SERIES 300 EVIDENCE
F 316 ADDITIONAL INSTRUCTIONS ON WITNESS CREDIBILITYC OTHER CONDUCT
TABLE OF CONTENTS
F 316(& A) Inst 1 (a-c) Prior Felony: Preliminary Fact Determination
F 316(& A) Inst 2 Jury Must Consider Felony Conviction
F 316(& A) Inst 3 Jury To Decide The Weight, “If Any,” Of The Prior Conviction
F 316(¶ A) Inst 4 Defendant’s Testimony: Impeachment By Prior Conviction
F 316(¶ A) Inst 5 Credibility of Witness: Applicability To Out-Of-Court Statements
F 316(¶ A) Inst 6 Impeachment Of Defendant By Prior Conviction: Explanatory Instruction Regarding Defendant’s Failure To Reveal The Conviction On Direct Examination
F 316(¶ A) NOTES
F 316(¶ A) Note 1 Defendant’s Testimony: Impeachment By Prior Conviction — Ineffective Counsel For Failure To Request
F 316(¶ A) Note 2 Cautionary Instruction Regarding Impeachment By Prior Felony Conviction Not Required Sua Sponte
F 316(¶ A) Note 3 Uncharged Act: Relevance Must Be Specified When Case Also Involves Impeachment With Prior
F 316(¶ A) Note 4 Applicability To Prosecution Witness
F 316(¶ A) Note 5 Moral Turpitude Finding Must Be Made By Judge
F 316(¶ A) Note 6 Prejudicial Impact Of Prior Conviction Used To Impeach Defendant’s Testimony
F 316(¶ A) Note 7 Moral Turpitude Properly Defined In Terms Of “Readiness To Do Evil”
F 316(¶ B) Inst 1 (a-c) Prior Criminal Conduct With Or Without Conviction: Preliminary Fact Determination
F 316(¶ B) Inst 2 Jury Must Consider Prior Criminal Conduct
F 316(¶ B) Inst 3 Jury To Decide The Weight, “If Any,” Of The Prior Criminal Conduct
F 316(¶ B) Inst 4 Instruction Should Be Limited To Misdemeanor Conduct
F 316(¶ B) NOTES
F 316(¶ B) Note 1 CALCRIM “Authority” Erroneously Limits Wheeler To Criminal Misconduct
Return to Series 300 Table of Contents.
F 316(& A) Inst 1 (a-c) Prior Felony: Preliminary Fact Determination
Alternative a:
*Modify CC 316, Alternative A, sentence 1 as follows [added language is underlined]:
[If you find it more likely than not that a witness has been convicted of a felony, you may consider that fact [only] in evaluating the credibility of the witness’s testimony.
Alternative b [Evidence offered by prosecution: CALCRIM 224 and 376 Format—Essential Fact Must Be Proved Beyond A Reasonable Doubt]:
The prosecution has presented evidence regarding an alleged prior conviction suffered by defense witness _______________ <name of defense witness.>
You must not consider this evidence for any purpose unless the prosecution has proved the following preliminary fact by a preponderance of the evidence:
That _______________<name of defense witness> has been convicted of a felony.
A fact is proved by a preponderance of the evidence if you find that it is more likely than not that the fact is true. This is a lesser burden of proof than proof beyond a reasonable doubt.
Unless [all of you] find this preliminary fact to exist you must disregard, for all purposes, [the testimony of witness ___________<name of witness>][any evidence of ___________________].
However, you must not rely on [_____’s <name of witness> testimony] [the ____________<e.g., blood> evidence] to find an essential fact or element of the charged offense[s] unless the prosecution has proved [the above preliminary fact beyond a reasonable doubt] [beyond a reasonable doubt that _______________ <name of defense witness> has been convicted of a felony.]
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.
Alternative c [Evidence offered by the defense]:
The defendant has presented evidence regarding an alleged prior conviction suffered by defense witness _______________ <name of defense witness>.Before you may consider this evidence you must first make a preliminary finding that:
It more likely than not that _______________ <name of defense witness> has been convicted of a felony.
Any juror who has made this finding, [may] [must] consider [the testimony of witness ___________<name of witness]> [any evidence of _________________] in evaluating whether the prosecution has met its burden of proving the defendant guilty beyond a reasonable doubt.
The preliminary finding requirement applies only to the evidence regarding ________________ [and any other evidence requiring preliminary fact findings as stated elsewhere in these in these instructions]. All other evidence is to be fully considered without any preliminary fact findings.
