226 . Witnesses
Y ou alone must judge the credibility or believability of the witnesses. In
deciding whether testimony is true and accurate, use your common sense
and experience. Y ou must judge the testimony of each witness by the
same standards, setting aside any bias or pr ejudice you may have.
Y ou 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 pr ove or disprove the truth or accuracy of that
testimony . Among the factors that you may consider ar e:
• 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
• 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
testifying?
• 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 dif fer ences ar e 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 dif fer ently .
[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 r est.]
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 .
1 19, 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 1 104, 1 107 [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.
If the court instructs on a prior felony conviction or prior misconduct admitted
pursuant to People v . Wheeler (1992) 4 Cal.4th 284 [14 Cal.Rptr .2d 418, 841 P .2d
938], the court should consider whether to give CALCRIM No. 316, Additional
Instructions on W itness Credibility - Other Conduct . (See Bench Notes to that
instruction.)
• Factors. Evid. Code, § 780; People v . Rincon-Pineda (1975) 14 Cal.3d 864,
883-884 [123 Cal.Rptr . 119, 538 P .2d 247].
• Inconsistencies. Dodds v . Stellar (1946) 77 Cal.App.2d 411, 426 [175 P .2d 607].
POST -TRIAL: INTRODUCTORY CALCRIM No. 226
• W itness Who Lies. People v . Murillo (1996) 47 Cal.App.4th 1 104, 1 107 [55
Cal.Rptr .2d 21].
• Proof of Character For T ruthfulness 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].
• This Instruction Upheld. People v . Ibarra (2007) 156 Cal.App.4th 1174,
1 187-1 188 [67 Cal.Rptr .3d 871].
SECONDAR Y SOURCES
5 W itkin & Epstein, California Criminal Law (4th ed. 2012) Criminal T rial, § 725.
4 Millman, Sevilla & T arlow , California Criminal Defense Practice, Ch. 85,
Submission to Jury and V er dict , §§ 85.02[1A][b], [2][b], [c], 85.03[2][b] (Matthew
227-239. Reserved for Future Use
CALCRIM No. 226 POST -TRIAL: INTRODUCTORY
Page last reviewed May 2024
Amherst professor Austin Sarat discusses the case of Richard Glossip, an Oklahoma death row inmate whose conviction has been challenged by the state’s attorney general, and the broader constitutional question of executing innocent people.
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