SERIES 100 PRETRIAL INSTRUCTIONS
F 105.5 WITNESS CHARACTER FOR TRUTHFULNESS
F 105.6 WITNESS NO LONGER REMEMBERS [RESERVED]
F 105.7 WITNESS DELIBERATELY LIED
F 105.8 EVIDENCE: PRELIMINARY FACTS
TABLE OF CONTENTS
F 105.5 WITNESS CHARACTER FOR TRUTHFULNESS
F 105.5 Inst 1 Character For Truth And/Or Accuracy
F 105.5 Inst 2 Improper To Presume Truthfulness From Lack Of Discussion
F 105.6 WITNESS NO LONGER REMEMBERS [RESERVED]
F 105.7 WITNESS DELIBERATELY LIED
F 105.7 Inst 1 Witness Inaccuracy As To One Fact Relevant To Other Facts
F 105.8 EVIDENCE: PRELIMINARY FACTS
F 105.8 Inst 1 (a & b) Jury Must Only Consider Testimony Based On The Personal Knowledge Of A Witness
F 105.8 Inst 2 Witness Credibility: Witness Capacity To Perceive And Recollect As Preliminary Finding Of Fact
F 105.8 Inst 3 Witness Credibility: Pretrial Silence As To Exculpatory Evidence—Preliminary Facts
Return to Series 100 Table of Contents.
F 105.5 Witness Character For Truthfulness
F 105.5 Inst 1 Character For Truth And/Or Accuracy
*Modify CC 105, paragraph 4, as follows [added language is underlined]:
[If the evidence establishes that a witness’s character for truthfulness [and/or accuracy] has not been discussed among the people who know him or her, you may conclude from the lack of discussion that the witness’s character for truthfulness [and/or accuracy] is good.]
Points and Authorities
The credibility of a witness depends on both the truth and accuracy of the testimony. (See FORECITE F 105.3.10 Inst 1.)
Identification Of Parties—See FORECITE F 100.2 Note 1.
F 105.5 Inst 2 Improper To Presume Truthfulness From Lack Of Discussion
[Delete CC 105, Paragraph 4 re: Inference of good character from lack of discussion]
Points and Authorities
The Bench Notes to CALCRIM 105 cite People v. Adams (1902) 137 C 580, 582 as to proof of character by negative evidence. However, Adams predated such cases as Leary v. U.S. (1969) 395 US 6, 36 [89 SCt 1532; 23 LEd2d 57], Ulster County Court v. Allen (1979) 442 US 140, 157 [99 SCt 2213; 60 LEd2d 777] and Francis v. Franklin (1979) 471 US 307, 314-15 [105 SCt 1965; 85 LEd2d 344]. Those cases held that: “[A] criminal statutory presumption must be regarded as ‘irrational’ or ‘arbitrary,‘ and hence unconstitutional unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact upon which it is made to depend. [Footnote omitted].” (Leary v. U.S. (1969) 395 US 6, 36 [89 SCt 1532; 23 LEd2d 57]; see also Ulster County, 442 US at 165-66.) It is not more likely than not that a person is of good character if his or her character has not been discussed by those who know him or her. Hence, the presumption in CALCRIM 105 should be deleted.
Moreover, even if the bracketed language is not an unconstitutional presumption, it unfairly bolsters the prosecution’s case when there is no evidence presented on the question of whether or not the witness’s character for truthfulness has been discussed. Therefore, the instruction should only be given when there is affirmative evidence establishing that the witness’s character has “not been discussed among the persons who know him or her.”
NOTE: See also CLARAWEB Forums, A CALCRIM Core Set With Warnings (11/9/2005).
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 2.3 [Prosecution’s Burden Of Proof: Irrational Permissive Inference]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 105.6 Witness No Longer Remembers [Reserved]
F 105.7 Witness Deliberately Lied
F 105.7 Inst 1 Witness Inaccuracy As To One Fact Relevant To Other Facts
*Modify CC 105, paragraph 6, as follows [added language is underlined; deleted language is stricken]:
[If you any juror decides that a witness deliberately lied inaccurately testified about something significant in this case, you he or she should consider not believing anything that witness says. Or, if you any juror thinks the witness lied was inaccurate about some things, but told the truth was accurate about others, you that juror may simply accept the part that you he or she thinks is true accurate and ignore the rest.]
