In what circumstances have the courts failed to instruct a jury that a defendant cannot be convicted based on out-of-court statements?

California, United States of America

The following excerpt is from People v. Ambriz, F061401, F061579, F061676 (Cal. App. 2012):

In determining whether there has been any prejudice from failure to instruct with CALCRIM No. 358, we look to whether there was any conflict about whether the statements were made or accurately reported. (People v. Pensinger (1991) 52 Cal.3d 1210, 1268.) Here, there is no conflict in the evidence. There is no claim on appeal that the statements were not made or that Klassen's testimony regarding the statements was in any way inaccurate.

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We also look to other instructions given to the jury in assessing prejudice. (People v. Sanders (1995) 11 Cal.4th 475, 536-537.) Here, the trial court instructed the jury on its responsibility to assess the credibility of witnesses (CALCRIM No. 226) and with CALCRIM No. 359, stating that a defendant cannot be convicted based on out-of-court statements alone.

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