Tag Archives: Evidence and Witnesses

CC 330: “Should Consider” vs. “Consider”
October 27th, 2020

CC 330 contains inconsistent admonitions to the jurors regarding consideration of factors potentially relating to the credibility of a child witness under 10 years old.   Compare Paragraph 2:   In evaluating the child’s testimony, you should consider all of the factors surrounding that testimony, including the child’s age and level of cognitive development. [Emphasis […]

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Failure to Object Does Not Forfeit the Issue on Appeal When There Is a Change in the Law
May 12th, 2020

In People v. Sanchez (2016) 63 C4th 665 held that if an expert testifies to case-specific out-of-court statements to explain the bases for his opinion, those statements are necessarily considered by the jury for their truth, thus rendering them hearsay.   In People v. Perez (2020) ___ Cal5th ___ S248730; 2/27/20 defense counsel failed to […]

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CALCRIM Instruction on Adoptive Admissions Not Required Sua Sponte
March 28th, 2020

The trial court was not under a sua sponte duty to give the jury adoptive admission instructions (CALJIC 2.71.5 or CALCRIM 357).  The jury was given the standard instruction on admissions in general (CALJIC 2.71; see also CALCRIM 358).  When paired with court’s oral admonitions that the recorded statement was “only to be considered” with […]

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Limited Evidence Instructions Must Be Separately Requested
November 12th, 2018

The CALCRIM instructions on limited evidence (CC 303, CC 304, and CC 305) are not required to be given in the absence of a request by counsel. (See Evidence Code section 355; People v. Simms (1970) 10 CA 3d 299, 310 [CC 303 and CC 304]; People v. Miranda (1987) 44 C3d 57, 83 [CC […]

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Confusing Language of CC 121 Regarding Foreign Language Recordings Should Be Clarified
April 28th, 2017

In August 2016 the CALCRIM committee revised CC 121 to provide as follows: You must rely on the transcript, even if you understand the language in the recording. Do not restranslate the recording for other jurors. If you believe the transcript is incorrect, let me know immediately by writing a note and giving it to […]

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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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Credibility: Child Molestation
April 17th, 2015

  People v. Fernandez ( 2013) 216 Cal. App. 4th 540, upheld CC 330 over a challenge that the instruction unfairly bolstered a child molestation victim’s credibility and impaired the defense’s ability to impeach her credibility based on her inability to perceive, understand, remember, and communicate. Relying on cases that had upheld CJ 2.20.1, the […]

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Witness Credibility Factors: Sua Sponte Duty to Delete Inapplicable Factors
April 13th, 2015

  The court has a sua sponte duty to give an instruction on factors relevant to a witness’s credibility. However, not all of the factors will apply in each case. Therefore, the court should strike those factors inapplicable in a case. Failure to do so may cause jurors to speculate about what evidence was not […]

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Witness Credibility: Relevance Of Inadvertent Mistake
May 10th, 2014

  Defense counsel have tried to have courts modify this instruction to have the last paragraph read: “If you decide that a witness deliberately lied or inaccurately testified about something significant in this case. . .or, if you think the witness lied or inaccurately testified about some things. . ..” However, this modification has been […]

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Prior Statement of Witness Who Claims to Not Remember
April 30th, 2014

  A witness who claims to “no longer remember a certain event” may be confronted with the witness’s prior statements in which case, a CC 318 instruction would be warranted. (See People v. Solorzano (2007) 153 Cal. App. 4th 1026; People v. Hudson (2009) 175 Cal. App. 4th 1025.)

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