Criminal Law

319. Prior Statements of Unavailable Witness

<Insert name of unavailable witness> did not testify in this trial, but (his/her) testimony, taken at another time, was (read/played) for you. In addition to this testimony, you have heard evidence that <insert name of unavailable witness> made (another/other) statement[s]. [I am referring to the statement[s] about which <insert name[s]> testified.]

If you conclude that <insert name of unavailable witness> made (that/those) other statement[s], you may only consider (it/them) in a limited way. You may only use (it/them) in deciding whether to believe the testimony of <insert name of unavailable witness> that was (read/played) here at trial. You may not use (that/those) other statement[s] as proof that the information contained in (it/them) is true, nor may you use (it/ them) for any other reason.

Bench Notes

Instructional Duty

The court has no sua sponte duty to give this instruction. (People v. Griffin (1988) 46 Cal.3d 1011, 1026 [251 Cal.Rptr. 643, 761 P.2d 103].)

Give this instruction when prior inconsistent statements of an unavailable witness were admitted for impeachment purposes. (People v. Williams (1976) 16 Cal.3d 663, 668-669 [128 Cal.Rptr. 888, 547 P.2d 1000].) If a testifying witness was confronted with prior inconsistent statements, give CALCRIM No. 318, Prior Statements as Evidence. If the prior statements were obtained by a peace officer in violation of Miranda, give CALCRIM No. 356, Miranda-Defective Statements.

Evidence Code section 1294 creates an exception to the impeachment-only rule in Williams for the use of prior inconsistent statements given as testimony in a preliminary hearing or prior proceeding in the same criminal matter.


Instructional Requirements. People v. Williams (1976) 16 Cal.3d 663, 668-669 [128 Cal.Rptr. 888, 547 P.2d 1000]; see Evid. Code, §§ 145, 240, 770, 791, 1235, 1236, 1291.

Secondary Sources

1 Witkin, California Evidence (4th ed. 2000) Hearsay, § 157.

4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 83, Evidence, § 83.13[3][e] (Matthew Bender).

(New January 2006)