People v. Guiuan

KENNARD, J., Concurring.

“A skeptical approach to accomplice testimony is a mark of the fair administration of justice. From Crown political prosecutions, and before, to recent prison camp inquisitions, a long history of human frailty and governmental overreaching for conviction justifies distrust in accomplice testimony.” (Phelps v. United States (5th Cir. 1958) 252 F.2d 49, 52 .)

I join that portion of the majority opinion holding that the trial court committed no instructional error in this case. Further, I agree with the majority that this court should not abrogate the long-established rule that trial courts, on their own initiative, must warn juries that the testimony of accomplices who testify on behalf of the prosecution is inherently unreliable, and I also agree that the pattern instruction currently used to convey this warning should be modified so that it may be used when both the prosecution and the defense have elicited and are relying on testimony given by an accomplice.

I disagree, however, with the wording of the proposed modification. Unlike the majority, I would advise jurors of the reasons why accomplice testimony should be viewed skeptically, because jurors will understand the warning better, and will be less apt to give accomplice testimony either more *571 or less weight than it deserves, if they understand the reasons why accomplice testimony may be inherently suspect. Finally, I would not remove from the cautionary instruction the word “distrust,” which is amply justified by logic and precedent, although I would confine that word to its appropriate context—testimony favorable to the prosecution’s case that may be influenced by the accomplice’s desire for, or expectation of, benefits such as immunity from prosecution or leniency in charging or sentencing.

The pattern cautionary instruction on accomplice testimony currently used in our state trial courts is this: “You should view the testimony of an accomplice with distrust. This does not mean that you may arbitrarily disregard that testimony. You should give that testimony the weight you think it deserves after examining it with care and caution and in the light of all the evidence in the case.” (CALJIC No. 3.18 (6th ed. 1996).) In its place, the majority directs trial courts to give this instruction: “ ‘To the extent an accomplice gives testimony that tends to incriminate the defendant, it should be viewed with caution. This does not mean, however, that you may arbitrarily disregard that testimony. You should give that testimony the weight you think it deserves after examining it with care and caution and in the light of all the evidence in the case.’ ” (Maj. opn., ante, at p. 569.)

Neither instmction tells the jury why accomplice testimony should be evaluated with greater care and skepticism than the testimony of other witnesses. By contrast, the cautionary instruction for testimony by an in-custody informant does explain the reason for the warning: “ ‘The testimony of an in-custody informant should be viewed with caution and close scrutiny. In evaluating such testimony, you should consider the extent to which it may have been influenced by the receipt of, or expectation of, any benefits from the party calling that witness. This does not mean that you may arbitrarily disregard such testimony, but you should give it the weight to which you find it to be entitled in the light of all the evidence in the case.’ ” (Pen. Code, § 1127a, subd. (b), italics added.) A cautionary instruction is more helpful and more effective if it states the reasons why special caution is warranted.

There are several reasons why jurors should view accomplice testimony with particular suspicion or skepticism.

The first reason for viewing accomplice testimony skeptically is that accomplices—because they are, by definition, persons who are liable to prosecution for the same offense with which the defendant is charged (Pen. Code, § 1111)—have a powerful built-in motive to aid the prosecution in convicting a defendant, regardless of the defendant’s actual guilt or level of culpability, in the hope or expectation that the prosecution will reward the *572 accomplices’ assistance with immunity or leniency. In other words, “[a] person arrested in incriminating circumstances has a strong incentive to shift, blame or downplay his own role in comparison with that of others, in hopes of receiving a shorter sentence and leniency in exchange for cooperation.” ('Williamson v. United States (1994) 512 U.S. 594, 607-608 [ 114 S.Ct. 2431, 2439 , 129 L.Ed.2d 476 ] (cone. opn. of Ginsburg, J.).)

