What is the test for "inherently improbable" testimony in a sexual assault case?

California, United States of America


The following excerpt is from People v. Berna, F068377 (Cal. App. 2015):

"To reject the statements given by a witness whom the trial court has found credible, either they must be physically impossible or their falsity must be apparent without resorting to inferences or deductions. [Citation.] When two or more inferences can reasonably be deduced from the facts as found, a reviewing court is without power to substitute its deductions for those of the trier of fact. [Citation.]" (People v. Duncan (2008) 160 Cal.App.4th 1014, 1018, italics added.)

"The inherently improbable standard addresses the basic content of the testimony itselfi.e., could that have happened?rather than the apparent credibility of the person testifying. Hence, the requirement that the improbability must be 'inherent,' and the falsity apparent 'without resorting to inferences or deductions.' [Citation.] In other words, the challenged evidence must be improbable ' "on its face" ' [citation], and thus we do not compare it to other evidence (except, perhaps, certain universally accepted and judicially noticeable facts). The only question is: Does it seem possible that what the witness claimed to have happened actually happened? [Citation]." (People v. Ennis (2010) 190 Cal.App.4th 721, 729, italics in original)

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