California Criminal Jury Instructions (CALCRIM) (2017)

330. Testimony of Child 10 Years of Age or Younger

Download PDF
(ii) Particular Types of Witnesses
330.Testimony of Child 10 Years of Age or Younger
You have heard testimony from a child who is age 10 or younger. As
with any other witness, you must decide whether the child gave truthful
and accurate testimony.
In evaluating the child’s testimony, you should consider all of the
factors surrounding that testimony, including the child’s age and level of
cognitive development.
When you evaluate the child’s cognitive development, consider the
child’s ability to perceive, understand, remember, and communicate.
While a child and an adult witness may behave differently, that
difference does not mean that one is any more or less believable than
the other. You should not discount or distrust the testimony of a witness
just because he or she is a child.
New January 2006; Revised February 2014
BENCH NOTES
Instructional Duty
The court has no sua sponte duty to give an instruction on child witnesses;
however, it must be given on request. (Pen. Code, § 1127f.)
AUTHORITY
• Instructional Requirements. Pen. Code, § 1127f.
• This Instruction Upheld People v. Fernandez (2013) 216 Cal.App.4th 540,
558–560 [157 Cal.Rptr.3d 43].
Secondary Sources
3 Witkin, California Evidence (4th ed. 2000) Presentation, § 88(3).
5Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, § 642.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 82,
Witnesses, §§ 82.05[1], [2][a], [b], 82.07, 82.22[3][c], Ch. 85, Submission to Jury
and Verdict, § 85.03[2][b] (Matthew Bender).
RELATED ISSUES
Due Process/Equal Protection Challenges
“The instruction provides sound and rational guidance to the jury in assessing the
credibility of a class of witnesses as to whom ‘traditional assumptions’ may
previously have biased the fact-finding process.” (People v. Gilbert (1992) 5
Cal.App.4th 1372, 1392–1394 [7 Cal.Rptr.2d 660] [instructing jury to make
94
0022
credibility determinations based on child’s age, level of cognitive development, and
other factors surrounding child’s testimony does not inflate testimony of child
witness and thereby lessen prosecutor’s burden of proof and deny defendant due
process and equal protection].)
EVIDENCE CALCRIM No. 330
95
0023