There is solid historical justification for an accomplice’s expectation that, even in the absence of an explicit agreement, the prosecution will reward testimony that results in a conviction by granting the testifying accomplice immunity from prosecution or at least leniency in charging or sentencing. “The old common law recognized a practice of ‘approvement’ under which a person arraigned for a felony might accuse another as his accomplice and become entitled to a pardon if the accused accomplice were convicted.” (Hughes, Agreements for Cooperation in Criminal Cases (1992) 45 Vand. L.Rev. 1, 7, fns. omitted (Hughes); see also Whiskey Cases (1878) 99 U.S. 594, 599 [ 25 L.Ed. 399 , 401]; Zimmerman, Toward a New Vision of Informants: A History of Abuses and Suggestions for Reform (1994) 22 Hastings Const.L.Q. 81, 152-156; Note, Let’s Make a Deal: A Look at United States v. Dailey and Prosecutor-Witness Cooperation Agreements (1987) 67 B.U. L.Rev. 749, 761-762; Note, Accomplice Testimony Under Conditional Promise of Immunity (1952) 52 Colum. L.Rev. 138, 139.) The approvement system “fell into disuse because the likelihood of perjury by the accomplice was thought to outweigh the probative value of his testimony.” (Note, Accomplice Testimony Under Contingent Plea Agreements (1987) 72 Cornell L.Rev. 800, 801.) In this regard, a statement by Chief Justice Hale is often quoted: “ ‘The truth is that more mischief hath come to good men, by these kinds of approvements by false accusations of desperate villains, than benefit to the public by the discovery and convicting of real offenders.’ ” (2 Hale, The History of the Pleas of the Crown (1678) 226, quoted in Hughes, supra, 45 Vand. L.Rev. at p. 7, fn. 19.)

Approvement was not the only system for rewarding accomplice testimony: “Apart from approvement, which fell into disuse by the eighteenth century, there also existed an informal practice by which an accused, though not legally entitled to a pardon, could obtain one by confessing to the crime and revealing his accomplices. This practice was rife in the nineteenth century when the lack of an organized police force often made it essential to procure accomplice testimony in order to track down or build a case against a major criminal. It was customary to advertise prominently the offer of pardons to accomplices who would come forward and testify leading to a conviction of the principal and to offer cash payments to witnesses who might come forward.” (Hughes, supra, 45 Vand. L.Rev. 1, 7-8, fns. omitted.) *573 Thus, it is fair to say that “[t]he government has always solicited the help of cooperating witnesses to prosecute its cases [citations] and these witnesses, in turn, have traditionally been shown leniency at sentencing.” (U.S. v. Ming He (2d Cir. 1996) 94 F.3d 782, 787 .)

The word “distrust” correctly articulates the level of skepticism that a jury should use when considering how the hope or expectation of leniency or immunity may influence accomplice testimony that incriminates the defendant. The Legislature deliberately chose that word in 1872 when it enacted former section 2061 as part of the original Code of Civil Procedure, providing that “on all proper occasions,” trial courts were to instruct jurors to view accomplice testimony “with distrust” but, by comparison, to view evidence of a party’s oral admissions “with caution.” Although in 1965 the Legislature repealed former section 2061 of the Code of Civil Procedure (Stats. 1965, ch. 299, § 127, p. 1366, eff. Jan. 1, 1967), the Law Revision Commission’s comment to the repealing legislation states that because the section was “but a partial codification of the common law, the repeal should have no effect on the giving of the instructions contained in the section . . . .” (Cal. Law Revision Com. com., 21-22 West’s Ann. Code Civ. Proc. (1983 ed.) foil. § 2061, p. 268.)

The choice of the word “distrust” reflects not only statutory precedent but also careful judicial reflection on the precise degree of skepticism with which a jury ought to regard accomplice testimony. This court has explained that the words “caution” and “distrust” are “quite different,” that “caution” requires only “care and watchfulness” whereas “distrust” has “meanings ranging from doubt and suspicion to lack of confidence,” and that, accordingly, “[a] jury’s estimate of evidence which it was directed to view ‘with caution’ might, and ordinarily would, be quite different from the effect which it would give to the same evidence considered ‘with distrust.’ ” (People v. Hamilton (1948) 33 Cal.2d 45, 51 [ 198 P.2d 873 ].)

