Wednesday, September 19, 2007

Credibility or Believability of California DUI trial witnesses

California DUI criminal defense lawyers often find their DUI cases being decided on the credibility of the witnesses.

Many times a California DUI crminal defense attorney will catch a DUI officer fabricating or changing his testimony. That is where this jury instruction comes in:

Calcrim Jury Instruction for California DUI

226. Witnesses

You alone, must judge the credibility or believability of the
witnesses. In deciding whether testimony is true and accurate, use
your common sense and experience. The testimony of each witness
must be judged by the same standard. You must set aside any bias
or prejudice you may have, including any based on the witness’s
disability, gender, race, religion, ethnicity, sexual orientation,
gender identity, age, national origin, [or] socioeconomic status[, or
You may believe all, part, or none of any witness’s testimony.
Consider the testimony of each witness and decide how much of it
you believe.
In evaluating a witness’s testimony, you may consider anything
that reasonably tends to prove or disprove the truth or accuracy of
that testimony. Among the factors that you may consider are:
• How well could the witness see, hear, or otherwise perceive
the things about which the witness testified?
• How well was the witness able to remember and describe
what happened?
• What was the witness’s behavior while testifying?
• Did the witness understand the questions and answer them
• Was the witness’s testimony influenced by a factor such as
bias or prejudice, a personal relationship with someone
involved in the case, or a personal interest in how the case
is decided?
• What was the witness’s attitude about the case or about
• Did the witness make a statement in the past that is
consistent or inconsistent with his or her testimony?
• How reasonable is the testimony when you consider all the
other evidence in the case?
• [Did other evidence prove or disprove any fact about which
the witness testified?]
• [Did the witness admit to being untruthful?]
• [What is the witness’s character for truthfulness?]
• [Has the witness been convicted of a felony?]
• [Has the witness engaged in [other] conduct that reflects on
his or her believability?]
• [Was the witness promised immunity or leniency in
exchange for his or her testimony?]
Do not automatically reject testimony just because of
inconsistencies or 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

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])