Section 105 | CALCRIM (Jury Instructions)

conflicts. Consider whether the differences are important or not. People
sometimes honestly forget things or make mistakes about what they
remember. Also, two people may witness the same event yet see or hear
it differently.
[If the evidence establishes that a witness’s character for truthfulness has
not been discussed among the people who know him or her, you may
conclude from the lack of discussion that the witness’s character for
truthfulness is good.]
[If you do not believe a witness’s testimony that he or she no longer
remembers something, that testimony is inconsistent with the witness’s
earlier statement on that subject.]
[If you decide that a witness deliberately lied about something significant
in this case, you should consider not believing anything that witness says.
Or, if you think the witness lied about some things, but told the truth
about others, you may simply accept the part that you think is true and
ignore the rest.]
New January 2006; Revised June 2007, April 2008, September 2020
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on factors relevant to a witness’s
credibility. (People v. Rincon-Pineda (1975) 14 Cal.3d 864, 883–884 [123 Cal.Rptr.
119, 538 P.2d 247].) Although there is no sua sponte duty to instruct on
inconsistencies in testimony or a witness who lies, there is authority approving
instruction on both topics. (Dodds v. Stellar (1946) 77 Cal.App.2d 411, 426 [175
P.2d 607]; People v. Murillo (1996) 47 Cal.App.4th 1104, 1107 [55 Cal.Rptr.2d 21].)
The court may strike any of the enumerated impermissible bases for bias that are
clearly inapplicable in a given case.
Give all of the bracketed factors that are relevant based on the evidence. (Evid.
Code, § 780(e), (i), and (k).)
Give any of the final three bracketed paragraphs if relevant based on the evidence.
AUTHORITY
•
Factors. Evid. Code, § 780; People v. Rincon-Pineda (1975) 14 Cal.3d 864,
883–884 [123 Cal.Rptr. 119, 538 P.2d 247].
•
Proof of Character For Truthfulness From Evidence of Lack of Discussion.
People v. Jimenez (2016) 246 Cal.App.4th 726, 732 [201 Cal.Rptr.3d 76]; People
v. Adams (1902) 137 Cal. 580, 582 [70 P. 662].
•
Inconsistencies. Dodds v. Stellar (1946) 77 Cal.App.2d 411, 426 [175 P.2d 607].
•
Witness Who Lies. People v. Murillo (1996) 47 Cal.App.4th 1104, 1107 [55
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Cal.Rptr.2d 21]; People v. Reyes (1987) 195 Cal.App.3d 957, 965 [240 Cal.Rptr.
752]; People v. Johnson (1986) 190 Cal.App.3d 187, 192–194 [237 Cal.Rptr.
479].
SECONDARY SOURCES
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial, § 725.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, §§ 85.02[2][b], [c], 85.03[2][b] (Matthew Bender).
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