CALCRIM No. 104. Evidence
Judicial Council of California Criminal Jury Instructions (2023 edition)Download PDF
You must decide what the facts are in this case. You must use only the
evidence that is presented in the courtroom [or during a jury view].
“Evidence” is the sworn testimony of witnesses, the exhibits admitted
into evidence, and anything else I tell you to consider as evidence. The
fact that the defendant was arrested, charged with a crime, or brought
to trial is not evidence of guilt.
Nothing that the attorneys say is evidence. In their opening statements
and closing arguments, the attorneys will discuss the case, but their
remarks are not evidence. Their questions are not evidence. Only the
witnesses’ answers are evidence. The attorneys’ questions are significant
only if they help you understand the witnesses’ answers. Do not assume
that something is true just because one of the attorneys asks a question
that suggests it is true.
During the trial, the attorneys may object to questions asked of a
witness. I will rule on the objections according to the law. If I sustain an
objection, the witness will not be permitted to answer, and you must
ignore the question. If the witness does not answer, do not guess what
the answer might have been or why I ruled as I did. If I order testimony
stricken from the record, you must disregard it and must not consider
that testimony for any purpose.
You must disregard anything you see or hear when the court is not in
session, even if it is done or said by one of the parties or witnesses.
The court [reporter] has made a (record/recording) of everything that
was said during the trial. If you decide that it is necessary, you may ask
that the (court reporter’s record be read to/court’s recording be played
for) you. You must accept the (court reporter’s record/court’s recording)
New January 2006; Revised April 2008, August 2009, March 2019
There is no sua sponte duty to instruct on these evidentiary topics; however,
instruction on these principles has been approved. (See People v. Barajas (1983)
145 Cal.App.3d 804, 809 [193 Cal.Rptr. 750]; People v. Samayoa (1997) 15 Cal.4th
795, 843-844 [64 Cal.Rptr.2d 400, 938 P.2d 2]; People v. Horton (1995) 11 Cal.4th
1068, 1121 [47 Cal.Rptr.2d 516, 906 P.2d 478].)
• Evidence Defined. Evid. Code, § 140.
• Arguments Not Evidence. People v. Barajas (1983) 145 Cal.App.3d 804, 809
[193 Cal.Rptr. 750].
• Questions Not Evidence. People v. Samayoa (1997) 15 Cal.4th 795, 843-844 [64
Cal.Rptr.2d 400, 938 P.2d 2].
• Striking Testimony. People v. Horton (1995) 11 Cal.4th 1068, 1121 [47
Cal.Rptr.2d 516, 906 P.2d 478].
• This Instruction Upheld. People v. Ibarra (2007) 156 Cal.App.4th 1174, 1183
[67 Cal.Rptr.3d 871].
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial, § 715.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 83,
Evidence, §§ 83.01, 83.02 (Matthew Bender).
PRETRIAL CALCRIM No. 104