Revised to November 1, 2008 (modified May 10, 2012)
In deciding what the facts are, you must consider all the evidence. In doing this, you must decide which testimony to believe and which testimony not to believe. You may believe all, none or any part of any witness's testimony. In making that decision, you may take into account a number of factors including the following: 1) was the witness able to see, or hear, or know the things about which that witness testified? 2) how well was the witness able to recall and describe those things? 3) what was the witness's manner while testifying? 4) did the witness have an interest in the outcome of this case or any bias or prejudice concerning any party or any matter involved in the case? 5) how reasonable was the witness's testimony considered in light of all the evidence in the case? and 6) was the witness's testimony contradicted by what that witness has said or done at another time, or by the testimony of other witnesses, or by other evidence?
If you think that a witness has deliberately testified falsely in some respect, you should carefully consider whether you should rely upon any of that witness's testimony.1
In deciding whether or not to believe a witness, keep in mind that people sometimes forget things. You need to consider, therefore, whether a contradiction is an innocent lapse of memory or an intentional falsehood, and that may depend on whether the contradiction has to do with an important fact or with only a small detail.
These are some of the factors you may consider in deciding whether to believe testimony.
The weight of the evidence presented
by each side does not depend on the number of witnesses.2 It is the
quality of the evidence, not the quantity of the evidence, that you must
1 It is not necessary to specifically instruct the jury that if they find that a witness has intentionally testified falsely as to one thing, then it can reject that witness's entire testimony. State v. Stevenson, 53 Conn. App. 551, 577-79, cert. denied, 250 Conn. 917 (1999). Disbelief of testimony, by itself, does not prove the opposite. In State v. McCarthy, 105 Conn. App. 596, 621, cert. denied, 286 Conn. 913 (2008), the court's refusal to charge on this issue was not error.
2 "[C]ourts should refrain from giving a number of witnesses instruction when the defendant presents no witnesses." State v. Ouellette, 110 Conn. App. 401, 415, cert. denied, 289 Conn. 951 (2008).
"Generally, a defendant is not
entitled to an instruction singling out any of the state's witnesses and
highlighting his or her possible motive for testifying falsely. . . . There are,
however, two exceptions to this rule: the complaining witness exception and the
accomplice exception." State v. Ortiz, 252 Conn. 533, 561 (2000). "The complaining witness exception . . . provides that when a complaining
witness could himself have been subject to prosecution depending only upon the
veracity of his account of [the] particular criminal transaction, the court
should . . . [instruct] the jury in substantial compliance with the defendant's
request to charge to determine the credibility of that witness in the light of
any motive for testifying falsely and inculpating the accused. . . . [T]here
must be evidence . . . to support the defendant's assertion that the complaining
witness was the culpable party." (Internal quotation marks omitted.) Id. The
accomplice exception requires that "where it is warranted by the evidence, it is
the court's duty to caution the jury to scrutinize carefully the
testimony if the jury finds that the witness intentionally assisted in the
commission, or if he assisted or aided or abetted in the commission, of the
offense with which the defendant is charged." (Emphasis in original; internal
quotation marks omitted.) Id., 562. In State v. Patterson, 276 Conn. 452
(2005), the Supreme Court recognized a third exception for the testimony of an
Accomplice Testimony, Instruction 2.5-2,
Informant Testimony, Instruction 2.5-3,
Complaining Witness Testimony, Instruction 2.5-5.
“[I]t is within the discretion of a trial court to give a cautionary instruction to the jury whenever the court reasonably believes that a witness’ testimony may be particularly unreliable because the witness has a special interest in testifying for the state and the witness’ motivations may not be adequately exposed through cross-examination or argument by counsel.” State v. Diaz, 302 Conn. 93, 113 (2011) (rejecting the need for requiring such an instruction in any case where there is evidence that the witness may be particularly unreliable).
A defendant is not entitled to an instruction that a child's testimony is inherently less worthy of belief simply because of the age of the witness. State v. James, 211 Conn. 555, 566-71 (1989); General Statutes § 54-86h ("No witness shall be automatically adjudged incompetent to testify because of age."); Code of Evidence § 6-1 ("[E]very person is competent to be a witness."). In State v. James, supra, the Court recognized the concern, underlying similar decisions in other jurisdictions, that "an instruction [that] singles out the testimony of the child witness for special scrutiny may infringe upon the jury's exclusive role as arbiter of credibility." (Internal quotation marks omitted.) Id., 568. Because such an instruction is "not for the statement of any rule of law but for a cautionary comment upon the evidence," it remains within the discretion of the trial court. Id., 571. A court's denial of a defendant's request for a special child credibility instruction has been consistently upheld when an adequate general credibility instruction has been given. See State v. Ceballos, 266 Conn. 364, 423 (2003); State v. Angell, 237 Conn. 321, 330 (1996); State v. Abrahante, 56 Conn. App. 65, 78-80 (1999); State v. Nguyen, 52 Conn. App. 85, 95-97 (1999), aff'd on other grounds, 253 Conn. 639 (2000).
"While the preliminary question of admissibility of a confession is for the court, the credibility and weight to be accorded the confession is for the jury." State v. Vaughan, 171 Conn. 454, 460-61 (1976); see also State v. Oliver, 160 Conn. 85, 95 (1970), cert. denied, 402 U.S. 946 (1971) (adhering to the "orthodox rule under which the judge himself solely and finally determines the voluntariness of the confession"). "This rule does not require the court to give a particular instruction to the jury regarding the credibility of the defendant's confession simply because the confession was a substantial part of the evidence." State v. Corbin, 260 Conn. 730, 742 (2002) (court's instruction adequately explained the jury's duty to evaluate the weight and credibility of all the evidence).
If the defendant has introduced evidence bearing on the reliability of his or her confession, the court may refer to this evidence during the general credibility instruction. See State v. Ledbetter, 263 Conn. 1, 22 (2003) ("The court explained that the jury was required to consider all of the circumstances underlying the defendant's confession in evaluating whether that confession was voluntary and reliable. Moreover, the court expressly apprised the jury of the defendant's claim that the confession was unreliable owing to the defendant's 'age, background and circumstances surrounding the making of her confession,' thereby underscoring those considerations."); see also State v. Vaughan, supra, 171 Conn. 454 (concluding that the trial court should have admitted the defendant's proffered expert testimony on his mental capacity at the time of his confession to help the jury determine what weight and credibility to give to the confession); State v. Fernandez, 27 Conn. App. 73, 80, cert. denied, 222 Conn. 904 (1992) (distinguishing Vaughan on the basis that defendant's proffered testimony was not probative of the reliability of the defendant's confession).
A "comparative credibility" instruction should not be given because it runs the risk of misleading the jury that they can choose the more credible side rather than holding the state to its burden of proving guilt beyond a reasonable doubt. State v. Whitford, 260 Conn. 610, 643-49 (2002).