SERIES 300 EVIDENCE
F 302 EVALUATING CONFLICTING EVIDENCE
TABLE OF CONTENTS
F 302 Inst 1 Jurors Not Obligated To Resolve Conflict In Evidence
F 302 Inst 2 (a-d) Witnesses Should Not Be Presumed To Be Truthful; Defense Should Be “Favored”
F 302 Inst 3 Jurors Not To Disregard Testimony Of “Any Witness” Based On Prejudice Or Bias
F 302 Inst 4 Testimony May Leave Jurors With A Reasonable Doubt
F 302 Inst 5 Single Witness Testimony: Applicability To Out-Of-Court Declarant
F 302 Inst 6 Jurors Not Required To Resolve Evidentiary Conflicts; Conflict May Leave Juror With A Reasonable Doubt
F 302 Inst 7 Jurors Do Not Have To Resolve An Evidentiary Conflict In Favor Of Either The Prosecution Or The Defense At All
F 302 NOTES
F 302 Note 1 Weighing Conflicting Testimony: Sua Sponte Duty To Instruct
F 302 Note 2 Failure To Give CJ 2.22 (Now CC 302): Prejudicial Error
Return to Series 300 Table of Contents.
F 302 Inst 1 Jurors Not Obligated To Resolve Conflict In Evidence
*Modify CC 302 sentence 1 as follows [added language is underlined; deleted language is stricken]:
Ifyou determine there is a conflict in the evidence, you must attempt to decide what evidence, if any, to believe [accept] [credit].
Points and Authorities
No Duty To Decide What The Facts Are—See FORECITE F 100.7 Inst 1.
“Accept Or Credit” As Preferable To “Believe.”—The term “believe” relates more to truthfulness than accuracy. Because accuracy must also be considered “accept” or “credit” are more correct. (See FORECITE F 105.1 Inst 6; F 105.1 Inst 10.)
Identification Of Parties—See FORECITE F 100.2 Note 1.
F 302 Inst 2 (a-d) Witnesses Should Not Be Presumed To Be Truthful
Alternative a:
*Delete CC 302 sentence 3:
On the other hand, do not disregard the testimony of the greater number of witnesses, or any witness, without a reason or because of prejudice or a desire to favor one side or the other.
Alternative b:
It is up to you to decide:
1. Whether or not to accept the testimony of any witness or witnesses;
2. Whether that testimony, in light of all the evidence, proves [the defendant guilty beyond a reasonable doubt] [every essential fact and element of the charge].
Alternative c:
It is up to you to decide what weight, if any, to give the testimony of any single witness or group of witnesses. Remember, however, that unless the weight of all the evidence overcomes the presumption of innocence you must find the defendant not guilty.
Alternative d:
It is up to you to decide what weight, if any, to give the testimony of any single witness or group of witnesses. Remember, however, that if the evidence fails to prove any essential fact of element of the offense beyond a reasonable doubt you must [vote] [find the defendant] not guilty.
Points and Authorities
Presumption of Truthfulness—Requiring the jury to accept testimony unless it has a “reason” for rejecting it gives that testimony an improper presumption of correctness. (See e.g., U.S. v. Maselli (6th Cir. 1976) 534 F2d 1197, 1202-03; State v. Percy (VT 1990) 595 A2d 248, 251.) In the case of prosecution witnesses such a presumption would undermine the presumption of innocence by requiring the jurors to accept the testimony unless the defendant disproves the testimony. (See FORECITE F 100.1 Inst 1; see also In re Winship (1970) 397 US 358 [90 SCt 1068; 25 LEd2d 368].)
See also, Witness Credibility: Propriety and Prejudicial Effect of Instruction to Jury in Federal Criminal Trial That Witnesses Are Presumed to Tell the Truth, 8 ALR Fed 319.
Defense Should Be “Favored”—Telling the jurors not to “favor one side over the other” also conflicts with the presumption of innocence which requires that the defense be favored unless the prosecution proves otherwise. (See Carella v. California (1989) 491 US 263, 265-66 [105 LEd2d 218; 109 SCt 2419]; Sandstrom v. Montana (1979) 442 US 510 [61 LEd2d 39; 99 SCt 2450].)
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 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 302 Inst 3 Jurors Not To Disregard Testimony Of “Any Witness” Based On Prejudice Or Bias
*Modify CC 302, sentence 3, as follows [deleted language is stricken]:
On the other hand, do not disregard the testimony of the greater number of witnesses, or any witness, without a reason or because of prejudice or a desire to favor one side or the other.
