California Criminal Jury Instructions (CALCRIM) (2017)

226. Witnesses

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226.Witnesses
You alone must judge the credibility or believability of the witnesses. In
deciding whether testimony is true and accurate, use your common
sense and experience. You must judge the testimony of each witness by
the same standards, setting aside any bias or prejudice you may have.
You may believe all, part, or none of any witness’s testimony. Consider
the testimony of each witness and decide how much of it you believe.
In evaluating a witness’s testimony, you may consider anything that
reasonably tends to prove or disprove the truth or accuracy of that
testimony. Among the factors that you may consider are:
How well could the witness see, hear, or otherwise perceive the
things about which the witness testified?
How well was the witness able to remember and describe what
happened?
What was the witness’s behavior while testifying?
Did the witness understand the questions and answer them
directly?
Was the witness’s testimony influenced by a factor such as bias
or prejudice, a personal relationship with someone involved in
the case, or a personal interest in how the case is decided?
What was the witness’s attitude about the case or about
testifying?
Did the witness make a statement in the past that is consistent or
inconsistent with his or her testimony?
How reasonable is the testimony when you consider all the other
evidence in the case?
[Did other evidence prove or disprove any fact about which the
witness testified?]
[Did the witness admit to being untruthful?]
[What is the witness’s character for truthfulness?]
[Has the witness been convicted of a felony?]
[Has the witness engaged in [other] conduct that reflects on his
or her believability?]
[Was the witness promised immunity or leniency in exchange for
his or her testimony?]
Do not automatically reject testimony just because of inconsistencies or
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conflicts. Consider whether the differences are important or not. People
sometimes honestly forget things or make mistakes about what they
remember. Also, two people may witness the same event yet see or hear
it differently.
[If the evidence establishes that a witness’s character for truthfulness
has not been discussed among the people who know him or her, you
may conclude from the lack of discussion that the witness’s character
for truthfulness is good.]
[If you do not believe a witness’s testimony that he or she no longer
remembers something, that testimony is inconsistent with the witness’s
earlier statement on that subject.]
[If you decide that a witness deliberately lied about something
significant in this case, you should consider not believing anything that
witness says. Or, if you think the witness lied about some things, but
told the truth about others, you may simply accept the part that you
think is true and ignore the rest.]
New January 2006; Revised June 2007, April 2008
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on factors relevant to a witness’s
credibility. (People v. Rincon-Pineda (1975) 14 Cal.3d 864, 883–884 [123 Cal.Rptr.
119, 538 P.2d 247].) Although there is no sua sponte duty to instruct on
inconsistencies in testimony or a witness who lies, there is authority approving
instruction on both topics. (Dodds v. Stellar (1946) 77 Cal.App.2d 411, 426 [175
P.2d 607]; People v. Murillo (1996) 47 Cal.App.4th 1104, 1107 [55 Cal.Rptr.2d
21].)
The court may strike any of the enumerated impermissible bases for bias that are
clearly inapplicable in a given case.
Give all of the bracketed factors that are relevant based on the evidence. (Evid.
Code, § 780(e), (i), and (k).)
Give any of the final three bracketed paragraphs if relevant based on the evidence.
If the court instructs on a prior felony conviction or prior misconduct admitted
pursuant to People v. Wheeler (1992) 4 Cal.4th 284 [14 Cal.Rptr.2d 418, 841 P.2d
938], the court should consider whether to give CALCRIM No. 316, Additional
Instructions on Witness Credibility—Other Conduct. (See Bench Notes to that
instruction.)
AUTHORITY
• Factors. Evid. Code, § 780; People v. Rincon-Pineda (1975) 14 Cal.3d 864,
883–884 [123 Cal.Rptr. 119, 538 P.2d 247].
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• Inconsistencies. Dodds v. Stellar (1946) 77 Cal.App.2d 411, 426 [175 P.2d
607].
• Witness Who Lies. People v. Murillo (1996) 47 Cal.App.4th 1104, 1107 [55
Cal.Rptr.2d 21].
• Proof of Character by Negative Evidence. People v. Adams (1902) 137 Cal.
580, 582 [70 P. 662].
• This Instruction Upheld. People v. Ibarra (2007) 156 Cal.App.4th 1174,
1187–1188 [67 Cal.Rptr.3d 871].
Secondary Sources
5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, § 642.
4Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, §§ 85.02[1A][b], [2][b], [c], 85.03[2][b] (Matthew
Bender).
227–239. Reserved for Future Use
POST-TRIAL: INTRODUCTORY CALCRIM No. 226
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