California Criminal Jury Instructions (CALCRIM) (2017)

222. Evidence

Download PDF
222.Evidence
“Evidence” is the sworn testimony of witnesses, the exhibits admitted
into evidence, and anything else I told you to consider as evidence.
Nothing that the attorneys say is evidence. In their opening statements
and closing arguments, the attorneys 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 helped you to understand the witnesses’ answers. Do not assume
that something is true just because one of the attorneys asked a
question that suggested it was true.
During the trial, the attorneys may have objected to questions or moved
to strike answers given by the witnesses. I ruled on the objections
according to the law. If I sustained an objection, you must ignore the
question. If the witness was not permitted to answer, do not guess what
the answer might have been or why I ruled as I did. If I ordered
testimony stricken from the record you must disregard it and must not
consider that testimony for any purpose.
You must disregard anything you saw or heard when the court was not
in session, even if it was done or said by one of the parties or witnesses.
[During the trial, you were told that the People and the defense agreed,
or stipulated, to certain facts. This means that they both accept those
facts as true. Because there is no dispute about those facts you must
also accept them as true.]
The court reporter has made a record 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 you. You must accept the court
reporter’s record as accurate.
New January 2006; Revised June 2007, August 2009, February 2012
BENCH NOTES
Instructional Duty
There is no sua sponte duty to instruct on these evidentiary topics; however,
instruction on these topics has been approved. (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].)
If the parties stipulated to one or more facts, give the bracketed paragraph that
begins with “During the trial, you were told.”
48
0024
AUTHORITY
• 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].
• Stipulations. Palmer v. City of Long Beach (1948) 33 Cal.2d 134, 141–142
[199 P.2d 952].
• Striking Testimony. People v. Horton (1995) 11 Cal.4th 1068, 1121 [47
Cal.Rptr.2d 516, 906 P.2d 478].
Secondary Sources
5 Witkin & Epstein, California Criminal Law (3d ed. 2000), Criminal Trial, §§ 636,
643.
4Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 83,
Evidence, §§ 83.01[1], 83.02[2] (Matthew Bender).
RELATED ISSUES
Non-Testifying Courtroom Conduct
There is authority for an instruction informing the jury to disregard defendant’s
in-court, but non-testifying behavior. (People v. Garcia (1984) 160 Cal.App.3d 82,
90 [206 Cal.Rptr. 468] [defendant was disruptive in court; court instructed jurors
they should not consider this behavior in deciding guilt or innocence].) However, if
the defendant has put his or her character in issue or another basis for relevance
exists, such an instruction should not be given. (People v. Garcia, supra, 160
Cal.App.3d at p. 91, fn. 7; People v. Foster (1988) 201 Cal.App.3d 20, 25 [246
Cal.Rptr. 855].)
POST-TRIAL: INTRODUCTORY CALCRIM No. 222
49
0025