine Out-Of-Court Declarant’s Statements
F 105.4 Inst 6 Deletion Of Unnecessary Verbiage
Return to Series 100 Table of Contents.
F 105.4 Inst 1 (a-c) Telling The Jurors That Witnesses “Sometimes Forget” Is Inaccurate And Promotes Unreliable Criminal Convictions
Alternative a:
*Modify CC 105, paragraph 3, sentence 3, as follows [added language is underlined; deleted language is stricken]:
People sometimes often honestly forget things or make mistakes about what they remember.
Alternative b [CALJIC 2.21.1, sentence 2]:
Failure of recollection is common.
Alternative c:
*Modify CC 105, paragraph 3, sentence 3, as follows [added language is underlined; deleted language is stricken]:
It is not unusual for people sometimes honestly to forget things or make mistakes about what they remember.
Points and Authorities
Introduction—CALCRIM 105 and 226, paragraph 3, sentence 3, [formally CJ 2.21.1] is a crucial instruction because it focuses on a major cause of wrongful and unreliable criminal convictions—honest misrecollection or mistake. As the United States Attorney General candidly conceded in the Guide for Law Enforcement re: Eyewitness Evidence:
Even the most honest and objective people can make mistakes in recalling and interpreting a witnesses event; it is the nature of human memory. [Emphasis added.]
(Message From The Attorney General, “Eyewitness Evidence: A Guide For Law Enforcement” (National Institute of Justice, October 1999); see also authorities cited in FORECITE F 315.1.3 Inst 1 (a & e) [Certainty Of Eyewitness Is Not A Reliable Indicator Of Accuracy].)
However, CC 105 and 226 have substantially weakened the cautionary admonition regarding honest misrecollection. CALCRIM has changed the CALJIC 2.21.1 language which stated:
Failure of recollection is common. Innocent misrecollection is not uncommon.
“Sometimes“ vs. “Often” Or “Commonly”—Both CALJIC AND CACI, the Judicial Council’s Civil Jury Instructions, accurately caution the jury regarding witness forgetfulness. CALJIC states that “failure of recollection is common” while CACI admonishes that “people often forget things …” (CACI 107 and 5003 [“People often … make mistakes in what they remember.” ].) On the other hand, CALCRIM’s use of the term “sometimes” conveys a much different, and inaccurate, message. Sometimes “typically” means “occasionally,” “at times” or “now and then.” (Roget’s New Millennium Thesaurus, First Edition, 2005.) This gives the witness a false aura of credibility by implying that most of the time witnesses do not forget. This combined with CALCRIM’s omission of any specific instruction on honest mistake (see e.g., CC 315, Related Issues) unjustifiably loads the deck in favor of the witness. This, in turn, undermines the reliability of the jurors’ verdict in violation of the Due Process Clause of the federal constitution.
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]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 105.4 Inst 2 (a & b) The CALCRIM Formulation Fails To Precisely Address Honest Misrecollection
Alternative a:
[Replace CC 105, paragraph 3, sentence 3, with CJ 2.21.1 (October 2005 Edition).]
Alternative b:
*Modify CC 105, paragraph 3, sentence 3, with the following [added language is underlined; deleted language is stricken]:
People sometimes often honestly forget things or make mistakes about what they think they remember correctly.
Points and Authorities
CALIC 2.21.1 states:
Innocent misrecollection is not uncommon.
CALCRIM changed this to:
People sometimes honestly … make mistakes about what they remember.1
This formulation fails to make clear that it applies to misrecollection (i.e., misremembering) as opposed to a mistake in whether or not something was actually remembered. There is a crucial difference between these two considerations because there are two ways a person’s memory may fail, being unable to remember something and remembering it incorrectly. (See Robert C. Cumbow, “The Language of the Law” (Washington State Bar Assoc., Dec. 2005) www.wsba.org/media/publications/barnews/dec05cumbow.aspx.) A person who remembers something incorrectly (i.e., misrecollects or misremembers) “thinks” his or her memory is accurate and doesn’t realize his or her mistake. (Ibid.)
Hence, either the term “misrecollection” should be retained or the CALCRIM instruction should be modified to make clear that it applies to mistaken recollection which the witness thinks is correct.
“Often” vs. “Sometimes”—See FORECITE F 105.4 Inst 1.
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]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 105.4 Inst 3 (a & b) Telling Jurors That Witnesses “Sometimes” Misremember Is Inaccurate And Promotes Unreliable Criminal Convictions
Alternative a:
*Modify CC 105, paragraph 3, sentence 3, as follows [CACI 107, 5003 Format] [added language is underlined; deleted language is stricken]:
People sometimes often honestly … make mistakes about what they think they remember correctly.
