Criminal Law

222. Evidence

You must decide what the facts are in this case. You must use only the evidence that was presented in this courtroom [or during a jury view]. "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.

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 notes be read to you. You must accept the court reporter's notes as accurate.

[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. Because there is no dispute about those facts you must accept them as true.]

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."


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), §§ 636, 643.

4 Millman, 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, at p. 91, fn. 7; People v. Foster (1988) 201 Cal.App.3d 20, 25 [246 Cal.Rptr. 855].)

(New January 2006)