The preliminary fact finding discussed in this instruction does not alter or lessen the presumption of innocence or the prosecution’s burden to prove the defendant guilty 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
Commission Of Felony As A Preliminary Fact.—Since the relevance of the evidence depends on a finding that the defendant committed the felony that finding is a preliminary fact under EC 403.
Propriety Of Preliminary Fact Instruction.—See EC 403; see also FORECITE F 319 Inst 1.
Preliminary Fact Must Be Proven Beyond A Reasonable Doubt Vis a Vis Essential Facts And Elements Of The Offense.—The final paragraph of Alternative b, regarding proof of essential facts, is adapted from CALCRIM 224 and 375. (See also FORECITE F 103.2 Inst 1; FORECITE CG 2.2.)
Whether The Jurors “Must“ Consider The Evidence After Finding The Preliminary Fact.—See FORECITE F 105.2 Inst 1.
Propriety Of Juror Unanimity As To Preliminary Facts.—See FORECITE F 3500.3.1.
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 5.7 [Preliminary Facts]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
Unanimity Use Note.—If unanimity is not required then the instructions should be directed towards individual jurors. Those findings preliminary fact can consider the evidence, those not finding it cannot. (See generally FORECITE F 100.7 Inst 2.)
CAVEAT 1: Benefits And Risks Of Preliminary Fact Instruction.—Because they involve different standards of proof, preliminary fact instructions under EC 403 require careful strategic consideration. (See CAVEAT 1 in FORECITE F 319 Inst 1.)
CAVEAT 2: Burden Of Proof In EC 403 Instructions.—See CAVEAT 2 in FORECITE F 319 Inst 1.
F 316(& A) Inst 2 Jury Must Consider Felony Conviction
*Modify CC 316, Alternative A, sentence 1 as follows [deleted language is stricken]:
[If you find that a witness has been convicted of a felony, you may consider that fact [only] in evaluating the credibility of the witness’s testimony.
Points and Authorities
By using the term “may“ instead of “must,“ CC 316 effectively informs the jury to consider the evidence. If the prior felony was offered by the defense, it would violate the defendant’s constitutional rights for the jury to not at least consider it.
It is a fundamental tenet of the federal constitutional rights to fair trial by jury and due process (5th, 6th and 14th Amendments) that the jury consider exculpatory evidence upon which the defendant relies to leave the jury with a reasonable doubt as to any element of the charge. (See e.g., Martin v. Ohio (1987) 480 US 228 [94 LEd2d 267; 107 SCt 1098] [instruction that jury could not consider self-defense evidence in determining whether there was a reasonable doubt about the State’s case would violate In re Winship (1970) 397 US 358 [25 LEd2d 368; 90 SCt 1068]]; Rock v. Arkansas (1987) 483 US 44 [97 LEd2d 37; 107 SCt 2704] [domestic rule of evidence may not be used to exclude crucial defense evidence]; Chambers v. Mississippi (1973) 410 US 284 [35 LEd2d 297; 93 SCt 1038]; People v. Bobo (1990) 229 CA3d 1417, 1442 [legislature cannot deny defendant an opportunity to prove he or she did not possess a statutorily required mental state]; see also FORECITE PG VII(C)(28).)
Accordingly, CC 316 is defective in that it informs the jury that consideration of a witness’s criminal conduct or prior conviction is permissive (“you may consider…“ ) rather than mandatory. To assure the defendant’s constitutional right to consideration of all the evidence, the jury should be instructed that it “must“ consider evidence of the witness’ criminal conduct or prior conviction. (See Commonwealth v. Perry (MA 1982) 433 NE2d 446 [385 Mass. 639, 648-49] [jury should be instructed to consider evidence of intoxication in determining degree of criminal culpability]; Walls v. State (1951) 63 SE2d 437, 438; Wisconsin Jury Instructions—Criminal (1998 ed.) WIS JI-Criminal No. 765 [“You must consider this evidence [of voluntary intoxication] in deciding whether the defendant acted with the … mental state … required for this offense“ ]; but cf. State v. Foster (1995) 528 NW2d 22 [191 Wis.2d 14] [standard instruction, “you must consider evidence that [defendant] was intoxicated“ improperly suggested that the defendant really was intoxicated—jury should have been told that it “must consider the evidence regarding whether the defendant was intoxicated at the time of the alleged offense“ ].)
(See also FORECITE F 3426 Inst Inst 2, F 4.21e.)
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 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.
CALJIC NOTE: See FORECITE F 4.21.2b.
F 316(& A) Inst 3 Jury To Decide The Weight, “If Any,” Of The Prior Conviction
*Modify CC 316, Alternative A, sentence 3 as follows [added language is underlined]:
It is up to you to decide the weight, if any, of that fact and whether that fact makes the witness less believable.
