SERIES 300 EVIDENCE
F 334 Accomplice Testimony Must Be Corroborated: Dispute Whether Witness Is Accomplice
TABLE OF CONTENTS
F 334 Inst 1 Precluding Jury From Arbitrarily Disregarding Accomplice Testimony Creates An Improper Presumption Of Truthfulness
F 334 Inst 2 (a & b) Jury Not To Consider Guilty Plea Of Accomplice
F 334 Inst 3 An Accomplice Is Person Subject To Prosecution At The Time The Acts Were Committed
F 334 Inst 4 Jury Must Treat Accomplice Testimony With Greater Care and Caution Than Ordinary Witness
F 334 Inst 5 Late-Joining Accomplice
F 334 Inst 6 Burden To Prove Corroborating Witness As An Accomplice: Jury May Rely On Prosecution Evidence
F 334 Inst 7 Accomplice Corroboration: Jury Must Be Satisfied That Accomplice Is Telling The Truth
F 334 Inst 8 Informing Jurors As To Why Accomplice Testimony Should Be Viewed With Caution
F 334 Inst 9 (a & b) Cautionary Instruction Re: Finding Accomplice Under Preponderance Of Evidence Standard And Finding Same Facts As To Defendant Beyond A Reasonable Doubt
F 334 Inst 10 Clarification Of Confusing Language
Return to Series 300 Table of Contents.
F 334 Inst 1 Precluding Jury From Arbitrarily Disregarding Accomplice Testimony Creates An Improper Presumption Of Truthfulness
*Delete CC 334, paragraph 11, sentence 2:
You may not, however, arbitrarily disregard it.
Points and Authorities
CALCRIM 334 effectively requires the jurors to have a valid reason for disregarding the accomplice testimony. This improperly implies that the testimony must be credited unless the jurors have a reason for disregarding it. Such a presumption of truthfulness is erroneous. (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 5.13 [Due Process Underpinnings Of Accomplice Cautionary Instruction]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 334 Inst 2 (a & b) Jury Not To Consider Guilty Plea Of Accomplice
*Add to CC 334:
Alternative a:
You must not consider _______________’s <name of witness who pled guilty> guilty plea [for any purpose] [as evidence that [the defendant] [_______________ <name of other person>] is guilty.
Alternative b:
The fact that _______________’s <name of accomplice who pled guilty> entered a plea of guilty must not be considered by you as evidence of the guilt of any other person.
Points and Authorities
Often the defense may seek to impeach the testimony of an accomplice by showing that the accomplice was allowed to make a favorable plea bargain. In such a situation, the jury should not be permitted to use the accomplice’s plea against the defendant. (See People v. Young (1978) 85 CA3d 594, 602.)
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 7.3 [Consideration Of Matters Not Admitted Into Evidence]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
NOTES
Alternative b above was given as requested in People v. White, No. 117535, San Francisco Superior Court.
CALJIC NOTE: See FORECITE F 3.10a.
F 334 Inst 3 An Accomplice Is Person Subject To Prosecution At The Time The Acts Were Committed
*Add to CC 334:
In determining whether a witness is an accomplice for the purposes of these instructions, you must determine whether the person was subject to prosecution for the identical crime at the time the acts were committed, not at the time of trial. Hence, a person who was subject to prosecution for the identical crime at the time the acts were committed remains an accomplice for the purposes of these instructions, even though the person may have subsequently been acquitted of the offense or pled guilty to a lesser offense.
Points and Authorities
An accomplice is one who “is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” (PC 1111.) A conviction cannot stand upon the testimony of an accomplice unless it is corroborated with other evidence tending to connect the defendant with the commission of the offense. (Ibid.) The test of an accomplice is not whether the witness was subject to trial and conviction at the time of testifying, but whether the witness was subject to prosecution for the offense when the acts were committed. Thus, a witness who was charged and acquitted of the identical offense charged against the defendant may still be found to be an accomplice. (People v. Gordon (1973) 10 C3d 460, 469; see also People v. Flanders (1979) 89 CA3d 634, 640 fn 4.) Moreover, the same rationale would apply if the accomplice entered a plea to a lesser crime. (Gordon, supra, 10 C3d at 469-70.)
Hence, CJ 3.10 should be modified as set forth above to assure that the jury will apply the accomplice corroboration rule to any witness who was an accomplice when the acts were committed but, for whatever reason, was not liable for prosecution at the time of trial.
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 5.13 [Due Process Underpinnings Of Accomplice Cautionary Instruction]
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 3.10b.
F 334 Inst 4 Jury Must Treat Accomplice Testimony With Greater Care And Caution Than Ordinary Witness
*Add to CC 334 as follows:
In deciding whether to believe testimony given by an accomplice, you should use greater care and caution than you do when deciding whether to believe testimony given by a nonaccomplice.
