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 doing, People v. Catley (2007) 148 Cal.App.4th 500, 508 concluded that: “The Legislature defined a dependent person as “any person who has a physical or mental impairment that substantially restricts his or her ability to carry out normal activities or to protect his or her rights….” Evidence Code Section 177 contains an identical definition dependent person.


On the other hand, People v. Keeper (2011) 192 Cal.App.4th 511, 520-521 concluded that “[i]t is apparent from the legislative history and the definition of “dependent persons” that the Legislature intended section 1127g to apply to persons whose developmental disability, or cognitive, mental, or communication impairment, causes them to be dependent on others for care.” [Emphasis added.]


Keeper’s focus on whether or not the witness is “dependent on others for care” and not on whether the person can “protect his or her rights” improperly limits the scope of the statute and frustrates the overarching legislative objective of protecting the rights of those who cannot do so themselves.

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