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.”
It follows that jury instructions are equally unconstitutional if they require the jury to find corroboration of accomplice testimony which is exculpatory as to the defendant.
Nor is corroboration of exculpatory accomplice testimony required by the relevant statute (PC 1111) which provides that “[a] conviction can not be had upon the testimony of an accomplice unless it be corroborated . . . .” Exculpatory testimony would not support a conviction and therefore need not be corroborated under the statute.
CC 334 (but not CC 301 or CC 335) suggests that there is no error in giving a “properly formulated” accomplice instruction when the accomplice is a “defense witness. (CC 334 Related Issues [citing and quoting U.S. v. Trouda (9th Cir. 2005) 394 F3d 683, 688 ].) However, the instructional language in the relevant CALCRIM instructions — CC 301, CC 334, and CC 335 — is not “properly formulated.”
As a result, at least two appellate decisions have reversed convictions in situations where the trial judge failed to recognize this problem with the standard CALCRIM instructions.
In People v. Zoltan, UNPUBLISHED, (2010; G041286) BOTH sides agreed that the witness was an accomplice and that his inculpatory testimony was subject to the corroboration rule of PC 1111. Accordingly, the judge instructed the jury based on CC 335 — Accomplice Testimony: No Dispute Whether Witness — and CC 301 — Single Witness’s Testimony. The appellate court held that CC 301 erroneously instructed the jury that all of the accomplice’s testimony — including the exculpatory testimony — required supporting evidence, while the testimony of one witness was sufficient to convict without supporting evidence.
In People v. Smith (2017) 12 Cal. App. 5th 766, 778-80 the judge gave the jurors CC 301 which instructed that any accomplice testimony requires corroboration before the jury may accept it as true and CC 334 on the definition of an accomplice. The appellate Court criticized CC 301 because it 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.)
Accordingly, CC 301 should be modified or supplemented with an instruction such as the following:
The requirement of supporting evidence only applies to accomplice testimony you are considering as evidence of [the defendant’s guilt] [and/or] [the truth of the the special allegations].
If you are considering the testimony of as evidence that the defendant is [not guilty] [and/or] [that the special allegations have not been proved], then the accomplice testimony does not require supporting evidence.