Points and Authorities
People v. Guiuan (1998) 18 C4th 558 concluded that the jury should be instructed to view an accomplice’s testimony with “caution” rather than “distrust.” (But see concurring opinion of Justice Kennard, 18 C4th 575; FORECITE F 3.18 n5.) However, the language of CC 334 as modified by Guiuan may not adequately convey the Court’s intended meaning: that “the jury pay special heed to incriminating evidence because it may be biased ….” (Guiuan, 18 C4th at 569, fn 4; see also People v. Box (2000) 23 C4th 1153, 1208-09 [court erred in refusing request to instruct the jury to view co-defendant’s testimony with care and caution to the extent it incriminated defendant].) This is so because the jury may rightfully believe that it is their duty to consider all testimony with “care and caution.” Not only would the jurors reasonably conclude on their own that care and caution should be used in all aspects of jury service, but CC 103 and CC 220 admonish the jurors that they “must impartially compare and consider all the evidence.” Hence, the current language of CC 334, as modified by Guiuan, does not clearly convey that any special or greater scrutiny need be given to the accomplice testimony.) (Compare CJ 3.20 [testimony of informant should be viewed with “caution and close scrutiny” ].)
A more accurate instruction would include the following language proposed by Justice Kennard in the above instruction. (Guiuan, 18 C4th 575.) In this way the jurors would more likely understand that they must pay “special” heed to the accomplice testimony.
The failure to properly instruct the jury on accomplice testimony implicates the defendant’s federal constitutional right to due process and a fair jury trial. (5th, 6th and 14th Amendments; see Montana v. Eglehoff (1996) 518 US 37, 43 [136 LEd2d 361; 116 SCt 2013] [historical practice is primary guide in determining “fundamental principles of justice” for due process analysis]; see also Medina v. California (1992) 505 US 437, 446 [120 LEd2d 353; 112 SCt 2572]; Schad v. Arizona (1991) 501 US 624 [115 LEd2d 555; 111 SCt 2491]; see also FORECITE F 334 Note 10.)
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 5.13 [Due Process Underpinnings Of Accomplice Cautionary Instruction]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
JURY ARGUMENT ALERT: If the above modification of CC 334 is refused because the concept is included in the standard language, counsel should have the right to read this language to the jury during argument and inform the jury that this language is what the cautionary language of CC 334 was intended to mean. (See FORECITE F 200.5 Inst 2.)
CALJIC NOTE: See FORECITE F 3.18b.
F 334 Inst 5 Late-Joining Accomplice
*Add to CC 334 as follows:
Even if a person is not an accomplice at the beginning of the crime, that person may later become an accomplice based on his or her later participation in the crime.
Points and Authorities
CALCRIM 334 fails to explain to the jurors that a person need not participate in the crime from the beginning in order to be an accomplice. People v. Jones (2003) 30 C4th 1084, 1112 stated that such an instruction may properly be given upon request by the defense.
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 5.13 [Due Process Underpinnings Of Accomplice Cautionary Instruction]
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 3.18d.
F 334 Inst 6 Burden To Prove Corroborating Witness As An Accomplice: Jury May Rely On Prosecution Evidence
*Add to CC 3340:
In determining whether the defendant has met this burden, consider evidence presented by the prosecution as well as that presented by the defense.
Points and Authorities
In meeting the burden to establish that a witness is an accomplice, “it is of no consequence whether the evidence was introduced by one party rather than the other. [Citation omitted].” (People v. Belton (1979) 23 C3d 516, 524 [citation omitted]; see also People v. Stankewitz (1990) 51 C3d 72, 92-93.) However, CC 480 does not make this rule clear to the jury but rather implies that “the defendant has the burden” of producing the necessary evidence. Therefore, CC 334 should be modified as set forth above to avoid misguiding the jury on this point. (See, People v. Stankewitz at 92-93 [implicitly recognizing that the jury should be told “evidence produced by either party [is] to be considered …” but concluding that such an amplification of the standard instruction should be requested].)
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 5.13 [Due Process Underpinnings Of Accomplice Cautionary Instruction]
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 3.10, et al.
CALJIC NOTE: See FORECITE F 3.19b.
F 334 Inst 7 Accomplice Corroboration: Jury Must Be Satisfied That Accomplice Is Telling The Truth
*Modify paragraph 8, Factor 3 as follows [added language is underlined]:
3. That supporting evidence tends to connect the defendant to the commission of the crime[s] in such a way that you are reasonably satisfied the accomplice is telling the truth.
Points and Authorities
The requirement that the accomplice corroboration tend to “connect the defendant with the commission of the offense” (CC 334) is apparently taken from language in People v. Hathcock (1973) 8 C3d 599, 617. This language provides as follows:
“The evidence required for corroboration of an accomplice ‘need not corroborate the accomplice as to every fact to which he testifies but is sufficient if it does not require interpretation and direction from the testimony of the accomplice yet tends to connect the defendant with the commission of the offense in such a way as reasonably may satisfy a jury that the accomplice is telling the truth ….” (Ibid.)
This language could provide the basis for requesting expansion of CC 334 to include language that the jury must find that the accomplice’s testimony connects the defendant with the commission of the crime “in such a way as reasonably may satisfy the jury that the accomplice is telling the truth.”
