SERIES 300 EVIDENCE
F 330 Testimony of Child 10 Years of Age or Younger
TABLE OF CONTENTS
F 330 Inst 1 Testimony of Child: Witness Evaluation Should Focus On Truth And Accuracy
F 330 Inst 2 Testimony Of A Child: Cautionary Instruction
F 330 Inst 3 Evaluation Of Witness Believability: Applicability To Out-Of-Court Declarant
F 330 Inst 4 Improper To Define Jurors Duties In Terms Of Deciding The Truth Based Only On Their Common Sense And Experience
F 330 Note 1 Testimony of Child 10 Years of Age or Younger: CALCRIM Cross References And Research Notes
F 330 Note 2 Child Witness Instruction: Due Process And Equal Protection Challenges
Return to Series 300 Table of Contents.
F 330 Inst 1 Testimony of Child: Witness Evaluation Should Focus On Truth And Accuracy
*Modify CC 330, paragraph 4, sentence 1 as follows [added language is underlined]:
While a child and an adult witness may behave differently, that difference does not mean that one is any more or less believable truthful and accurate than the other.
Points and Authorities
See FORECITE F 105.3.10 Inst 1; see also e.g., CC 332, paragraph 1, sentence 5.
Identification Of Parties—See FORECITE F 100.2 Note 1.
F 330 Inst 2 Testimony Of A Child: Cautionary Instruction
*Replace CC 330 with:
You have heard the testimony of __________, and you may be wondering whether [his] [her] young age should make any difference. What you must determine, as with any witness, is whether that testimony is believable. Did [he] [she] understand the questions? Does [he] [she] have a good memory? Is [he] [she] telling the truth?
Because young children may not fully understand what is happening here, it is up to you to decide whether __________ understood the seriousness of [his] [her] appearance as a witness at this criminal trial. In addition, young children may be influenced by the way that questions are asked. It is up to you to decide whether __________ understood the questions asked of [him] [her]. Keep this in mind when you consider __________’s testimony.
[Source: Fed. Jud. Ctr., Pattern Crim. Jury Instructions(1988), Inst. # 27, p. 36.]
Points and Authorities
The Federal Judicial Center instruction is more useful to jurors than CALCRIM 330 (which is the instruction authorized by PC 1127f) because it identifies the basic difficulties with the testimony of a child and specifies the kinds of issues which may arise in connection with such testimony. Hence, because PC 1127f does not preclude other child witness instructions, the above instruction should be given in place of CC 330.
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]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
NOTES
For an alternative form which tells the jury to “consider a child’s testimony with caution” and which warns the jury that the child’s “strength and use of imagination may frequently be out of proportion to the power of [the child’s] other facilities” see Deerings EC 701, suggested forms, p. 336.
RESEARCH NOTES
See FORECITE BIBLIO 2.20.1.
CALJIC NOTE: See FORECITE F 2.20.1a.
F 330 Inst 3 Evaluation Of Witness Believability: Applicability To Out-Of-Court Declarant
*Modify CC 330 as follows [added language is underlined]:
You have heard [testimony] [out-of-court statements] from a child who is age 10 or younger. As with any other witness, you must decide whether the child gave truthful and accurate [testimony] [out-of-court statement].
In evaluating the child’s [testimony] [out-of-court statements], you should consider all of the factors surrounding that [testimony] [out-of-court statement], including the child’s age and level of cognitive development.
When you evaluate the child’s cognitive development, consider the child’s ability to perceive, understand, remember, and communicate.
While a child and an adult witness may behave differently, that difference does not mean that one is any more or less believable than the other. You should not discount or distrust the [testimony] [out-of-court statements] of a witness just because he or she is a child.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
Propriety of Instruction – See FORECITE F 105.1 Inst 9
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:
FFORECITE CG 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
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 2.20.1b.
F 330 Inst 4 Improper To Define Jurors Duties In Terms Of Deciding The Truth Based Only On Their Common Sense And Experience
*Modify CC 330, paragraph 1, as follows [added language is underlined; deleted language is stricken]:
You have heard testimony from a child who is age 10 or younger. As with any other witness, you must decide whether the child gave truthful and accurate testimony. Each of you alone must evaluate the credibility or believability of the witnesses. This means that you must use your common sense and experience to evaluate the truthfulness and accuracy of a witness in light of all the relevant factors and the other evidence.
Points and Authorities
See FORECITE F 105.1 Inst 2.
F 330 Note 1 Testimony of Child 10 Years of Age or Younger: CALCRIM Cross References And Research Notes
CALCRIM Cross-References:
CALCRIM 331 [Testimony of Person With Developmental, Cognitive, or Mental Disability]
Research Notes:
California Mandatory Criminal Jury Instruction Handbook (CJER) (2013) § 2.161(g).
F 330 Note 2 Child Witness Instruction: Due Process And Equal Protection Challenges
Due Process – A due process challenge to this instruction has been rejected. (People v. Gilbert (1992) 5 CA4th 1372.)
Equal Protection – CC 330 specifically advises the jury not to “discount or distrust the testimony of a child solely because he or she is a child.” However, CALCRIM does not contain a commensurate instruction for the defendant (i.e., do not distrust the defendant’s testimony merely because he is on trial for his liberty). Hence, CC 330 singles out a certain class of witness, here the child victim, while the defendant is denied the same degree of instructional protection. This state of affairs constitutes an equal protection violation. (U.S. Constitution, 14th Amendment.)
Furthermore, such disparate treatment between the defense and prosecution witnesses also violates Due Process principles. (See Wardius v. Oregon (1973) 412 US 470 [37 LEd2d 82; 93 SCt 2208]; see also FORECITE PG VII(C)(21).)
[Research Note: See FORECITE BIBLIO 2.20.1.]
CALJIC NOTE: See FORECITE F 2.20.1 n1.
