FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 4 - CHAPTER 27
Go to Volume 4 Table of Contents - Go to Chapter 27 Table of Contents

27.5 Witness Credibility: Out-Of-Court Statements

    27.5.1 Witness Credibility: Applicability To Out-Of-Court Statements Or Declarants
    27.5.2 Witness Credibility: Inability To Cross-Examine Out-Of-Court Declarant's Statements

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 4 - CHAPTER 27

RATIONALE: The jury’s evaluation of the evidence must include both out of court statements as well as in-court testimony. Therefore, the factors relating to credibility should not be limited to in-court testimony because any out of court statements may not then be fairly evaluated.

POINTS AND AUTHORITIES: Many standard pattern instructions inform the jurors that they are the sole judges of the credibility of witnesses and provides the jury with specific considerations in evaluating "the testimony of witnesses." (See e.g., CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 2.20 [Believability Of Witness] (West, 6th Ed. 1996).) However, the credibility considerations are no less important when the prosecution relies upon extrajudicial statements by an out of court declarant. In analogous situations, where the reliability of certain evidence was at issue, the California Supreme Court recognized the necessity of expanding standard instructions so that a jury is informed of its duty to determine the credibility and reliability of extra-judicial statements. (See People v. Montiel (CA 1993) 5 C4th 877, 929 [21 CR2d 705]; see also People v. Andrews (CA 1989) 49 C3d 200, 214-15 [260 CR 583]; State v. Ali (CT 1995) 660 A2d 337, 347-48 [reversible error to refuse instruction that jury should consider contradictions, inconsistencies or falsities in witness’s out of court statements in assessing her credibility]; FORECITE National™ 25.6.5 [Accomplice Testimony Cautionary Instruction Should Not Be Limited To Testimony].) Hence, in situations where extra-judicial statements play a role in the prosecution's proof, the jury should be instructed so that the out of court statements are evaluated on an equal footing with the testimony given by live witnesses at the trial.

    See also FORECITE National™ 28.2 [Jury Should Consider Whether The Defendant's Out Of Court Statement Was Voluntary].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.3].

SAMPLE INSTRUCTIONS: The standard instruction on witness credibility should be modified, when appropriate, to be applicable to out of court declarants and testimony. For example:

   [Insert factors.]

[Source: FORECITE National™.]

    In determining the credibility of a witness you may consider his capacity to hear or see that about which he [testified] [made out of court statements] and his ability to recollect or relate to such matters; specifically in this regard, you may consider whether any witness was under the influence of alcohol, drugs, or other intoxicants at the time he [testified] [made out of court statements]; and if you believe that any witness was under the influence of alcohol, drugs, or other intoxicants at the time of his [testimony] [out of court statements], you may but are not obligated to disregard or give little weight to his or her [testimony] [out of court statements] insofar as you find that his credibility has been impaired thereby; you may reach that conclusion if you find that as a result of being under the influence of alcohol, drugs, or other intoxicants while [testifying] [making out of court statements], such witness' ability to recollect and relate matters about which he or she [testified] [made out of court statements] was impaired.

[Source: Modification of instruction quoted in People v. Barnett (CA 1976) 54 CA3d 1046, 1050, fn 2 [127 CR 88].]

    The ability of the witness to observe and/or perceive any matter about which the witness has [testified] [made out of court statements] in light of the witness' [intoxication] [drug use] [__________] (insert other appropriate mental impairment).

[Source: FORECITE National™.]

    The [testimony] [out of court statements] of some witnesses must be considered with more caution than that of other witnesses.

    For example, a witness who was using addictive drugs during the time he or she [testified] [made out of court statements] may have an impaired memory concerning the events that occurred during that time.

    So, while a witness of that kind may be entirely truthful when [testifying] [making out of court statements], you should consider that [testimony] [out of court statements] with more caution than that of other witnesses.

[Source: Modification of 11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL Special Inst.1.3 [Accomplice-Addictive Drugs-Immunity] (1997); see also U.S. v. Fajardo (11th Cir. 1986) 787 F2d 1523, 1527.]