Alternative b:
It is not [unusual] [uncommon] for people sometimes to honestly … make mistakes about what they think they remember correctly.
Points and Authorities
“Sometimes“ vs. “Often”—By using the term “sometimes” rather than “often” (CACI 107; CACI 5003) or “not uncommon” (CJ 2.21.1), CALCRIM 105 and 226 fundamentally and inaccurately change the message received by the jurors. Because the term “not uncommon” is a double negative, changing it to “often,” as did CACI, seems reasonable. (See Robert C. Cumbow, “The Language of the Law” (Washington State Bar Assoc., Dec. 2005) http://www.wsba.org/media/publications/barnews/dec05cumbow.aspx [one interpretation of “not uncommon” is that it means “common” ]; see also CC 105.4 Inst 1.)
Hence, Alternative a, above, should be given.
“Sometimes“ vs. “Not Uncommon”—Even if “not uncommon” means sometimes less than “often” or A common” it still is not accurate to replace it with “sometimes.” Accordingly, if Alternative a [“often” ] is not used then Alternative b [“not [uncommon] [unusual]”] should be given.
The distinction between “sometimes” and “not uncommon” can be illustrated by applying them to the fact it snows in Santa Rosa once every ten years or so. An average lay person would likely agree that “sometimes” applies to such a ten year interval. On the other hand, it wouldn’t fit to say that snow is “not uncommon” in Santa Rosa. In other words, one could say: “It sometimes snows in Santa Rosa” but one would not likely say: “Snow in Santa Rosa is not uncommon.” This is so because “sometimes” typically means “now and then” or “occasionally.” (See Roget’s New Millennium Thesaurus, First Edition 2005 (v 1.1.1).) On the other hand, the phrase “not uncommon” or its equivalent, “not unusual,” 1 is used to describe things that, in common parlance, “happen everyday.” 2
In sum, by substituting “sometimes” for “not uncommon,” CALCRIM has fundamentally changed what the jurors are told about the possibility of witness misrecollection. Under the CALJIC “not uncommon” language the jurors are effectively admonished that mistakes are “not unusual” and happen on a regular basis. On the other hand, the CALCRIM “sometimes” language allows the jurors to conclude that mistakes only happen occasionally and that most of the time they can expect testimony about past events to be accurately remembered.
Apart from the Ex Post Facto/Due Process question of CALJIC vs. CALCRIM (see FORECITE 105.4 Inst 4; see also F 105.4 Inst 1) the CALCRIM formulation is inaccurate and may contribute to wrongful and unreliable convictions.
1 Roget’s New Millennium Thesaurus, First Edition 2005, includes “unusual” as a synonym for “uncommon.”
2 The fact that many people have these Tom Jones lyrics in their heads is relevant. It corroborates the fact that phrases such as “not uncommon” and “not unusual” are commonly used to describe a rate of frequency that can and does happen on a regular basis. Furthermore, these terms are prevalent in everyday usage. In December 2005, an internet “Google” search yielded 22,300,000 hits for “not uncommon” and 86,300,000 hits for “not unusual.”
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]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 105.4 Inst 4 Under Ex Post Facto/Due Process Principles CALJIC 2.21.1 Should Be Used In Place Of CALCRIM 105/226
*Modify CC 105, paragraph 3, sentence 3, as follows:
[Replace with CJ 2.21.1 sentence 2 and 3]
Points and Authorities
For crimes committed before the effective date of CALCRIM (January 1006), Ex Post Facto/Due Process principles should five the defendant the option of using CALJIC instructions which have been modified to the prosecution’s benefit by CALCRIM.
Application Of Ex Post Facto/Due Process Notice Principles To CALCRIM and CALJIC—It is true that, technically speaking, neither the CALJIC nor CALCRIM Committees are legislative bodies to which the Ex Post Facto Clause of the U.S. Constitution (Art. I, §9, clause 3) applies on its face. However, as a practical matter, many judges treat the standard instructions as statutory pronouncements which they dutifully follow without any meaningful consideration of alternative instructions. Moreover, the California Rules of Court “strongly encourage” the use of CALCRIM instructions. Rule 2.1050(e) (formerly Rule 855(e)).