Hathcock and Wisely also make it clear that the witness corroboration need not go to every element of the offense charged but is sufficient if it relates to “some act or fact which is an element of the crime.” CC 334 does not directly convey this concept.
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 5.13 [Due Process Underpinnings Of Accomplice Cautionary Instruction]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 133.
[RESEARCH NOTE: See FORECITE BIBLIO 3.10, et al.]
CALJIC NOTE: See FORECITE F 3.11 n2.
F 334 Inst 8 Informing Jurors As To Why Accomplice Testimony Should Be Viewed With Caution
*Add to CC 334:
In deciding whether to believe the testimony given by an accomplice, you should use greater care and caution than you do when deciding whether to believe testimony given by an ordinary witness. Because an accomplice is also subject to prosecution for the same offense, an accomplice’s testimony may be strongly influenced by the hope or expectation that the prosecution will reward testimony that supports the prosecution’s case by granting the accomplice immunity or leniency. For this reason, you should view with distrust accomplice testimony that support’s the prosecution’s case. Whether or not the accomplice testimony supports the prosecution’s case, you should bear in mind the accomplice’s interest in minimizing the seriousness of the crime and the significance of the accomplice’s own role in its commission, the fact that the accomplices’ participation in the crime may show the accomplice to be an untrustworthy person and an accomplice’s particular ability, because of inside knowledge about the details of the crime, to construct plausible falsehoods about it. In giving you this warning about accomplice testimony, I do not mean to suggest that you must or should disbelieve the accomplice testimony that you heard at this trial. Rather, you should give the accomplice testimony whatever weight you decide it deserves after considering all the evidence in the case.
[Source: From People v. Guiuan (1998) 18 C4th 558, 576, Kennard, J., concurring.]
Points and Authorities
In her concurring opinion in People v. Guiuan (1998) 18 C4th 558, 576, Justice Kennard examined CJ 3.18 (6th ed. 1996) and the instruction given in Guiuan and observed that: “Neither instruction tells the jury why accomplice testimony should be evaluated with greater care and skepticism than the testimony of other witnesses … A cautionary instruction is more helpful and more effective if it states the reasons why special caution is warranted.” (Guiuan, 18 C4th at 570. [emphasis in original].)
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 5.13 [Due Process Underpinnings Of Accomplice Cautionary Instruction]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
TRIAL PRACTICE ALERT: Although the majority did not agree with Justice Kennard that the jury should be instructed on such reasons, counsel should be able to argue these points to the jury. (See FORECITE F 200.5 Inst 2; PG V(C)(10).) Additionally, it may be strategically useful to focus on these factors in conducting investigation, presenting evidence at trial and in cross-examining the witnesses. (But see People v. Jenkins (2000) 22 C4th 900, 1009 [immunity/plea agreements do not necessarily render testimony of accomplices unreliable unless they require the witness to testify in a particular manner; agreement that specifies only that the testimony be truthful is valid].)
CALJIC NOTE: See FORECITE F 3.11 n2″>F 3.18 n5.
F 334 Inst 9 (a & b) Cautionary Instruction Re: Finding Accomplice Under Preponderance Of Evidence Standard And Finding Same Facts As To Defendant Beyond A Reasonable Doubt
*Add to CC 334:
Alternative a:
Please remember that any finding you make as to an accomplice’s intent, acts and/or participation in a criminal conspiracy do not in any way reduce or eliminate the presumption of innocence as to the defendant. You may not convict the defendant unless you find every essential fact and element of the charge proven beyond a reasonable doubt as to the defendant. For example, even if you were to find the existence of a conspiracy under this instruction’s more-likely-than-not standard, this finding must not control your consideration of whether the conspiracy’s existence was proven beyond a reasonable doubt as to the defendant. In other words, even though you might find a fact proven under the more-likely-than-not standard, you may still find that the same fact was not proven under the much higher proof-beyond-a-reasonable-doubt standard.
Alternative b:
The preliminary finding requirement applies only to the evidence regarding accomplice determination [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
There is a danger of juror confusion when the jurors are asked to employ different standards for different purposes. (See FORECITE F 319 Inst 1; see also CALCRIM 376.)
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 5.13 [Due Process Underpinnings Of Accomplice Cautionary Instruction]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 334 Inst 10 Clarification Of Confusing Language
*Modify last sentence of Paragraph 1 and Elements as follows [added language is underlined; deleted language is stricken]:
Someone is subject to prosecution if:
1. Hhe or she personally committed the crime; or if:
OR
21. He or she knew of the criminal purpose of the person who committed the crime;
AND
32. He or she intended to, and did in fact, (aid, facilitate, promote, encourage, or instigate the commission of the crime[;]/ [or] participate in a criminal conspiracy to commit the crime).
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency – The April 2011 Revision to Paragraph 1 of CC 334 was apparently made without circulating it for comment or obtaining direct Judicial Council approval. (See 4/29/11 report, page 2, fn 2 [http://www.courts.ca.gov/documents/20110429itemb.pdf].) However, the revision is potentially confusing because it may be read so as to require both Element 1 and Element 3 when, in fact, Element 1 is alone sufficient to make someone an accomplice.
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.