As this court has explained, use of the stronger word “distrust,” rather than “caution,” is the logical complement of the statutory corroboration requirement for accomplice testimony: “At common law the fact that a witness was an accomplice resulted only in an instruction that his testimony was to be viewed with care, caution, and suspicion unless corroborated in any material matter by independent evidence. (People v. Coffey [(1911)] 161 Cal. 433, 438 [ 119 P. 901 ]; see also 7 Wigmore on Evidence (3d ed.) § 2056, pp. 312-322, and cases cited therein at fn. 10.) The limitation based on the common law distrust of accomplices as now embodied in [Penal Code] section 1111 [barring convictions based on uncorroborated accomplice testimony] is much harsher than the common law limitation. Juries are now *574 compelled rather than cautioned to view an accomplice’s testimony with distrust, for while his testimony is always admissible and in some respects competent to establish certain facts (see People v. McRae [(1947)] 31 Cal.2d 184, 187 [ 187 P.2d 741 ] [probable cause to hold defendant to answer at preliminary hearing]), such testimony has been legislatively determined never to be sufficiently trustworthy to establish guilt beyond a reasonable doubt unless corroborated.” (People v. Tewksbury (1976) 15 Cal.3d 953, 967 [ 127 Cal.Rptr. 135 , 544 P.2d 1335 ].)

In view of these considerations—the significant risk that a testifying accomplice will falsely put the blame on the defendant in the expectation that the prosecution will reward the testimony with immunity or leniency, the deliberate legislative choice of the word “distrust” rather than “caution” in formulating the appropriate warning to the jury, this court’s recognition that “distrust” is a significantly stronger word that “caution,” and this court’s recognition that the corroboration requirement reflects a Legislature determination that accomplice testimony is inherently and gravely suspect—this court, until today, has continuously reaffirmed the rule that trial courts are to instruct juries that “[wjhen the prosecution calls an accomplice as a witness, the trial court must instruct the jury that the witness’s testimony should be viewed with distrust.” (People v. Mincey (1992) 2 Cal.4th 408, 461 [ 6 Cal.Rptr.2d 822 , 827 P.2d 388 ]; accord, People v. Williams (1997) 16 Cal.4th 153, 225 [ 66 Cal.Rptr.2d 123 , 940 P.2d 710 ]; People v. Williams (1988) 45 Cal.3d 1268, 1314 [ 248 Cal.Rptr. 834 , 756 P.2d 221 ]; People v. Gordon (1973) 10 Cal.3d 460, 470 [ 110 Cal.Rptr. 906 , 516 P.2d 298 ].) I would retain the word “distrust” in the cautionary instruction for accomplice testimony.

Apart from the accomplice’s hope that the prosecution will reward testimony resulting in a conviction, there are sound reasons why accomplice testimony “ought to be received with suspicion, and with the very greatest care and caution, and ought not to be passed upon by the jury under the same rules governing other and apparently credible witnesses.” (Crawford v. United States (1909) 212 U.S. 183, 204 [ 29 S.Ct. 260, 268 , 53 L.Ed. 465 ].)

Rarely are accomplices persons of integrity whose veracity is above suspicion. A witness’s own character for honesty and truthfulness, as revealed by past criminal conduct, is a proper factor in assessing credibility. (See People v. Wheeler (1992) 4 Cal.4th 284, 295 [ 14 Cal.Rptr.2d 418 , 841 P.2d 938 ].) An accomplice’s participation in the charged crime is itself evidence of bad moral character and, depending on the crime, may indicate a penchant for dishonesty that should undermine confidence in the truthfulness of the accomplice’s testimony, whether that testimony favors the *575 prosecution or the defense. (See Alarcon, Suspect Evidence: Admissibility of Co-conspirator Statements and Uncorroborated Accomplice Testimony (1992) 25 Loyola L.A. L.Rev. 953, 953-954 (Alarcon) [observing that accomplice testimony “is admissible even when uncontradicted evidence at trial has demonstrated that the . . . accomplice witness was a criminal of the vilest character”].)

