California Criminal Jury Instructions (CALCRIM) (2017)

315. Eyewitness Identification

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B. WITNESSES
(i) Regarding Specific Testimony
315.Eyewitness Identification
You have heard eyewitness testimony identifying the defendant. As with
any other witness, you must decide whether an eyewitness gave truthful
and accurate testimony.
In evaluating identification testimony, consider the following questions:
Did the witness know or have contact with the defendant before
the event?
How well could the witness see the perpetrator?
What were the circumstances affecting the witness’s ability to
observe, such as lighting, weather conditions, obstructions,
distance, [and] duration of observation[, and <insert
any other relevant circumstances>]?
How closely was the witness paying attention?
Was the witness under stress when he or she made the
observation?
Did the witness give a description and how does that description
compare to the defendant?
How much time passed between the event and the time when the
witness identified the defendant?
Was the witness asked to pick the perpetrator out of a group?
Did the witness ever fail to identify the defendant?
Did the witness ever change his or her mind about the
identification?
How certain was the witness when he or she made an
identification?
Are the witness and the defendant of different races?
[Was the witness able to identify other participants in the
crime?]
[Was the witness able to identify the defendant in a photographic
or physical lineup?]
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[<insert other relevant factors raised by the
evidence>.]
Were there any other circumstances affecting the witness’s
ability to make an accurate identification?
The People have the burden of proving beyond a reasonable doubt that
it was the defendant who committed the crime. If the People have not
met this burden, you must find the defendant not guilty.
New January 2006; Revised June 2007
BENCH NOTES
Instructional Duty
The court has no sua sponte duty to give an instruction on eyewitness testimony.
(People v. Richardson (1978) 83 Cal.App.3d 853, 863 [148 Cal.Rptr. 120],
disapproved on other grounds by People v. Saddler (1979) 24 Cal.3d 671, 682 [156
Cal.Rptr. 871, 597 P.2d 130].) An instruction relating eyewitness identification to
reasonable doubt, including any relevant “pinpoint” factors, must be given by the
trial court on request “[w]hen an eyewitness identification of the defendant is a key
element of the prosecution’s case but is not substantially corroborated by evidence
giving it independent reliability.” (People v. Wright (1988) 45 Cal.3d 1126,
1143–1144 [248 Cal.Rptr. 600, 755 P.2d 1049], quoting People v. McDonald (1984)
37 Cal.3d 351, 377 [208 Cal.Rptr. 236, 690 P.2d 709], overruled on other grounds
in People v. Mendoza (2000) 23 Cal.4th 896, 914 [98 Cal.Rptr.2d 431, 4 P.3d 265];
People v. Fudge (1994) 7 Cal.4th 1075, 1110 [31 Cal.Rptr.2d 321, 875 P.2d 36];
People v. Palmer (1984) 154 Cal.App.3d 79, 89 [203 Cal.Rptr. 474] [error to refuse
defendant’s requested instruction on eyewitness testimony].)
AUTHORITY
• Factors. People v. Wright (1988) 45 Cal.3d 1126, 1139, fn. 9, 1141 [248
Cal.Rptr. 600, 755 P.2d 1049]; People v. West (1983) 139 Cal.App.3d 606, 609
[189 Cal.Rptr. 36].
• Reasonable Doubt. People v. Hall (1980) 28 Cal.3d 143, 159–160 [167
Cal.Rptr. 844, 616 P.2d 826], overruled on other grounds in People v. Newman
(1999) 21 Cal.4th 413, 422, fn. 6 [87 Cal.Rptr.2d 474, 981 P.2d 98].
• This Instruction Upheld. People v. Golde (2008) 163 Cal.App.4th 101, 119 [77
Cal.Rptr.3d 120].
Secondary Sources
5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, § 640.
2 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 31,
Eyewitness Identification, §§ 31.01–31.07 (Matthew Bender).
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.03[2][b] (Matthew Bender).
CALCRIM No. 315 EVIDENCE
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COMMENTARY
The court should give the unbracketed factors, if requested, in every case in which
identity is disputed. The bracketed factors should be given if requested and
factually appropriate. A blank space has also been provided for the court to include
any factual circumstances relevant to eyewitness identification that have not been
addressed in the preceding list of factors.
In People v. Wright (1988) 45 Cal.3d 1126, 1139 [248 Cal.Rptr. 600, 755 P.2d
1049], the court suggested that the trial court select factors from an approved list of
eyewitness identification factors and then give counsel the opportunity to
supplement with any additional relevant factors. (Id. at pp. 1126, 1143.) Additional
“pinpoint” factors should be neutrally written, brief, and nonargumentative. (Ibid.;
see also People v. Gaglione (1994) 26 Cal.App.4th 1291, 1302–1303 [32
Cal.Rptr.2d 169], overruled on other grounds in People v. Martinez (1995) 11
Cal.4th 434, 452 [45 Cal.Rptr.2d 903, 908 P.2d 1037].)
RELATED ISSUES
Unreliability of Eyewitness Identification
An instruction to view eyewitness testimony with caution and that “mistaken
identification is not uncommon” should not be given because it improperly singles
out this testimony as suspect. (People v. Wright (1988) 45 Cal.3d 1126, 1153 [248
Cal.Rptr. 600, 755 P.2d 1049] [special cautionary instruction unnecessary as
duplicative of required eyewitness “factors” instruction]; see also People v. Benson
(1990) 52 Cal.3d 754, 805 fn. 12 [276 Cal.Rptr. 827, 802 P.2d 330].) If a defendant
wants to present information on the unreliability of eyewitness identifications under
a particular set of circumstances, he or she must use means other than a jury
instruction, such as expert testimony. (People v. Wright, supra, 45 Cal.3d at pp.
1153–1154.)
EVIDENCE CALCRIM No. 315
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