California Criminal Jury Instructions (CALCRIM) (2017)

336. In-Custody Informant

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336.In-Custody Informant
View the (statement/ [or] testimony) of an in-custody informant against
the defendant with caution and close scrutiny. In evaluating such (a
statement/ [or] testimony), you should consider the extent to which it
may have been influenced by the receipt of, or expectation of, any
benefits. This does not mean that you may arbitrarily disregard such (a
statement/ [or] 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.
<Give the following paragraph if the issue of whether a witness was an in-
custody informant is in dispute>
[An in-custody informant is someone [, other than (a/an) (codefendant[,]/
[or] percipient witness[,]/ [or] accomplice[,]/ [or] coconspirator,)] whose
(statement/ [or] testimony) is based on [a] statement[s] the defendant
allegedly made while both the defendant and the informant were held
within a correctional institution. If you decide that a (declarant/ [or]
witness) was not an in-custody informant, then you should evaluate his
or her (statement/ [or] testimony) as you would that of any other
<Give the first bracketed phrase if the issue of whether a witness was an
in-custody informant is in dispute>
[If you decide that a (declarant/ [or] witness) was an in-custody
informant, then] (Y/)you may not convict the defendant of
<insert charged crime[s]> based on the (statement/ [or] testimony) of
that in-custody informant alone. [Nor may you find a special
circumstance true/ [or] use evidence in aggravation based on the
(statement/ [or] testimony) of that in-custody informant alone.]
You may use the (statement/ [or] testimony) of an in-custody informant
only if:
1. The (statement/ [or] testimony) is supported by other evidence
that you believe;
2. That supporting evidence is independent of the (statement/ [or]
3. That supporting evidence connects the defendant to the
commission of the crime[s] [or to the special circumstance/ [or]
to evidence in aggravation]. The supporting evidence is not
sufficient if it merely shows that the charged crime was
committed [or proves the existence of a special circumstance/
[or] evidence in aggravation].
[Supporting evidence, however, may be slight. It does not need to be
enough, by itself, to prove that the defendant is guilty of the charged
crime, and it does not need to support every fact (mentioned by the
accomplice in the statement/ [or] about which the witness testified). On
the other hand, it is not enough if the supporting evidence merely shows
that a crime was committed or the circumstances of its commission. The
supporting evidence must tend to connect the defendant to the
commission of the crime.]
[Do not use the (statement/ [or] testimony) of an in-custody informant
to support the (statement/ [or] testimony) of another in-custody
informant unless you are convinced that <insert name of
party calling in-custody informant as witness> has proven it is more likely
than not that the in-custody informant has not communicated with
another in-custody informant on the subject of the testimony.
[A percipient witness is someone who personally perceived the matter
that he or she testified about.
<Insert the name of the in-custody informant if his or her statue is not in
[<insert name of witness> is an in-custody informant.]
[<insert name of institution> is a correctional institution.]
New January 2006; Revised August 2012, February 2016
Instructional Duty
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.
The committee awaits guidance from courts of review on the issue of whether this
instruction applies to witnesses other than those called by the People. Until the
issue is resolved, the committee provides this version consistent with the language
of the new statute.
If the court concludes that the corroboration requirement applies to an out-of-court
statement, use the word “statement” throughout the instruction. (See discussion in
Related Issues section to CALCRIM No. 334, Accomplice Testimony Must Be
Corroborated: Dispute Whether Witness Is Accomplice.)
Related Instruction
CALCRIM No. 337, Witness in Custody or Physically Restrained.
• Instructional Duty. Pen. Code, §§ 1111.5, 1127a.
In-Custody Informant Testimony and Accomplice Testimony May Corroborate
Each Other. People v. Huggins (2015) 235 Cal.App.4th 715, 719–720 [185
Cal.Rptr.3d 672].
Secondary Sources
2 Witkin, California Evidence (5th ed. 2012) Witnesses, § 20.
3 Witkin, California Evidence (4th ed. 2000) Presentation at Trial, §§ 120, 123.
2 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 30,
Confessions and Admissions, § 30.32[2] (Matthew Bender).
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 82,
Witnesses, § 82.03A, Ch. 85, Submission to Jury and Verdict, §§ 85.02[2][b],
85.03[2][b] (Matthew Bender).