Gregory L. Prickett

Judge, Orange County Superior Court

The objective of this article and accompanying self-study test is to review the rules regarding the requirement that testimony from an accomplice must be corroborated in order to be admissible at trial. Readers will learn about the nature of the rule, who is considered an accomplice, and what qualifies as sufficient corroboration.

The Rule

Penal Code Section 1111 provides, in relevant part, "A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof."

Our Supreme Court has explained that "experience has shown that the evidence of an accomplice should be viewed with care, caution and suspicion because it comes from a tainted source and is often given in the hope or expectation of leniency or immunity." People v. Wallin, 32 Cal. 2d 803 (1948). "In addition, an accomplice may try to shift blame to the defendant in an effort to minimize his or her own culpability." People v. Tobias, 25 Cal. 4th 327 (2001). Moreover, as a result of having inside knowledge of the crime, "accomplice testimony is frequently cloaked with a plausibility which may interfere with the jury's ability to evaluate its credibility." People v. Tewksbury, 15 Cal. 3d 953 (1976).

"The accomplice rule is intended to alleviate distortion stemming from consciousness of guilt, not from fear of unjust prosecution. Self-exculpatory testimony is certainly false if the witness is in fact guilty, but much less likely untruthful if the witness is innocent though falsely accused. And testimony by one not actually guilty is less prone to be 'tainted or given in the hope or expectation of leniency or immunity.'" People v. Rodriguez, 42 Cal. 3d 730 (1986).

Penal Code Section 1111 is no longer a basis for exclusion of evidence. "The passage of Proposition 8 in 1982 abrogated a great many exclusionary rules in enacting the California Constitution's right to truth-in-evidence provision (Cal. Const. art. 1, § 28, subd. (f)(2) .... [The California Supreme Court has] previously held that this provision abrogated an exclusionary rule based on the corpus delicti rule. The same analysis and conclusion applies here to the accomplice corroboration rule." People v. Bryant, Smith and Wheeler, 60 Cal. 4th 335 (2014). Under this case, the rule concerns the sufficiency of the evidence, and the court must "instruct the jury that it cannot conclude a defendant committed an unadjudicated offense based solely on the uncorroborated testimony of an accomplice."

The accomplice corroboration requirement applies to the penalty phase as well as the guilt phase of a criminal case. People v. Nelson, 51 Cal. 4th 198 (2011). But the requirement does not apply at juvenile delinquency hearings. In re Miguel L., 32 Cal. 3d 100 (1982).

"[U]ncorroborated accomplice testimony can be the basis for a grand jury indictment." Arteaga v. Superior Court, 233 Cal. App. 4th 851 (2015). Further, "the requirement of corroboration has no application to a preliminary hearing." People v. Singer, 217 Cal. App. 2d 743 (1963); see also People v. Miranda, 23 Cal. 4th 340 (2000). It has also been held that the corroboration requirement of Section 1111 does not apply at probation violation hearings (People v. McGavock, 69 Cal. App. 4th 332 (1999)) or to enhancements (People v. Maldonado, 72 Cal. App. 4th 588 (1999)).

Who Is an Accomplice?

An accomplice is one who is liable to prosecution for the identical offense charged against the defendant on trial. Section 1111; People v. Boyer, 38 Cal. 4th 412 (2006). Accomplices include persons who share the perpetrator's criminal intent and act as co-conspirators or aiders and abettors. See People v. Stankewitz, 51 Cal. 3d 72 (1990); People v. Gordon, 10 Cal.3d 460 (1973). Whether a person is an accomplice is a question of fact for the jury, unless there is no dispute as to either the facts or the inferences to be drawn from them. People v. Coffman and Marlow, 34 Cal. 4th 1 (2004); see CALCRIM No. 334.

It is not enough that the witness knew about the subject crime, was present during its commission and failed to prevent it from occurring. To be considered an accomplice, the witness must have "act[ed] with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense." Stankewitz. "The accomplice testimony rule does not apply, and accomplice testimony instructions need not be given, where the witness in question was involved in the crime but was not actually an accomplice, but only as an accessory after the fact." People v. Mackey, 233 Cal. App. 4th 32 (2015), citing Sections 31-33; People v. McKinzie, 54 Cal. 4th 1302 (2012); People v. Daniels, 52 Cal.3d 815 (1991) ("mere accessories are not accomplices under section 1111").

"The fact that a witness has been charged or held to answer for the same crimes as the defendant and then has been granted immunity does not necessarily establish that he or she is an accomplice." Stankewitz. The burden is on the defendant to prove by a preponderance of the evidence that a witness is an accomplice. People v. Fauber, 2 Cal. 4th 792 (1992). "[It] is uniformly held that the defense initially bears the burden of producing evidence to raise the accomplice issue and that in the absence of any such proof the witness is treated as not being an accomplice." People v. Belton, 23 Cal. 3d 516 (1979).

Corroboration

"Evidence of corroboration is sufficient if it connects the defendant with the crime, even though it is slight and would be entitled to little consideration when standing by itself." People v. Price, 1 Cal. 4th 324 (1991). But, under this case, "[t]he required corroboration must come from a source other than another accomplice." Ibid.; see also Fauber.

The evidence need not corroborate every fact to which the accomplice testified or establish the corpus delicti of the crime. People v. Szeto, 29 Cal. 3d 20 (1981). It may, in fact, be entirely circumstantial. People v. Hayes, 21 Cal. 4th 1211 (1999).

An accomplice cannot be corroborated by evidence from his or her own out-of-court statements. People v. Andrews, 49 Cal. 3d 200 (1989). But, "[a] defendant's own testimony may be sufficient corroborative testimony, and false or misleading statements made to authorities may constitute corroborating evidence." People v. Vu, 143 Cal. App. 4th 1009 (2006); accord People v. Avila, 38 Cal. 4th 491 (2006).

"The trier of fact's determination on the issue of corroboration is binding on [a] reviewing court unless the corroborating evidence should not have been admitted or does not reasonably tend to connect the defendant with the commission of the crime." People v. McDermott, 28 Cal. 4th 946 (2002). The evidence "is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth." Fauber. 