Points and Authorities
See FORECITE F 105.1 Inst 6.
F 316(¶ A) Inst4 Defendant’s Testimony: Impeachment By Prior Conviction
See FORECITE F 2.23a.
F 316(¶ A) Inst 5 Credibility of Witness: Applicability To Out-Of-Court Statements
See FORECITE F 2.20b.
F 316(¶ A) Inst 6 Impeachment Of Defendant By Prior Conviction: Explanatory Instruction Regarding Defendant’s Failure To Reveal The Conviction On Direct Examination
See FORECITE F 2.23c.
F 316(¶ A) NOTES
F 316(¶ A) Note 1 Defendant’s Testimony: Impeachment By Prior Conviction — Ineffective Counsel For Failure To Request
It is the duty of trial counsel to consider the necessity of such this instruction and request it if necessary. The failure of counsel to make such a request has been held to be ineffective assistance of counsel requiring reversal of the defendant’s conviction. (See People v. Olano UNPUBLISHED, A076812.)
F 316(¶ A) Note 2 Cautionary Instruction Regarding Impeachment By Prior Felony Conviction Not Required Sua Sponte
See People v. Hernandez (2004) 33 C4th 1040, 1051-52; see also CALCRIM 316, Bench Notes.
[See Brief Bank # B-884 for briefing on this issue.]
F 316(¶ A) Note 3 Uncharged Act: Relevance Must Be Specified When Case Also Involves Impeachment With Prior.
When evidence of a prior conviction has been admitted for impeachment purposes and other-crimes evidence also has been admitted pursuant to EC 1101(b), the trial court should instruct the jury as to which evidence is referred to in the CJ 2.50 instruction, in order to avoid confusion. (People v. Rollo (1977) 20 C3d 109, 123 fn 6; see also People v. Catlin (2001) 26 C4th 81, 147.)
F 316(¶ A) Note 4 Applicability To Prosecution Witness
Although CALCRIM 316 deals specifically with prior felony convictions, without modification, that instruction may be of less benefit to the defense because it instructs the jury to consider the prior felony conviction “only” on credibility. (See People v. Horning (2004) 34 C4th 871, 911.) Accordingly, it may be appropriate to request that CC 105 address this issue in addition to, or instead of, CC 316. (CC 105 does provide such a prior felony conviction factor.)
See FORECITE F 2.20 n16.
F 316(¶ A) Note 5 Moral Turpitude Finding Must Be Made By Judge
See People v. Gray (2007) 158 CA4th 635.
F 316(¶ A) Note 6 Prejudicial Impact Of Prior Conviction Used To Impeach Defendant’s Testimony
“. . . [W]henever a jury is informed of a defendant’s convictions, even for the limited purpose of impeaching his credibility, a danger exists that some jurors also will view that evidence as showing a defendant’s propensity to commit crimes despite having been instructed not to do so.” (People v. Gray (2007) 158 CA4th 635, 642 [citing People v. Rollo (1977) 20 C3d 109, 116].) Thus the judge may exclude such evidence as so prejudicial that it outweighs its evidentiary value per EC 352. (Gray, supra.)
F 316(¶ A) Note 7 Moral Turpitude Properly Defined In Terms Of “Readiness To Do Evil”
The following definition of moral turpitude was approved in People v. Mahoney UNPUB (10/31/2011, G044328) 2011 Cal. App. Unpub. LEXIS 8340, 28:
Moral turpitude constitutes a readiness to do evil, i.e., an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen or to society in general, contrary to accepted and customary rule of right and duty between people.
See also People v. Douangpanya UNPUB’D (5/11/2010, C061501) 184 CA4th 606, 612-13.
F 316(& B) Inst 1 (a-c) Prior Criminal Conduct With Or Without Conviction: Preliminary Fact Determination
Alternative a:
*Modify CC 316, Alternative B, sentence 1 as follows [added language is underlined]:
[If you find it more likely than not that a witness committed a the crime or other misconduct of _____________ <insert alleged misdemeanor> as defined elsewhere in these instructions, you may consider that fact [only] in evaluating the credibility of the witness’s testimony.
Alternative b [Evidence offered by prosecution: CALCRIM 224 and 376 Format—Essential Fact Must Be Proved Beyond A Reasonable Doubt]:
The prosecution has presented evidence regarding an alleged commission of _____________ <insert alleged misdemeanor>, a misdemeanor by defense witness _______________ <name of defense witness>.
