California Criminal Jury Instructions (CALCRIM) (2017)

358. Evidence of Defendant's Statements

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358.Evidence of Defendant’s Statements
You have heard evidence that the defendant made [an] oral or written
statement[s] (before the trial/while the court was not in session). You
must decide whether the defendant made any (such/of these)
statement[s], in whole or in part. If you decide that the defendant made
such [a] statement[s], consider the statement[s], along with all the other
evidence, in reaching your verdict. It is up to you to decide how much
importance to give to the statement[s].
[Consider with caution any statement made by (the/a) defendant tending
to show (his/her) guilt unless the statement was written or otherwise
recorded.]
New January 2006; Revised June 2007, December 2008, February 2014, August
2015
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction when there is evidence of
an out-of-court oral statement by the defendant.
Give the bracketed cautionary instruction on request if there is evidence of an
incriminating out-of-court oral statement made by the defendant. (People v. Diaz
(2015) 60 Cal.4th 1176 [185 Cal.Rptr.3d 431, 345 P.3d 62].) In the penalty phase
of a capital trial, the bracketed paragraph should be given only if the defense
requests it. (People v. Livaditis (1992) 2 Cal.4th 759, 784 [9 Cal.Rptr.2d 72, 831
P.2d 297].)
The bracketed cautionary instruction is not required when the defendant’s
incriminating statements are written or tape-recorded. (People v. Gardner (1961)
195 Cal.App.2d 829, 833 [16 Cal.Rptr. 256]; People v. Hines (1964) 61 Cal.2d 164,
173 [37 Cal.Rptr. 622, 390 P.2d 398], disapproved on other grounds in People v.
Murtishaw (1981) 29 Cal.3d 733, 774, fn. 40 [175 Cal.Rptr. 738, 631 P.2d 446];
People v. Scherr (1969) 272 Cal.App.2d 165, 172 [77 Cal.Rptr. 35]; People v.
Slaughter (2002) 27 Cal.4th 1187, 1200 [120 Cal.Rptr.2d 477, 47 P.3d 262]
[admonition to view non-recorded statements with caution applies only to a
defendant’s incriminating statements].) If the jury heard both inculpatory and
exculpatory, or only inculpatory, statements attributed to the defendant, give the
bracketed paragraph. If the jury heard only exculpatory statements by the
defendant, do not give the bracketed paragraph.
If the defendant was a minor suspected of murder who made a statement in a
custodial interview that did not comply with Penal Code section 859.5, give the
following additional instruction:
Consider with caution any statement tending to show defendant’s guilt made
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by (him/her) during <insert description of interview, e.g., interview
with Offıcer Smith of October 15, 2013>.
When a defendant’s statement is a verbal act, as in conspiracy cases, this
instruction applies. (People v. Bunyard (1988) 45 Cal.3d 1189, 1224 [249 Cal.Rptr.
71, 756 P.2d 795]; People v. Ramirez (1974) 40 Cal.App.3d 347, 352 [114 Cal.Rptr.
916]; see also, e.g., Peabody v. Phelps (1858) 9 Cal. 213, 229 [similar, in civil
cases.
When a defendant’s statement is an element of the crime, as in conspiracy or
criminal threats (Pen. Code, § 422), this instruction still applies. (People v. Diaz
(2015) 60 Cal.4th 1176 [185 Cal.Rptr.3d 431, 345 P.3d 62], overruling People v.
Zichko (2004) 118 Cal.App.4th 1055, 1057 [13 Cal.Rptr.3d 509].)
Related Instructions
If out-of-court oral statements made by the defendant are prominent pieces of
evidence in the trial, then CALCRIM No. 359, Corpus Delicti: Independent
Evidence of a Charged Crime, may also have to be given together with the
bracketed cautionary instruction.
AUTHORITY
• Instructional Requirements People v. Diaz (2015) 60 Cal.4th 1176 [185
Cal.Rptr.3d 431, 345 P.3d 62]; People v. Livaditis (1992) 2 Cal.4th 759, 784 [9
Cal.Rptr.2d 72, 831 P.2d 297].
• Custodial Statements by Minors Suspected of Murder Pen. Code, § 859.5,
effective 1/1/2014.
Secondary Sources
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial
§§ 683–686, 723, 724, 733.
1 Witkin, California Evidence (5th ed. 2012), Hearsay § 52.
3 Witkin, California Evidence (5th ed. 2012), Presentation at Trial § 127.
2 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 30,
Confessions and Admissions, § 30.57 (Matthew Bender).
EVIDENCE CALCRIM No. 358
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