When Is Instruction on Defendant’s Oral Statements Required Sua Sponte?
June 10th, 2019

People v. Johnson (Cedric) (2018) 6 Cal.5th 541 addressed the issue of whether the judge must sua sponte instruct regarding the defendant’s oral statements as follows: “Until recently, we had imposed on trial courts a sua sponte duty to instruct the jury that a defendant’s oral admissions should be viewed with caution.  [CALJIC No. 2.71.7; now CALCRIM No. 358.]  … In People v. Diaz (2015) 60 Cal.4th 1176, though, we determined that the instruction need be given only on request.”  However, because Diaz is not retroactive, it was error not to give the instruction sua sponte at this pre-Diaz trial.  However, the error was harmless.  Newton, the witness who told the police about defendant’s incriminating out-of-court statements, testified at trial that he did not hear any such statements.  The circumstances implicated numerous cautionary instructions that were given: prior inconsistent statements; discrepancies between witnesses; a witness willfully false in part; a witness who was a convicted felon.  The jury was adequately cautioned.