Points and Authorities
Mistaken Perception Or Recollection Of Something Significant Is A Basis For Disbelieving A Witness’s Testimony In Whole Or Part – The final paragraph of CC 105 [and CC 226] informs the jurors as follows:
[If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says. Or, if you think the witness 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.]
Thus, this paragraph specifically suggests to the jurors a logical conclusion which the jurors might reach based on their evaluation of the particular factors listed in the instruction. (E.g., [“Did other evidence prove or disprove any act about which the witness testified?”]; [“Did the witness admit to being untruthful?”]; [“What is the witness’s character for truthfulness?”], etc.) The same logic should also apply to situations where the jurors decide that the witness was mistaken “about something significant in the case. . . .” A significant mistake by the witness also relates to particular factors included in the instruction (e.g., ability of the witness to perceive and/or remember). If the jurors conclude that the witness’s perception or recollection was significantly impaired then the jurors could logically conclude that all or part of the witness’s testimony should not be believed in the same manner as when a witness has lied about something significant.
People v. Vang (2009) 171 CA4th 1120 erroneously concluded that a witness who is mistaken about something significant is different from a witness who has lied because experience has taught that a deliberate liar cannot be trusted. In fact, experience has also taught that one who misperceived or misremembered something significant about a past event should also be mistrusted as to other perceptions and recollections of the event.
Vang also erroneously asserts that there is “no known authority in support of applying the last paragraph of CC 105 and CC 226 to witness’s who were simply mistaken about a significant fact. In so doing, the Vang court ignored the fact that along with sincerity, perception and memory are among the central testimonial capacities which relate to witness credibility. (See Imwinkelreid and Hallahan, California Evidence Code Annotated (2008) §780, Practice Commentary.) It is an essential function of the trier of fact to decide “whether the witness’s perceptions and recollections are credible. [Citation.]” (People v. Anderson (2001) 25 C4th 543, 574-75.) Thus, as with a witness who the jurors decide deliberately lied, a witness who the jury decides did not credibly perceive or remember something significant may rationally be disbelieved in whole or part.
Inaccuracy: See FORECITE F 105.3.10 Inst 1.
Individual Juror: See FORECITE F 100.7 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 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 105.8 Evidence: Preliminary Facts
F 105.8 Inst 1 (a & b) Jury Must Only Consider Testimony Based On The Personal Knowledge Of A Witness
*Add to CC 105:
Alternative a:
The prosecution has the burden of proving it more likely than not that [the testimony of ____________ <name of witness> regarding _____________ <testimony at issue> was based on _______________’s <name of witness> personal knowledge]. You must [disregard] [not consider] the testimony of ____________ <name of witness> unless you have made the required finding as to (his/her) personal knowledge.
To be based on personal knowledge, the testimony must be a present recollection of an impression derived from the exercise of the witness’s own senses.
Alternative b:
The court has permitted a number of witnesses to testify to their understanding of events, intentions, motivations and other matters related to the case. You may only consider this testimony if you find that it was a present recollection of an impression derived from the exercise of the witness’s own senses. You must not consider any testimony which is based upon speculation or intuition.
Points and Authorities
Preliminary Fact Instruction— See FORECITE F 319 Inst 1.
Definition Of Personal Knowledge—See People v. Lewis (2001) 26 C4th 334, 356.
Essential Fact—This instruction is required by the Due Process Clause of the federal constitution (5th and 14th Amendments) which protects the accused against conviction except upon proof beyond a reasonable doubt of every fact and element necessary to constitute the crime with which he is charged. (In re Winship (1970) 397 US 358, 364 [90 SCt 1068; 25 LEd2d 368]; see also Fiore v. White (2001) 531 US 225 [121 SCt 712; 148 LEd2d 629]; Apprendi v. New Jersey (2000) 530 US 466 [120 SCt 2348; 147 LEd2d 435]; U.S. v. Gaudin (1995) 515 US 506, 514 [115 SCt 2309; 132 LEd2d 444]; Sullivan v. Louisiana (1993) 508 US 275, 278-81 [113 SCt 2078; 124 LEd2d 182].)
