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SERIES 200 POST-TRIAL: INTRODUCTORY

F 226.4 CONFLICTS AND INCONSISTENCY IN TESTIMONY
F 226.5 WITNESS CHARACTER FOR TRUTHFULNESS
F 226.6 WITNESS NO LONGER REMEMBERS [RESERVED]
F 226.7 WITNESS DELIBERATELY LIED
F 226.8 EVIDENCE: PRELIMINARY FACTS

TABLE OF CONTENTS
F 226.4 CONFLICTS AND INCONSISTENCY IN TESTIMONY
F 226.4 Inst 1 (a-c) Telling The Jurors That Witnesses “Sometimes Forget” Is Inaccurate And Promotes Unreliable Criminal Convictions
F 226.4 Inst 2 (a & b) The CALCRIM Formulation Fails To Precisely Address Honest Misrecollection
F 226.4 Inst 3 (a & b) Telling Jurors That Witnesses “Sometimes” Misremember Is Inaccurate And Promotes Unreliable Criminal Convictions
F 226.4 Inst 4 Under Ex Post Facto/Due Process Principles CALJIC 2.21.1 Should Be Used In Place Of CALCRIM 105/226
F 226.4 Inst 5 (a & b) Witness Credibility: Inability To Cross-Examine Out-Of-Court Declarant’s Statements
F 226.4 Inst 6 Deletion Of Unnecessary Verbiage

F 226.5 WITNESS CHARACTER FOR TRUTHFULNESS
F 226.5 Inst 1 Character For Truth And/Or Accuracy
F 226.5 Inst 2 Improper To Presume Truthfulness From Lack Of Discussion

F 226.6 WITNESS NO LONGER REMEMBERS [RESERVED]

F 226.7 WITNESS DELIBERATELY LIED
F 226.7 Inst 1 Witness Inaccuracy As To One Fact Relevant To Other Facts

F 226.8 EVIDENCE: PRELIMINARY FACTS
F 226.8 Inst 1 (a & b) Jury Must Only Consider Testimony Based On The Personal Knowledge Of A Witness
F 226.8 Inst 2 Witness Credibility: Witness Capacity To Perceive And Recollect As Preliminary Finding Of Fact

Return to Series 200 Table of Contents.


F 226.4 CONFLICTS AND INCONSISTENCY IN TESTIMONY

F 226.4 Inst 1 (a-c) Telling The Jurors That Witnesses “Sometimes Forget” Is Inaccurate And Promotes Unreliable Criminal Convictions

Alternative a:

*Modify CC 226, 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 226, paragraph 3, sentence 3, as follows [added language is underlined; deleted language is stricken]:

It is not unusual for people sometimes honestly toforget things or make mistakes about what they remember.

Points and Authorities

See FORECITE F 105.4 Inst 1 (a-c).


F 226.4 Inst 2 (a & b) The CALCRIM Formulation Fails To Precisely Address Honest Misrecollection

Alternative a:

[Replace CC 226, paragraph 3, sentence 3 with CJ 2.21.1 (October 2005 Edition).]

Alternative b:

*Modify CC 226, 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

See FORECITE F 105.4 Inst 2 (a and b).


F 226.4 Inst 3 (a and b) Telling Jurors That Witnesses “Sometimes” Misremember Is Inaccurate And Promotes Unreliable Criminal Convictions

Alternative a:

*Modify CC 226, 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

See FORECITE F 105.4 Inst 3 (a and b).


F 226.4 Inst 4 Under Ex Post Facto/Due Process Principles CALJIC 2.21.1 Should Be Used In Place Of CALCRIM 105/226

*Modify CC 226, paragraph 3, sentence 3 as follows:

[Replace with CJ 2.21.1 sentence 2 and 3]

Points and Authorities

See FORECITE F 105.4 Inst 4.


F 226.4 Inst 5 (a & b) Witness Credibility: Inability To Cross-Examine Out-Of-Court Declarant’s Statements

See FORECITE F 105.4 Inst 2 (a and b).


F 226.4 Inst 6 Deletion Of Unnecessary Verbiage

See FORECITE F 105.4 Inst 1.


WITNESS CHARACTER FOR TRUTHFULNESS

F 226.5 Inst 1 Character For Truth And/Or Accuracy

See FORECITE F 105.5 Inst 1.


F 226.5 Inst 2 Improper To Presume Truthfulness From Lack Of Discussion

See FORECITE F 105.5 Inst 2.


F 226.6 WITNESS NO LONGER REMEMBERS [RESERVED]


F 226.7 WITNESS DELIBERATELY LIED

F 226.7 Inst 1 Witness Inaccuracy As To One Fact Relevant To Other Facts

See FORECITE F 105.7 Inst 1.


F 226.8 EVIDENCE: PRELIMINARY FACTS

F 226.8 Inst 1 (a and b) Jury Must Only Consider Testimony Based On The Personal Knowledge Of A Witness

See FORECITE F 105.8 Inst 1 (a and b).


F 226.8 Inst 2 Witness Credibility: Witness Capacity To Perceive And Recollect As Preliminary Finding Of Fact

See FORECITE F 105.8 Inst 2.

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