Therefore, in cases where the trial judge applies the Rules of Court regarding CALCRIM as if they were binding statutory pronouncements, Ex Post Facto and/or Due Process principles should apply to crimes committed before January 1, 2006. (See generally Carmell v. Texas (2000) 529 US 513 [146 LEd2d 513; 120 SCt 1620] [Ex Post Facto]; Marks v. U.S. (1977) 430 US 188 [51 LEd2d 260; 97 SCt 990] [Due Process].)
NOTE: Effective Date Of CALCRIM—See CLARANET CALCRIM Forum, “Plain English Instruction; When Are They Effective” by Al Menaster.
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]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 105.4 Inst 5 (a & b) Witness Credibility: Inability To Cross-Examine Out-Of-Court Declarant’s Statements
*Add to CC 105 when appropriate:
Alternative a:
In evaluating whether to believe the out-of-court statements of _______ consider the fact that the defendant was unable to cross-examine [him] [her].
Cross-examination is a fundamental right, and its absence requires you to view the statements with special care.
Alternative b:
In considering how much weight, if any, to give to the out of court statement of ______________ [insert name of co-defendant], consider the fact that the defendant was not able to call ____________________ into court and cross-examine [him] [her]. In this regard, cross-examination is the principal means by which the believability of a witness and the truthfulness of [his] [her] testimony are tested.
[Source: Adapted from Davis v. Alaska (1974) 415 US 308, 316 [39 LEd2d 347; 94 SCt 1105].]
Points and Authorities
Out-of-court statements have been allowed even though the defendant did not have an opportunity to cross-examine the witness. (See e.g., People v. Fuentes (1998) 61 CA4th 956, 965 [statements not subject to cross-examination may be admissible if they fall within a firmly rooted hearsay exception].)
However, Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354] provides a basis for challenging admission of any testimonial hearsay as to which the defendant has been denied confrontation and the declarant is unavailable. This is so because there can be no dispute that the lack of cross-examination may affect the weight and credibility of the testimony. Cross-examination is the “greatest legal engine ever invented for the discovery of the truth.” (Lilly v. Virginia (1999) 527 US 116 [144 LEd2d 117; 119 SCt 1887, 1894] [footnotes and citations omitted].) It is “the time-honored process [that is] best suited to determine the trustworthiness of testimonial evidence.” (Watkins v. Sowders (1981) 449 US 341, 349 [66 LEd2d 549; 101 SCt 654]; see also Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354]; Ohio v. Roberts (1980) 448 US 56, 70 [65 LEd2d 597; 106 SCt 1121] [testimony given under oath and subject to cross-examination bears an “indicia of reliability” ; Kentucky v. Stincer (1987) 482 US 730, 747 [96 LEd2d 631; 107 SCt 2658] dissenting opinion [cross-examination is “primary means for assuring the reliability of testimony from adverse witnesses” ].) In other words, cross-examination is a fundamental right as well as a truth revealing process. (See U.S. v. Bagley (1985) 473 US 667 [87 LEd2d 481; 105 SCt 3375]; U.S. v. Cronic (1984) 466 US 648 [80 LEd2d 657; 104 SCt 2039]; Davis v. Alaska (1974) 415 US 308, 318 [39 LEd2d 347; 94 SCt 1105]; Smith v. Illinois (1968) 390 US 129, 131 [19 LEd2d 956; 88 SCt 748]; Brookhart v. Janis (1966) 384 US 1, 3 [16 LEd2d 314; 86 SCt 1245; Kelly v. State Bar (1991) 53 C3d 509, 514 [credibility of witness repudiating prior testimony is virtually impossible to evaluate in absence of cross-examination].)
Hence, testimonial hearsay statements should be excluded under Crawford when the declarant is unavailable and the defendant had no opportunity to confront the declarant.
However, when a statement is allowed into evidence without cross-examination, the jury should receive a “clear, firm prophylactic instruction highlighting [defendant’s] lack of any opportunity to cross-examine.” (See U.S. v. Zannino (1st Cir. 1990) 895 F2d 1, 8 fn 6; see also State v. Brown (1977) 549 SW2d 336 [citing McCormick on Evidence §19 for proposition that, on request, jury should be instructed to consider lack of cross-examination in weighing the evidentiary value of uncross-examined testimony]; 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].)
(See also FORECITE PG VII(C)(43) [Crawford Update].)
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.
CALJIC NOTE: See FORECITE F 2.20f.
F 105.4 Inst 6 Deletion Of Unnecessary Verbiage
*Modify CC 105, paragraph 3, sentence 2, as follows [deleted language is stricken]:
Consider whether the differences are important or not.
Points and Authorities
“Or not” is unnecessary verbiage.
Identification Of PartiesC See FORECITE F 100.2 Note 1.