Is Accomplice Testimony “Exonerating” When It Tends to Incriminate the Defendant of Lesser Offense?
June 18th, 2019

CC 334 instructs that accomplice testimony requires corroboration before the jury may accept it as true. However, the defense may want to consider requesting modification of CC 334 when the defendant’s statements serve to show his guilt of a lesser offense than the charged offense. (See e.g., sample below.) Statements which mitigate or lessen the defendant’s culpability are exculpatory as to the greater offense but inculpatory as to the lesser offense. By failing to make this distinction the optional language of CC 358 improperly instructs the jurors to consider exculpatory evidence with caution.


Sample Instruction


Add to Paragraph 2 of CC 358:


Do not consider with caution any statement made by (the/a) defendant tending to show (his/her) guilt of __________________________________ [insert applicable lesser included offense(es).  


Tags: CC 358, Sample Instructions, Cautionary and Limiting Instructions, Lesser Included Offenses, Lesser Related Offenses


In People v. Smith (2017) 12 Cal. App. 5th 766, 778-80 the judge instructed the jury per the standard CALCRIM instructions that accomplice testimony requires corroboration before the jury may accept it as true. The appellate Court criticized these instructions because they failed to explain that the supporting evidence requirements applies “only when [the accomplice] testimony is being used to determine a fact used to convict a defendant.” (Id. at 780.) Furthermore, CC 301 was erroneous because “it instructed the jury that … all of Mitchell’s testimony, including the exculpatory testimony pertaining to Smith, required corroborating evidence before the jury could accept it as true.” (Id. at 780.) In other words, CC 301 “improperly informed the jury that there must be corroborating evidence to support an accomplice’s testimony that is either neutral or exonerating.” (Ibid.)

The CALCRIM committee modified CC 334 in response to Smith by limiting the corroboration requirement to a statement or testimony “that tends to incriminate the defendant….” This change implies that exonerating statements/testimony need not be corroborated or viewed with caution the instruction.

So counsel may wish to request an instruction which expressly explains this distinction.

Furthermore, the defense could object to CC 334 if the accomplice testimony is “solely exculpatory or neutral.” (See CC 334, Benchnotes [citing Smith].)

Support for the above proposals is rooted in fundamental constitutional principles. In Washington v. Texas (1967) 388 U.S. 14, the United States Supreme Court held that a criminal defendant has a Sixth Amendment right to present exculpatory testimony of an accomplice to the jury. In Cool v. United States (1972) 409 U.S. 100, 104, the Court held that instructing a jury to ignore defense accomplice testimony unless the jury believed the testimony to be true beyond a reasonable doubt “impermissibly obstruct[ed] the exercise of that right” and “ha[d] the effect of substantially reducing the Government’s burden of proof.”

Sample Instruction (add at end of CC 334):

The above rules regarding accomplice testimony or statements do not apply to any such testimony or statement or parts thereof which is either neutral or exonerating. In other words, if the testimony or statement tends to negate or disprove any essential fact or element of the charged offense which the prosecution is required to prove.

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