    The [testimony] [out of court statements] of some witnesses must be considered with more caution than the [testimony] [out of court statements] of other witnesses. For example, the testimony of a witness who was under the influence of drugs or alcohol at the time of his or her [testimony] [out of court statements] should be considered with more caution than the [testimony] [out of court statements] of other witnesses.

[Source: Modification of 11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL Special Inst. 1.3 [Accomplice-Addictive Drugs-Immunity] (1997).]

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 4 - CHAPTER 27

RATIONALE: Even though the instructional factors relating to credibility are normally applied to witnesses, they also are equally relevant to out of court declarants. (See FORECITE National™ 27.5.1 [Witness Credibility: Applicability To Out Of Court Statements Or Declarants].) Moreover, as to out of court statements the additional factor of the inability to cross-examine may also be present.

POINTS AND AUTHORITIES: Out of court statements may be admitted even though the defendant did not have an opportunity to cross-examine the witness. (See e.g., People v. Fuentes (1998) 61 CA4th 956, 965 [72 CR2d 237] [statements not subject to cross-examination may be admissible if they fall within a firmly rooted hearsay exception].)

    Despite the assumed reliability of such evidence, there can be no dispute that the lack of cross-examination may affect the weight and credibility of the testimony. Cross-examination is the "greatest legal engine ever invented for the discovery of the truth." (Lilly v. Virginia (1999) 527 US 116 [119 SCt 1887, 1894; 144 LEd2d 117] [footnotes and citations omitted].) It is "the time-honored process [that is] best suited to determine the trustworthiness of testimonial evidence." (Watkins v. Sowders (1981) 449 US 341, 349 [101 SCt 654; 66 LEd2d 549]; see also Ohio v. Roberts (1980) 448 US 56, 70 [106 SCt 1121; 65 LEd2d 597] [testimony given under oath and subject to cross-examination bears an "indicia of reliability"]; Kentucky v. Stincer (1987) 482 US 730, 747 [107 SCt 2658; 96 LEd2d 631] dissenting opinion [cross-examination is "primary means for assuring the reliability of testimony from adverse witnesses"].) In other words, cross-examination is a fundamental right as well as a truth revealing process. (See U.S. v. Bagley (1985) 473 US 667 [105 SCt 3375; 87 LEd2d 481]; U.S. v. Cronic (1984) 466 US 648 [104 SCt 2039; 80 LEd2d 657]; Davis v. Alaska (1974) 415 US 308, 318 [94 SCt 1105;39 LEd2d 347]; Smith v. Illinois (1968) 390 US 129, 131 [88 SCt 748; 19 LEd2d 956]; Brookhart v. Janis (1966) 384 US 1, 3 [86 SCt 1245; 16 LEd2d 314]; Kelly v. State Bar (CA 1991) 53 C3d 509, 514 [280 CR 298] [credibility of witness repudiating prior testimony is virtually impossible to evaluate in absence of cross-examination].)

    Hence, when a statement is allowed into evidence without cross-examination the jury should receive a "clear, firm prophylactic instruction highlighting [defendant's] lack of any opportunity to cross-examine." (See U.S. v. Zannino (1st Cir. 1990) 895 F2d 1, 8 fn 6; see also State v. Brown (MO 1977) 549 SW2d 336 [citing McCormick on Evidence § 19 for proposition that, on request, jury should be instructed to consider lack of cross-examination in weighing the evidentiary value of uncross-examined testimony]; People v. Duke (CA 1999) 74 CA4th 23 [87 CR2d 547] [court admonished the jury that the defendant cannot call the codefendant as a witness due to the privilege and that the jury should consider this factor in determining how much weight, if any, to give the confession in using it against the defendant].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.3].

See generally, FORECITE National™ 27.3.2.8 [Impeachment Of Defendant By Prior Conviction:  Federal Circuit Model Instructions And Notes].

    In deciding whether to believe the out of court statements of _______ you should consider the inability of defendant to cross-examine [him] [her].

    Cross-examination is a fundamental right and its absence requires you to view the statements with special care.

[Source: FORECITE National™.]