CALCRIM No. 358. Evidence of Defendant’s Statements

Judicial Council of California Criminal Jury Instructions (2023 edition)

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358.Evidence of Defendant’s Statements
You have heard evidence that the defendant made [an] [oral] [and] [a]
[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
New January 2006; Revised June 2007, December 2008, February 2014, August
2015, September 2017, September 2020, March 2023
Instructional Duty
There is no sua sponte duty to give this instruction. People v. Diaz (2015) 60
Cal.4th 1176, 1190 [185 Cal.Rptr.3d 431, 345 P.3d 62].
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,
supra, 60 Cal.4th at p. 1192.) 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 a defendant suspected of murder made a statement in a custodial interview that
did not comply with Penal Code section 859.5, give the following additional
Consider with caution any statement tending to show defendant’s guilt made 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,
supra, 60 Cal.4th at p. 1187, 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.
Instructional Requirements. People v. Diaz, supra, 60 Cal.4th at pp. 1187, 1190,
1192;People v. Livaditis, supra, 2 Cal.4th at p. 784.
Custodial Statements by Defendants Suspected of Murder. Pen. Code,
§ 859.5(e)(3).
This Instruction Upheld. People v. Tran (2022) 13 Cal.5th 1169, 1198-1201 [298
Cal.Rptr.3d 150, 515 P.3d 1210].
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).

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