SERIES 300 EVIDENCE
F 318 PRIOR STATEMENTS AD EVIDENCE
TABLE OF CONTENTS
F 318 Inst 1 Witness Evaluation Should Focus On Truth And Accuracy
F 318 Inst 2 (a-c) Preliminary Factual Finding As To Timing Of Prior Consistent Statement
F 318 Inst 3 (a-c) Prior Consistent Or Inconsistent Statements: If Witness No Longer Remembers Events, Then Jury Should Disregard Extrajudicial Statements Regarding Those Events
F 318 Note
F 318 Note 1 Prior Inconsistent Statement (EC 1235): Only Admissible As To Witnesses Who Testify At Trial
F 318 Note 2 Prior Statements When Witness Claims to No Longer Remember
Return to Series 300 Table of Contents.
F 318 Inst 1 Witness Evaluation Should Focus On Truth And Accuracy
*Modify CC 318, # 1, as follows [added language is underlined; deleted language is stricken]:
1. To evaluate whether the witness’s testimony in court is believable truthful and accurate;
Points and Authorities
See FORECITE F 105.3.10 Inst 1.
F 318 Inst 2(a-c) Preliminary Factual Finding As To Timing Of Prior Consistent Statement
Alternative a:
*Add to CC 318:
You must disregard _______________’s <name of witness> statement that _______________ <describe prior consistent statement> unless you find it more likely than not that (he/she) made the statement before _______________ <describe alleged bias or motive to fabricate>.
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 _______________’s <name of witness> statement that _______________ <describe prior consistent statement>.
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 _______________’s <name of witness> [alleged] statement was made before _______________ <describe alleged bias or motive to fabricate>.
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_________________].
If you [all] find the above preliminary fact to exist then you [may] [must] consider [the testimony of witness ___________<name of witness>] [any evidence of__________________] in your deliberations.
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 _______________’s [alleged] statement was made before _______________ <describe alleged bias or motive to fabricate>.]
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 _______________’s <name of witness> statement that _______________ <describe prior consistent statement>. Before you may consider this evidence you must first make a preliminary finding that:
It more likely than not that _______________’s <name of witness> [alleged] statement was made before _______________ <describe alleged bias or motive to fabricate>.
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_______________’sname of witness statement that _______________<describe prior consistent statement>[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
Timing Of Prior Consistent Statement As Preliminary Fact.—When the defense claims that a witness’s testimony may have been influenced by multiple biases or motives to fabricate, a prior consistent statement is admissible only if it was made before the existence of any one or more of the alleged biases or motives to fabricate. (People v. Hayes (1990) 52 C3d 577, 609.)
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 376. (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 F 3500.3.1.
Obligation Of Defendant To Prove Preliminary Fact Does Not Alter Prosecution’s Burden Of Proof.—See 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 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 toward individual jurors. Those finding preliminary fact can consider the evidence, those not finding it cannot. (See generally 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.
CALJIC NOTE: See FORECITE F 2.13 n1.
F 318 Inst 3 (a-c) Prior Consistent Or Inconsistent Statements: If Witness No Longer Remembers Events, Then Jury Should Disregard Extrajudicial Statements Regarding Those Events
*Add to CC 318:
Alternative a [No burden]:
You must totally disregard the testimony of _______________ name of witness [that _________________] unless you find that _______________ name of witness lied about not being able to remember_________________
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 the out-of-court statements of 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 witness __________ lied about not remembering _________.
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 that this preliminary fact to exist you must disregard, for all purposes, any evidence of witness _________’s out-of-court statements.
If you [all] find the above preliminary fact to exist then you [may] [must] consider witness __________’s out-of-court statements in your deliberations.
However, you must not rely on such out-of-court statements to find an essential fact or element of the charged offense[s] unless the prosecution has proved beyond a reasonable doubt that witness _________ lied about not remembering _____________.
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 out-of-court statements of witness ___________. Before you may consider this evidence you must first make a preliminary finding that:
It more likely than not that witness ________ lied about not remembering _______________.
Any juror who has made this finding, [may] [must] consider any evidence of witness __________’s out-of-court statements in evaluating whether the prosecution has met its burden of proving the defendant guilty beyond a reasonable doubt.
This preliminary finding requirement applies only to the evidence regarding witness ____________’s out-of-court statements [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
Lying About Failure To Remember As A Preliminary Fact.—Since the admissibility of the evidence depends on a finding that the witness lied about not remembering, that finding is a preliminary fact under EC 403. (See generally People v. Simmons (1981) 123 CA3d 677, 681-82.)
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 376. (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 F 3500.3.1.
Obligation Of Defendant To Prove Preliminary Fact Does Not Alter Prosecution’s Burden Of Proof.—See 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 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 toward individual jurors. Those finding preliminary fact can consider the evidence, those not finding it cannot. (See generally 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.
[See Brief Bank # B-865for briefing on this issue.]
CALJIC NOTE: See FORECITE F 2.13a.
F 318 Note 1 Prior Inconsistent Statement (EC 1235): Only Admissible As To Witnesses Who Testify At Trial
A witness’s prior inconsistent statement may be admitted at trial, but only if “offered in compliance with EC 770.” (EC 1235.) Under that provision, an inconsistent statement is not admissible unless the witness either testified and was given “an opportunity to explain or to deny the statement” or “has not been excused from giving further testimony in the action.” (EC 770(a) & (b). EC 1238 similarly requires that the witness testify at trial before a statement of prior identification may be admitted. (People v. Mayfield (1972) 23 CA3d 236, 241.)
CALJIC NOTE: See FORECITE F 2.13 n2.
F 318 Note 2 Prior Statements When Witness Claims to No Longer Remember
CC 318 may properly be given when a witness who claims to no longer remember an event is confronted with the witness’s prior statements about the event. (See People v. Solorzano (2007) 153 CA4th 1026, 1036-39.)
