The testimony that <insert name of witness> has given under oath (was/will be) (read to/played for) you because (he/she) is not available. You must evaluate this testimony by the same standards that you apply to a witness who testified here in court.

BENCH NOTES

Instructional Duty

The court has discretion to give an instruction on the weight a jury should give to former testimony of an unavailable witness. (People v. Wharton (1991) 53 Cal.3d 522, 598–599 [280 Cal.Rptr. 631, 809 P.2d 290].) No case holds that a trial court has a sua sponte duty to instruct on the use of former testimony of an unavailable witness.

AUTHORITY

·            Instructional Requirements. People v. Wharton (1991) 53 Cal.3d 522, 598–599 [280 Cal.Rptr. 631, 809 P.2d 290].

·            Admissibility of Former Testimony. Evid. Code, § 1291.

·            Admissibility of Hearsay Evidence or Deposition Testimony Generally. Pen. Code, § 686(3).

·            Former Testimony Defined. Evid. Code, § 1290.

·            Unavailable Witness Defined. Evid. Code, § 240.

·            Admissibility of Former Testimony as Substitute for Live Testimony. People v. Reed (1996) 13 Cal.4th 217, 225–226 [52 Cal.Rptr.2d 106, 914 P.2d 184].

Secondary Sources

5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, § 539.

1 Witkin, California Evidence (4th ed. 2000) Hearsay, § § 18 et seq., 264 et seq.

4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 83, Evidence, § 83.13[2], [3][o] (Matthew Bender).

90.

(Pub 1284)

Copyright 2008 Judicial Council of California. 

California Criminal Jury Instructions-CALCRIM-Table of Contents
California Criminal Jury Instructions-CALCRIM-Volume 1 Table of Contents 
California Jury Instructions-CALCRIM-Vol. 1. General Instructions