336. In-Custody Informant
The testimony of an in-custody informant should be viewed with caution and close scrutiny. In evaluating such testimony, you should consider the extent to which it may have been influenced by the receipt of, or expectation of, any benefits from the party calling that witness. This does not mean that you may arbitrarily disregard such testimony, but you should give it the weight to which you find it to be entitled in the light of all the evidence in the case.
[An in-custody informant is someone[, other than (a/an) (codefendant[,]/ [or] percipient witness[,]/ [or] accomplice[,]/ [or] coconspirator,)] whose testimony is based on [a] statement[s] the defendant allegedly made while both the defendant and the informant were held within a correctional institution.]
[ <insert name of witness> is an in-custody informant.]
[ <insert name of institution> is a correctional institution.]
The court must give this instruction on request. (Pen. Code, § 1127a.)
The court should also be aware of the following statutory provisions relating to in-custody informants: Penal Code sections 1127a(c) [prosecution must disclose consideration given to witness]; 1191.25 [prosecution must notify victim of in-custody informant]; and 4001.1 [limitation on payments to in-custody informants and action that may be taken by in-custody informant].
If there is no issue over whether the witness is an in-custody informant and the parties agree, the court may instruct the jury that the witness "is an in-custody informant." If there is an issue over whether the witness is an in-custody informant, give the bracketed definition of the term.
CALCRIM No. 337, Witness in Custody or Physically Restrained.
Instructional Duty. Pen. Code, § 1127a.
5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trials, § 653.
2 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 30, Confessions and Admissions, § 30.32 (Matthew Bender).
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 82, Witnesses, § 82.03A, Ch. 85, Submission to Jury and Verdict, §§ 85.02[b], 85.03[b] (Matthew Bender).
(New January 2006)