CALJIC No. 2.28 Example Case

In People v. Bell (2004) 118 Cal.App.4th 249, the delayed disclosure related to the testimony of three alibi witnesses. (People v. Bell, supra, 118 Cal.App.4th at pp. 253-254.) The appellate court found the giving of CALJIC No. 2.28 prejudicial because: (1) the prosecution's case (for murder) was based on "essentially two eyewitnesses," one of whom "had a fairly brief opportunity to see the assailant," and the other of whom "was impeached by the admission of evidence that she was a frequent liar and had suffered misdemeanor convictions"; (2) "the presentation of the defendant's alibi was a critical part of his case"; (3) "the prosecutor capitalized on the jury instruction at closing argument to discredit the defendant's alibi defense." (Bell, at p. 257.)