318. Prior Statements as Evidence

You have heard evidence of [a] statement[s] that a witness made before the trial. If you decide that the witness made (that/those) statement[s], you may use (that/those) statement[s] in two ways:

1. To evaluate whether the witness's testimony in court is believable;

AND

2. As evidence that the information in (that/those) earlier statement[s] is true.

Bench Notes

Instructional Duty

The court has no sua sponte duty to give this instruction. (People v. Griffin (1988) 46 Cal.3d 1011, 1026 [251 Cal.Rptr. 643, 761 P.2d 103].) Use this instruction when a testifying witness has been confronted with a prior inconsistent statement.

If prior testimony of an unavailable witness was impeached with a prior inconsistent statement, use CALCRIM No. 319, Prior Statements of Unavailable Witness. (People v. Williams (1976) 16 Cal.3d 663, 668-669 [128 Cal.Rptr. 888, 547 P.2d 1000].) If the prior statements were obtained by a peace officer in violation of Miranda, give CALCRIM No. 356, Miranda-Defective Statements.

Authority

Instructional Requirements. California v. Green (1970) 399 U.S. 149, 158 [90 S.Ct. 1930, 26 L.Ed.2d 489]; People v. Cannady (1972) 8 Cal.3d 379, 385-386 [105 Cal.Rptr. 129, 503 P.2d 585]; see Evid. Code, §§ 770, 791, 1235, 1236.

Secondary Sources

1 Witkin, California Evidence (4th ed. 2000) Hearsay, § 157.

4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 82, Witnesses, § 82.22[3][b], Ch. 83, Evidence, § 83.13[3][e], [f], Ch. 85, Submission to Jury and Verdict, § 85.03[2][b] (Matthew Bender).

(New January 2006)