Tag Archives: Evidence and Witnesses


Reversible Error to Allow In-Custody Testimony of Co-Defendant Which Was Not A “Declaration Against Penal Interest”
March 14th, 2023

In People v. Gallardo (2017) 13 Cal.App.5th 51 the judge committed reversible error by admitting extrajudicial    statements of a non-testifying third codefendant regarding the role of the other two defendants in the crime.   After the declarant codefendant was arrested, the prosecution planted two informants in his cell for the purpose of eliciting information […]


Tags: , , ,


Reversible Error to Allow In-Custody Testimony of Co-Defendant Which Was Not A “Declaration Against Penal Interest”
March 4th, 2023

In People v. Gallardo (2017) 13 Cal.App.5th 51 the judge committed reversible error by admitting extrajudicial  statements of a non-testifying third codefendant regarding the role of the other two defendants in the crime.   After the declarant codefendant was arrested, the prosecution planted two informants in his cell for the purpose of eliciting information from […]


Tags: , , ,


Reversible Error to Allow In-Custody Testimony of Co-Defendant Which Was Not A “Declaration Against Penal Interest”
January 13th, 2023

In People v. Gallardo (2017) 13 Cal.App.5th 51 the judge committed reversible error by admitting extrajudicial statements of a non-testifying third codefendant regarding the role of the other two defendants in the crime.   After the declarant codefendant was arrested, the prosecution planted two informants in his cell for the purpose of eliciting information from […]


Tags: , , ,


CSC Identifies Problems in CJ 2.28 Which Also Apply to CC 306
October 27th, 2021

In People v. Nieves (2021) ______Cal 5th ______(May 3, 2021, S092410) [pp. 68-69] the CSC concluded that: …[I] was error to instruct the jury with CALJIC former No. 2.28, given the deficiencies we have identified in that instruction [Citation to People v. Thomas (2011) 51 Cal.4th 449, 483] and the scope of discovery violations in […]


Tags: , ,


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 […]


Tags: , , ,


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 […]


Tags: , ,


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 […]


Tags: , , ,


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 […]


Tags: , , ,


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 […]


Tags: , , ,


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 […]


Tags: , , ,