302.Evaluating Conﬂicting Evidence
If you determine there is a conﬂict in the evidence, you must decide
what evidence, if any, to believe. Do not simply count the number of
witnesses who agree or disagree on a point and accept the testimony of
the greater number of witnesses. On the other hand, do not disregard
the testimony of any witness without a reason or because of prejudice or
a desire to favor one side or the other. What is important is whether the
testimony or any other evidence convinces you, not just the number of
witnesses who testify about a certain point.
New January 2006; Revised June 2007
The court has a sua sponte duty to instruct on weighing contradictory evidence
unless corroborating evidence is required. (People v. Rincon-Pineda (1975) 14
Cal.3d 864, 884 [123 Cal.Rptr. 119, 538 P.2d 247].)
• Instructional Requirements. People v. Rincon-Pineda (1975) 14 Cal.3d 864,
884 [123 Cal.Rptr. 119, 538 P.2d 247].
• This Instruction is Upheld. People v. Reyes (2007) 151 Cal.App.4th 1491,
1497 [60 Cal.Rptr.3d 777]; People v. Ibarra (2007) 156 Cal.App.4th 1174, 1190
[67 Cal.Rptr.3d 871].
3 Witkin, California Evidence (4th ed. 2000) Presentation, § 88.
5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, § 649.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.03[b] (Matthew Bender).