California Criminal Jury Instructions (CALCRIM) (2017)

337. Witness in Custody or Physically Restrained

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337.Witness in Custody or Physically Restrained
<Alternative A—physically restrained>
[When <insert name[s] of witness[es]> testified, (he/she/
they) (was/were) physically restrained. Do not speculate about the
reason. You must completely disregard this circumstance in deciding the
issues in this case. Do not consider it for any purpose or discuss it
during your deliberations. Evaluate the witness’s testimony according to
the instructions I have given you.]
<Alternative B—in custody>
[When <insert name[s] of witness[es]> testified, (he/she/
they) (was/were) in custody. [Do not speculate about the reason.] The
fact that a witness is in custody does not by itself make a witness more
or less believable. Evaluate the witness’s testimony according to the
instructions I have given you.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction if the witness has been
physically restrained in a manner that is visible to the jury. (See People v. Duran
(1976) 16 Cal.3d 282, 291–292 [127 Cal.Rptr. 618, 545 P.2d 1322]; Wilson v.
McCarthy (9th Cir. 1985) 770 F.2d 1482, 1485; People v. Metzger (1904) 143 Cal.
447, 448 [77 P. 155].) If the restraints are not visible, do not give this instruction
unless requested. For an in-custody witness, give this instruction on request.
Do not give this instruction for an in-custody informant unless the witness is also
physically restrained. When an in-custody informant testifies, the court must give
CALCRIM No. 336, In-Custody Informant. For an in-custody informant, the court
may only give this instruction if it is limited to the issue of physical restraints.
In alternative B, always give the bracketed sentence that begins with “Do not
speculate” unless the jury has been informed of the reason the witness is in
custody.
The rules articulated in People v. Duran (1976) 16 Cal.3d 282, 290–292 [127
Cal.Rptr. 618, 545 P.2d 1322] regarding physical restraints of a defendant at trial
also apply to physical restraint of a defense witness. (Id. at p. 288, fn. 4.)
AUTHORITY
• Instructional Duty. People v. Duran (1976) 16 Cal.3d 282, 291–292 [127
Cal.Rptr. 618, 545 P.2d 1322]; Wilson v. McCarthy (9th Cir. 1985) 770 F.2d
1482, 1485; People v. Metzger (1904) 143 Cal. 447, 448 [77 P. 155].
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• Requirements Before Restraints Used. People v. Duran (1976) 16 Cal.3d 282,
290–292 [127 Cal.Rptr. 618, 545 P.2d 1322]; People v. Mar (2002) 28 Cal.4th
1201, 1218 [124 Cal.Rptr.2d 161, 52 P.3d 95].
• Use of Stun Belts. People v. Mar (2002) 28 Cal.4th 1201, 1205–1206 [124
Cal.Rptr.2d 161, 52 P.3d 95].
Secondary Sources
5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial,
§§ 11–16.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 80,
Defendant’s Trial Rights, § 80.09[6][b][v] (Matthew Bender).
338–349. Reserved for Future Use
EVIDENCE CALCRIM No. 337
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