You must not consider this evidence for any purpose unless the prosecution has proved the following preliminary facts by a preponderance of the evidence:
_______________<insert elements of alleged misdemeanor.>
A fact is proved by a preponderance of the evidence if you find that it is more likely than not that the fact is true. This is a lesser burden of proof than proof beyond a reasonable doubt.
Unless [all of you] find these preliminary facts to exist you must disregard, for all purposes, [the testimony of witness ___________<name of witness>] [any evidence of the alleged misdemeanor].
If you [all] find the above preliminary facts to exist then you [may] [must] consider the alleged misdemeanor in evaluating the credibility of witness ___________’s <name of witness> testimony.
However, you must not rely on [_____’s <name of witness> testimony] [the ____________<e.g., blood> evidence] to find an essential fact or element of the charged offense[s] unless the prosecution has proved [the above preliminary fact beyond a reasonable doubt] [beyond a reasonable doubt that _______________ <name of defense witness> has been convicted of a felony.]
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
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
Commission Of Misdemeanor As A Preliminary Fact – Since the relevance of the evidence depends on a finding that the witness committed the misconduct constituting a misdemeanor (People v. Wheeler (1992) 4 C4th 284, 300) that finding is a preliminary fact under EC 403.
Propriety Of Preliminary Fact Instruction – See EC 403; see also FORECITE F 319 Inst 1.
Preliminary Fact Must Be Proven Beyond A Reasonable Doubt Vis a Vis Essential Facts And Elements Of The Offense – The final paragraph of Alternative b, regarding proof of essential facts, is adapted from CALCRIM 224 and 375. (See also FORECITE F 103.2 Inst 1; FORECITE CG 2.2.)
Whether The Jurors “Must” Consider The Evidence After Finding The Preliminary Fact – See FORECITE F 105.2 Inst 1.
Propriety Of Juror Unanimity As To Preliminary Facts – See FORECITE F 3500.3.1.
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 5.7 [Preliminary Facts]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
Unanimity Use Note – If unanimity is not required then the instructions should be directed towards individual jurors. Those findings preliminary fact can consider the evidence, those not finding it cannot. (See generally FORECITE F 100.7 Inst 2.)
CAVEAT 1: Benefits And Risks Of Preliminary Fact Instruction – Because they involve different standards of proof, preliminary fact instructions under EC 403 require careful strategic consideration. (See CAVEAT 1 in FORECITE F 319 Inst 1.)
CAVEAT 2: Burden Of Proof In EC 403 Instructions – See CAVEAT 2 in FORECITE F 319 Inst 1.
F 316(& B) Inst 2 Jury Must Consider Prior Criminal Conduct
*Modify CC 316, Alternative B, sentence 1 as follows [deleted language is stricken]:
[If you find that a witness has committed a crime or other misconduct, you may consider that fact [only] in evaluating the credibility of the witness’s testimony.
Points and Authorities
See FORECITE F 316(& A) Inst 2.
F 316(& A) Inst 3 Jury To Decide The Weight, “If Any,” Of The Prior Conviction
*Modify CC 316, Alternative B, sentence 3 as follows [added language is underlined]:
It is up to you to decide the weight, if any, of that fact and whether that fact makes the witness less believable.]
Points and Authorities
See FORECITE F 316(& A) Inst 3.
F 316(¶ B) Inst 4 Instruction Should Be Limited To Misdemeanor Conduct
*Modify CC 316 as follows [added language is underlined; deleted language is stricken]:
[If you find that a witness has committed a crime or other misconduct the misdemeanor of _____________ <insert alleged misdemeanor> as defined elsewhere in these instructions, you may consider that fact [only] in evaluating the credibility of the witness’s testimony. The fact that a witness may have committed a crime or other misconduct does not necessarily destroy or impair a witness’s credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable.]
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
CC 316(¶ B) Should Be Limited To “Impeaching Misdemeanor Misconduct” – CC 316 erroneously fails to limit the jurors’ consideration of misconduct – which did not result in a felony conviction – to “impeaching misdemeanor misconduct . . . .” (People v. Wheeler (1992) 4 C4th 284, 300 fn 14.)
Commission Of Misdemeanor As Preliminary Fact – See FORECITE F 316(¶ B) 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 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.
F 316(¶ B) NOTES
F 316(¶ A) Note 1 Defendant’s Testimony: Impeachment By Prior Conviction — Ineffective Counsel For Failure To Request
CC 316 correctly applies to both prior crimes and “other misconduct.” However, the CALCRIM “Authority” erroneously suggests that People v. Wheeler (1993) 4 C4th 284 only applies to “misdemeanor” conduct. Wheeler states that the jurors may consider both “misdemeanor” conduct and “non-criminal” misconduct.