Tag Archives: Cautionary and Limiting Instructions


CC 373 Improperly Implies That The Dog’s Identification Of The Defendant Or Location Is A “Fact”
August 30th, 2019

CC 373 instructs as follows: You have received evidence about the use of a tracking dog. You may not conclude that the defendant is the person who committed the crime based only on the fact that a dog indicated the defendant [or a location]. Before you may rely on dog tracking evidence, there must be: […]


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CALJIC 2.16 Properly Instructs Jury on Dog Scent Evidence; Instruction Is Not Required Sua Sponte
July 30th, 2019

In People v. Westerfield (2019) 6 Cal. 5th 632 evidence that a cadaver dog had “alerted” to a scent in defendant’s motorhome was admitted before the jury.  The jury was instructed pursuant to CALJIC No. 2.16 that dog tracking evidence is not sufficient by itself to permit an inference that the defendant is guilty of […]


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Should Defendant’s Statements Which Show Guilt of Lesser Offense Be Viewed with Caution?
June 7th, 2019

In People v. Powell (2018) 6 Cal. 5th 136; 169 the defendant contended that the cautionary instruction regarding the defendant’s out of court oral admissions (CJ 2.71.7) “pertains only to statements harmful to the defense.” The CSC apparently agreed that the instruction does not apply to exculpatory statements: “[T]his instruction properly applies to ‘any extrajudicial […]


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What is a Developmental Disability for Purposes of Giving Witness Cautionary Instruction (CC 331)?
November 20th, 2018

Pursuant to PC 1127g, CC 331 provides specific guidance on evaluating the testimony of persons with “developmental, cognitive, or mental disability.”   However, the statutory language does not define the terms “developmental disability” or “cognitive, mental, or communication impairment.” In such cases it is appropriate to look to the legislative history for guidance. In so […]


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CC 105 Is Correctly Given When Evidence Is Conflicting as to Whether a Witness’s Character for Untruthfulness Was Discussed
August 4th, 2016

In People v. Jimenez (2016) 246 CA4th 726 the trial court properly instructed jury that it could conclude the character for truthfulness of a witness (the alleged victim) was good based on lack of discussion of character in community where one witness (Hoffman) testified regarding lack of discussion, but other witnesses testified that the witness […]


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Jury Should Consider Defendant’s Mental Impairment in Deciding Whether False Statements Showed Consciousness of Guilt
August 2nd, 2016

In People v. McGehee (2016) 246 CA4th 1190 the defense argued that McGehee suffered from schizophrenic delusions involving demons and that he killed his mother during such an episode. The jury was instructed that if McGehee made any false or misleading statements related to the crime, that conduct may show consciousness of guilt. (CC 362.) […]


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Cautionary Instruction on Defendant’s Statements Not Required Sua Sponte
July 26th, 2016

In People v. Diaz (2015) 60 C4th 1176 the California Supreme Court reconsidered the requirement that the cautionary principle reflected in CALJIC 2.71.7 [now CC 358] must be given sua sponte. The Court decided that “in light of a change in the law that requires the general instructions on witness credibility to be given sua […]


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Judge Has Sua Sponte duty to Give Cautionary Instruction re: Jury Conduct But Standard of Prejudice Not Resolved
July 19th, 2016

In People v. Carter (2010) 182 CA4th 522, 531-534 the reviewing court held that the failure to give CC 101 sua sponte was error. However, the parties disagreed on whether the harmless error analysis should be governed by People v. Watson (1956) 46 Cal.2d 818, 836 [not reasonably probable a more favorable result would have […]


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In Custody Informant Should Be Treated Like an Accomplice
April 20th, 2015

  When the CC Committee revised CC 336 in August of 2012, it stated that “The legislature enacted Penal Code section 1111.5 requiring that the testimony of an in-custody informant be treated in a manner similar to that of an accomplice.” The committee revised CC 336, In-Custody Informant, accordingly, borrowing heavily from CC 334 and […]


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Evidence Limited to Courtroom: Sua Sponte Duty to Admonish
April 10th, 2015

  The court has a sua sponte duty to give CC 101, limiting jurors to considering evidence that is presented in the courtroom. (See People v. Carter (2010)182 Cal. App. 4th 522.)   It is critical that jurors be instructed that they cannot conduct any independent research on a case and should not discuss the […]


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