<Alternative A—physically restrained>
[When_______________ <insert name[s] of witness[es]> testified, (he/she/they) (was/were) physically restrained. Do not speculate about the reason. You must completely disregard this circumstance in deciding the issues in this case. Do not consider it for any purpose or discuss it during your deliberations. Evaluate the witness’s testimony according to the instructions I have given you.]

<Alternative B—in custody>

[When_______________ <insert name[s] of witness[es]> testified, (he/

she/they) (was/were) in custody. [Do not speculate about the reason.] The fact that a witness is in custody does not by itself make a witness more or less believable. Evaluate the witness’s testimony according to the instructions I have given you.]

BENCH NOTES

Instructional Duty

The court has a sua sponte duty to give this instruction if the witness has been physically restrained in a manner that is visible to the jury. (See People v. Duran (1976) 16 Cal.3d 282, 291–292 [127 Cal.Rptr. 618, 545 P.2d 1322]; Wilson v. McCarthy (9th Cir. 1985) 770 F.2d 1482, 1485; People v. Metzger (1904) 143 Cal. 447, 448 [77 P. 155].) If the restraints are not visible, do not give this instruction unless requested. For an in-custody witness, give this instruction on request.

Do not give this instruction for an in-custody informant unless the witness is also physically restrained. When an in-custody informant testifies, the court must give CALCRIM No. 336, In-Custody Informant. For an in-custody informant, the court may only give this instruction if it is limited to the issue of physical restraints.

In alternative B, always give the bracketed sentence that begins with “Do not speculate” unless the jury has been informed of the reason the witness is in custody.

The rules articulated in People v. Duran (1976) 16 Cal.3d 282, 290–292 [127 Cal.Rptr. 618, 545 P.2d 1322] regarding physical restraints of a defendant at

113.

337. Witness in Custody or Physically Restrained Page 113
337. Witness in Custody or Physically Restrained Page 114

(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