Points and Authorities
Improper Implication.—CALCRIM 302 improperly implies that the testimony of the greater number of witnesses should not be disregarded because of the greater number of witnesses, which is the opposite of the remainder of the instruction.
Improper Presumption Of Truthfulness.—See FORECITE F 302 Inst 2.
Presumption Of Prejudice Requires That The Defense Be “Favored.”—See FORECITE F 302 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]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CAVEAT: But see FORECITE F 302 Inst 1, Inst 2, Inst 4 and Inst 5.
RESEARCH NOTE Re: Improper Implication: See CALCRIM Warnings, CLARAWEB Forum.
F 302 Inst 4 Testimony May Leave Jurors With A Reasonable Doubt
*Modify CC 302, sentence 4 as follows [added language is underlined]:
What is important is whether the testimony or any other evidence convinces you or leaves you with a reasonable doubt, not just the number of witnesses who testify about a certain point.
Points and Authorities
By only addressing the convincing impact of the evidence CC 302 improperly implies a defense obligation to “convince” the jurors. (See FORECITE F 100.1 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 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 302 Inst 5 Single Witness Testimony: Applicability To Out-Of-Court Declarant
*Modify CC 302, when appropriate, as follows:
[Add “[or] out-of-court declarant” after “witness” or “witnesses” ]
Points and Authorities
See FORECITE F 105.1 Inst 9.
F 302 Inst 6 Jurors Not Required To Resolve Evidentiary Conflicts; Conflict May Leave Juror With A Reasonable Doubt
*Modify CC 302, sentence 1, as follows [added language is underlined; deleted language is stricken]:
If you determine there is see a conflict in the evidence, you must decide what evidence, if any, to believe the conflict does not necessarily have to be resolved in favor of one party or the other. Because the prosecution has the burden of proof, the defendant has no obligation to prove anything. If an unresolved conflict in the evidence leaves you with a reasonable doubt as to an essential fact or element required to be proven by the prosecution, then you must vote not guilty
Points and Authorities
Defendant Does Not Need To Prove Anything—See FORECITE F 100.1 Inst 1.
Conflict In Evidence May Leave Juror With A Reasonable Doubt—See FORECITE F 103.3 Inst 5.
See also FORECITE F 105.1 Inst 11.
Identification Of Parties.—See FORECITE F 100.2 Note 1.
FORECITE Constitutional Grounds 2.2, 4.2.
F 302 Inst 7 Jurors Do Not Have To Resolve An Evidentiary Conflict In Favor Of Either The Prosecution Or The Defense At All
*Modify CC 302 as follows [added language is underlined; deleted language is stricken]:
Alternative a:
If you determine there is see
a conflict in the evidence, you must decide what evidence, if any, to believe do not have to resolve that conflict [in favor of one party or the other] [to conform with either the prosecution’s or the defendant’s position]. Your view of the evidence may reflect a third option which is different from each of the parties’ positions.
Alternatively, you don’t need to resolve the conflict at all. Because the prosecution has the burden of proof, the defendant has no obligation to prove anything. If an unresolved conflict in the evidence leaves you with a reasonable doubt as to an essential fact or element required to be proven by the prosecution then you must vote not guilty.
Alternative b:
*Replace CC 302 with the following:
You don’t necessarily need to resolve any conflict you see in the evidence. Because the prosecution has the burden of proof, the defendant has no obligation to prove anything. If an unresolved conflict in the evidence leaves you with a reasonable doubt as to an essential fact or element required to be proven by the prosecution then you must vote not guilty. Alternatively, your view of the evidence may reflect a third option which is different from each of the parties’ positions.
Points and Authorities
See FORECITE F 100.1 Inst 1; F 100.7 Inst 1; F 103.3 Inst 5.
F 302 NOTES
F 302 Note 1 Weighing Conflicting Testimony: Sua Sponte Duty To Instruct
[See Brief Bank # B-923 and Opinion Bank # O-315for briefing and an unpublished opinion on this issue and prejudicial error.]
CALJIC NOTE: See FORECITE F 2.22 n1.
F 302 Note 2 Failure To Give CJ 2.22 (Now CC 302): Prejudicial Error
[See Brief Bank # B-923 and Opinion Bank # O-315for briefing and an unpublished opinion.]
CALJIC NOTE: See FORECITE F 2.22 n2.