“If the Sixth Amendment right to have a jury decide guilt and innocence means anything [citation], it means that the facts essential to conviction must be proven beyond the jury’s reasonable doubt … A jury verdict, if based on an instruction that allows it to convict without properly finding the facts supporting each element of the crime, is error.” (U.S. v. Voss (8th Cir. 1986) 787 F2d 393, 398; see also Sandstrom v. Montana (1979) 442 US 510 [99 SCt 2450; 61 LEd2d 39]; Krucheck v. State (WY 1983) 671 P2d 1222, 1224-25.)
See also CALCRIM 376; CALCRIM 1191.
Juror Unanimity As To Preliminary Fact— See FORECITE F 319 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 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
CAVEATS: See FORECITE F 319 Inst 1.
CALJIC NOTE: See FORECITE F 2.20l.
F 105.8 Inst 2 Witness Credibility: Witness Capacity To Perceive And Recollect As Preliminary Finding Of Fact
*Add to CC 105:
The prosecution has the burden of proving it more likely than not that witness __________ <name of witness> had the capacity to [perceive] [see] [hear] the matters about which [he] [she] testified. If you [all] find that the prosecution has met this burden, you may consider the testimony of witness ___________<name of witness> in your deliberations.
However, you may not rely on witness __________ <name of witness>, in whole or part, to find an essential fact or element of the charge unless the prosecution has proven the capacity of the witness to [perceive] [see] [hear] beyond a reasonable doubt.
Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.
Points and Authorities
Preliminary Fact—Under EC 403(c)(1), the capacity of a witness to perceive and recollect is a preliminary fact upon which instruction may be appropriate, if requested. (See People v. Lewis (2001) 26 C4th 334, 361-363; see also FORECITE F 319 Inst 1.)
Essential Fact— See FORECITE F 105.8 Inst 1.
Juror Unanimity Re: Preliminary Facts—See FORECITE F 319 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 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.
CAVEAT Re: Burden Of Proof—See FORECITE F 319 Inst 1.
CAVEAT Re: Benefits And Risks Of (EC 403) Preliminary Fact Instruction—See FORECITE F 319 Inst 1.
CALJIC NOTE: See FORECITE F 2.20m.
F 105.8 Inst 3 Witness Credibility: Pretrial Silence As To Exculpatory Evidence C Preliminary Facts
Before you may consider _______________’s <name of witness> testimony you must find it more likely than not that:
1. _______________ <name of witness> knew that charges had been filed against the defendant in this case;
AND
2. Knew sufficient detail about the charges so that he realized the information (he/she) had was exculpatory as to the defendant;
AND
3. Had reason to make the information available to the authorities;
AND
4. Was familiar with the means of reporting the information to the authorities;
AND
5. Was not asked to refrain from reporting the information by the defendant or (his/her) counsel.
Points and Authorities
The failure of a defense witness to come forward with exculpatory evidence as to the defendant before trial may be admitted as bearing on the credibility of the witness. (People v. Tauber (1996) 49 CA4th 518; but see Jefferson, Cal. Evidence Benchbook (2d ed. 1990 supp., §§28.1, 28.9.) However, the relevance of such pretrial silence is dependent on proof of preliminary facts, such as whether the witness knew the charges were pending against the defendant in sufficient detail to know that the information was exculpatory, that the witness had reason to make the information available, that the witness was familiar with means of reporting it to the authorities, and that the defendant or his lawyer, or both, did not ask the witness to refrain from coming forward. (See People v. Ratliff (1987) 189 CA3d 696, 700-01.) Tauber concluded that the Ratliff foundational criteria were “too restrictive“ and held that pretrial silence is admissible if there is substantial evidence that the witness was aware before trial of information that he understood tended to exculpate one who had been charged with a crime.
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 4.5 [Right To Present Evidence And Fair Opportunity To Defend]
FORECITE CG 5.7 [Preliminary Facts]
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 2.20 n4.