Another reason for skepticism is the accomplice’s obvious interest in avoiding or minimizing prosecution for the charged offense. Quite apart from any hope that the prosecution will grant the accomplice immunity or leniency as a reward for testimony that results in the defendant’s conviction, it is in the accomplice’s interest to persuade the prosecution that the offense is less serious than the charge indicates or that the accomplice’s own role in. its commission is relatively insignificant. (See Alarcon, supra, 25 Loyola L.A. L.Rev. 953, 960.) For this reason, accomplice testimony may falsely minimize the seriousness of the crime or the accomplice’s culpability for it. Testimony portraying the offense as less serious than charged necessarily would favor the defense, but testimony minimizing the accomplice’s role could favor either the prosecution (by shifting primary blame to the defendant) or the defense (by shifting primary blame to other individuals).

Finally, special caution is warranted because an accomplice’s firsthand knowledge of the details of the criminal conduct allows for the construction of plausible falsehoods not easily disproved. This court has previously described the problem in these words: “[Accomplice testimony is frequently cloaked with a plausibility which may interfere with the jury’s ability to evaluate its credibility. ‘ “[A]n accomplice is not merely a witness with a possible motive to tell lies about an innocent accused but is such a witness peculiarly equipped, by reason of his inside knowledge of the crime, to convince the unwary that his lies are the truth.” ’ (Heydon, The Corroboration of Accomplices (Eng. ed. 1973) Crim.L.Rev. 264, 266; see also Note, 54 Colum.L.Rev. 219, 234.)” {People v. Tewksbury, supra, 15 Cal.3d 953, 967 ; see also Note, Accomplices in Federal Court: A Case For Increased Evidentiary Standards (1990) 100 Yale L.J. 785 , 787 [“Since the accomplice alone knows about the pattern of criminal events, he can manipulate the details of those events without blatant discrepancies.”]; Hughes, supra, 45 Vand. L.Rev. 1, 33 [“Courts should instruct juries to consider how easily suspects with inside knowledge can fabricate testimony and the strong incentive for suspects to do so when their liberty may depend on it.”].)

A jury that is warned of these specific reasons why accomplice testimony may be less than the whole truth will be prepared to properly assess the *576 credibility of such testimony. To convey this warning, I would direct trial courts to instruct juries substantially as follows: “In deciding whether to believe testimony given by an accomplice, you should use greater care and caution than you do when deciding whether to believe testimony given by an ordinary witness. Because an accomplice is also subject to prosecution for the same offense-, an accomplice’s testimony may be strongly influenced by the hope or expectation that the prosecution will reward testimony that supports the prosecution’s case by granting the accomplice immunity or leniency. For this reason, you should view with distrust accomplice testimony that supports the prosecution’s case. Whether or not the accomplice testimony supports the prosecution’s case, you should bear in mind the accomplice’s interest in minimizing the seriousness of the crime and the significance of the accomplice’s own role in its commission, the fact that the accomplice’s participation in the crime may show the accomplice to be an untrustworthy person, and an accomplice’s particular ability, because of inside knowledge about the details of the crime, to construct plausible falsehoods about it. In giving you this warning about accomplice testimony, I do not mean to suggest that you must or should disbelieve the accomplice testimony that you heard at this trial. Rather, you should give the accomplice testimony whatever weight you decide it deserves after considering all the evidence in the case.”

Like Justice Brown, I have a high opinion of jurors’ abilities, and I agree that, in the words of Presiding Justice Gardner, “[a] juror is not some kind of a dithering nincompoop, brought in from never-never land and exposed to the harsh realities of life for the first time in the jury box.” (People v. Long (1974) 38 Cal.App.3d 680, 689 [ 113 Cal.Rptr. 530 ].) Still, most jurors have only limited experience with the actual workings of the criminal justice system and the pressures that operate on testifying accomplices. Few jurors have ever been formally accused of a crime or put in a situation where their liberty may depend upon assisting the prosecution to obtain another’s conviction. When their duties as jurors require them to confront situations and concepts with which they have only limited familiarity, most jurors, I think, would welcome instructions that explain not only the rules they are to follow in reaching their verdicts but also the reasoning that underlies those rules.