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 or not 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 such [a] statement[s].
[You must consider with caution evidence of a defendant's oral statement unless it was written or otherwise recorded.]
The court has a sua sponte duty to give the bracketed cautionary instruction for evidence of out-of-court oral statements made by the defendant. (People v. Beagle (1972) 6 Cal.3d 441, 455-456 [99 Cal.Rptr. 313, 492 P.2d 1].) The only exception to this is in the penalty phase of a capital trial; then, there is no sua sponte duty to instruct, although the bracketed paragraph should be given if requested. (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.
When a defendant's statement is an element of the crime, as in conspiracy or criminal threats (Pen. Code, § 422), this instruction does not apply. (People v. Zichko (2004) 118 Cal.App.4th 1055, 1057 [13 Cal.Rptr.3d 509].)
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.
Instructional Requirements. People v. Beagle (1972) 6 Cal.3d 441, 455-456 [99 Cal.Rptr. 313, 492 P.2d 1]; People v. Livaditis (1992) 2 Cal.4th 759, 784 [9 Cal.Rptr.2d 72, 831 P.2d 297].
5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, §§ 614, 641, 650.
1 Witkin, California Evidence (4th ed. 2000) Hearsay, § 51.
3 Witkin, California Evidence (4th ed. 2000) Presentation, § 113.
2 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 30, Confessions and Admissions, § 30.57 (Matthew Bender).
(New January 2006)