SERIES 300 EVIDENCE
F 331 TESTIMONY OF PERSON WITH DEVELOPMENTAL, COGNITIVE, OR MENTAL DISABILITY
TABLE OF CONTENTS
F 331 Inst 1 Witness Evaluation Should Focus On Truth And Accuracy
F 331 Inst 2 Witness With Mental Disability: Cautionary Instruction
F 331 Inst 3 Evaluation Of Witness Believability: Applicability To Out-Of-Court Declarant
F 331 Note 1 Testimony of Person With Developmental, Cognitive, or Mental Disability: CALCRIM Cross References And Research Notes
F 331 Note 2 Witness With Developmental, Cognitive, or Mental Disability: Due Process And Equal Protection Challenges
Return to Series 300 Table of Contents.
F 331 Inst 1 Witness Evaluation Should Focus On Truth And Accuracy
*Modify CC 331, paragraph 2, as follows [added language is underlined; deleted language is stricken]:
. . . more or less credible truthful and accurate than the other another witness.
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 331 Inst 2 Witness With Mental Disability: Cautionary Instruction
*Replace CC 331 with:
You have heard the testimony of __________, and you may be wondering whether [his] [her] developmental, cognitive, or mental disability 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 persons with a developmental, cognitive, or mental disability 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, such persons 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: Adapted from Fed. Jud. Ctr., Pattern Crim. Jury Instructions(1988), Inst. # 27, p. 36.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
Propriety Of Instruction – The Federal Judicial Center instruction is more useful to jurors than CALCRIM 331 (which is the instruction authorized by PC 1127g 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 1127g does not preclude other related instructions, the above instruction should be given in place of CC 331. (But see People v. Cately (2007) 148 CA4th 500.)
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.
RESEARCH NOTES
See FORECITE BIBLIO 2.20.1.
CALJIC NOTE: See FORECITE F 2.20.1a.
F 331 Inst 3 Evaluation Of Witness Believability: Applicability To Out-Of-Court Declarant
*Modify CC 331 as follows [added language is underlined]:
In evaluating the [testimony] [out-of-court statements] of a person with a (developmental disability[,]/ [or] [a] (cognitive[,]/ [or] mental[,]/ [or] communication) impairment), consider all of the factors surrounding that person’s [testimony] [out-of-court statements], including his or her level of cognitive development.
Even though a person with a (developmental disability[,]/ [or] [a] (cognitive[,]/ [or] mental[,]/ [or] communication) impairment)[,] may perform differently as a witness because of his or her level of cognitive development, that does not mean he or she is any more or less credible than another witness.
You should not discount or distrust the [testimony] [out-of-court statements] of a person with a (developmental disability[,]/ [or] [a] (cognitive[,]/ [or] mental[,]/ [or] communication) impairment)[,] solely because he or she has such a (disability/ [or] impairment).
Points and Authorities
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 331 Note 1 Testimony of Person With Developmental, Cognitive, or Mental Disability: CALCRIM Cross References And Research Notes
CALCRIM Cross-References:
CALCRIM 330 [Testimony of Child 10 Years of Age or Younger]
F 331 Note 2 Witness With Developmental, Cognitive, or Mental Disability: Due Process And Equal Protection Challenges
Due Process – A due process challenge to this instruction was rejected in People v. Cately (2007) 148 CA4th 500.
Equal Protection – CC 331 specifically advises the jury not to “discount or distrust the testimony of a person with a developmental, cognitive, or mental disability because of the disability.” 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 331 singles out a certain class of witness, here the person with the disability, 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 of the prosecution and defense 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.
