F 2.70d
*Add to CJ 2.70:
ALTERNATIVE FORMS
Alternative Form 1:
In determining the believability of defendant’s alleged statements, consider any evidence of the circumstances surrounding the defendant’s interrogation, together with any psychological factors that may have influenced defendant in making such statements. The weight, if any, to be given by you to any alleged statement, is for your sole determination.
Alternative Form 2:
If you find from the evidence that a statement was made by the defendant, you must then determine if it was produced by means of coercion. Although coercive methods do not necessarily produce false confessions or admissions, they certainly may have that effect. Therefore, if you determine that coercion did occur, consider this fact in determining the weight, if any, the defendant’s alleged statements should be given.
Alternative Form 3:
In evaluating whether any statement, or act or omission alleged to have been made by a defendant outside of court and after a crime has been committed was knowingly and voluntarily made or done, consider the age, training, education, occupation, and physical and mental condition of the defendant, and [his] [her] treatment while in custody or under interrogation. Consider all other circumstances in evidence surrounding the making of the statement.
If after considering the evidence you decide that a statement, or act or omission was made or done knowingly and voluntarily, you may give it such weight as you feel it deserves under the circumstances.
Alternative Form 4:
In determining the voluntariness of any statement alleged to have been made by the defendant, consider all the circumstances in evidence surrounding the making of the statement, including but not limited to:
1. The defendant’s age;
2. The defendant’s intelligence;
3. Whether or not the defendant was given any advice of his constitutional rights;
4. The length of the detention;
5. Whether the questioning was repeated and/or prolonged;
6. Any physical punishments or hardships such as deprivation of food or sleep.
If after considering all the evidence you determine that a statement, or act or omission was made or done knowingly and voluntarily, you may give it such weight as you feel it deserves under the circumstances.
Points and Authorities
The primary purpose of CJ 2.70 “is to assist the jury in determining if the statement was in fact made.” (People v. Beagle (72) 6 C3d 441, 456 [99 CR 313]; People v. Stankewitz II (90) 51 C3d 72, 94 [270 CR 817].) As a corollary to this concern, when there is an issue as to the truth or accuracy of the defendant’s statement as a result of the circumstances under which it was given, the jury should be further instructed to consider these circumstances. “[The] physical and psychological environment that yielded the confession can … be of substantial relevance to the ultimate factual issue of the defendant’s guilt or innocence.” (Crane v. Kentucky (86) 476 US 683, 689 [90 LEd2d 636].) Hence, “juries have been at liberty to disregard confessions that are insufficiently corroborated or otherwise deemed unworthy of belief.” (Lego v. Twomey (72) 404 US 477, 486-87 [30 LEd2d 618].) When the record contains evidence upon which the jury may question the credibility of the confession (see EC 406; Jefferson’s Synopsis Of California Evidence § 25.4), the jury should be informed about the considerations set forth in the above instructions. (See alsoU.S. v. Hien Hai Hoac (9th Cir. 1993) 990 F2d 1099, 1107-09 [court is obligated under federal rules to instruct the jury concerning the weight to be accorded a defendant’s statement when the defendant raises a genuine issue concerning the voluntariness of the statement; Hof v. State (Maryland) (95) 655 A2d 370 [337 Md 581] [requiring jury to consider whether confession was voluntary]; see also In re Cameron (68) 68 C2d 487, 498 [67 CR 529] [coercion should be determined by considering the “totality of the circumstances”].)
“The totality of the circumstances contains no ‘talismanic definition’ of voluntariness. [Citation.] Courts instead often consider the following factors: the youth of the accused, his intelligence, the lack of any advice to the accused of his constitutional rights, the length of detention, the repeated and prolonged nature of the questioning, and the use of physical punishment such as the deprivation of food or sleep. [Citation.]” (United States v. Haswood(9th Cir. 2003) 350 F3d 1024, 1027; see also Mincey v. Arizona (78) 437 US 385, 398-99 [57 LEd2d 290; 98 SCt 2408] [finding that a statement could not have been voluntary when obtained from a defendant who was in the hospital, in near coma condition, and in great pain, while fastened to tubes, needles, and a breathing apparatus]; Haynes v. Washington (63) 373 US 503, 510-12 [10 LEd2d 513; 83 SCt 1336] [invalidating a confession where the authorities held the suspect for more than five days and never advised him of his rights]; Ashcraft v. Tennessee (44) 322 US 143, 149-54 [88 LEd 1192; 64 SCt 921] [invalidating a confession because police officers questioned suspect in relays for thirty-six hours straight, allowing him only a single five-minute respite].)
(See also FORECITE F 2.13.1 n2; F 2.20h.)
Jury reliance upon an unreliable or untruthful admission or confession would implicate the defendant’s state (Art. I, § 15 and § 16) and federal constitutional rights (5th, 6th and 14th Amendments) against self-incrimination, to trial by jury and to due process. [See generally, FORECITE PG VII.]
NOTES
Alternative #1 above was given upon request in People v. Wimberly, No. 83812, Alameda County Superior Court.
Alternative #2 was adapted from a “Suggested Form” in Deerings EC 406 (1986), p. 162.
Alternative #3 was adapted from the standard federal instruction. (Devitt, et al., Fed. Jury Prac. & Inst. (1992) § 14.03.)
Alternative #4 was adapted from United States v. Haswood (9th Cir. 2003) 350 F3d 1024.
Counsel should determine whether a particular alternative is more suitable or whether several alternatives should be offered. Additional language, based on Crane and Lego could include the following:
You may consider evidence about the manner in which defendant’s admissions were secured in determining the probative weight of those admissions. This matter is exclusively for the jury to assess.
You may consider the physical and psychological environment that yielded the defendant’s admissions in determining whether they are believable.
(See also FORECITE F 2.70 n9.)
F 2.70e
Jury Need Not Give All Parts Of Defendant’s Statement Equal Weight
*Add to CJ 2.70:
You are not bound to regard all parts of the defendant’s statement with equal confidence.
Points and Authorities
When evidence has been presented relating to the weight or credibility of certain parts of the defendant’s oral statement, the jury may rightfully give less weight or consideration to those portions of the statement. (See EC 403.) Hence, when appropriate, CJ 2.70 should be supplemented to include the above clarification which is based on Deerings EC 406, “Suggested Form.”
Jury reliance upon an unreliable or untruthful admission or confession would implicate the defendant’s state (Art. I, § 15 and § 16) and federal constitutional rights (5th, 6th and 14th Amendments) against self-incrimination, to trial by jury and to due process. [See generally, FORECITE PG VII.]
F 2.70f
Confession Or Admission To One Charge, But Not Another
*To be added at end of CJ 2.70 when appropriate:
In this case, the defendant is charged with the commission of more than one offense. As to the charge of ________ in Count _____, you are instructed that any statement made by the defendant is not a confession. Rather, if you find that the statement is worthy of consideration, it may be considered solely as an admission.
Points and Authorities
A defendant may make a statement which is a confession to one charged crime (e.g. a lesser offense), but not as to another charged crime. In such a situation CJ 2.70 should be modified to avoid implying that the defendant has “confessed” to both charges. EC 355 requires instruction upon the limited scope of evidence upon request.
Jury reliance upon an unreliable or untruthful admission or confession would implicate the defendant’s state (Art. I, § 15 and § 16) and federal constitutional rights (5th, 6th and 14th Amendments) against self-incrimination, to trial by jury and to due process. [See generally, FORECITE PG VII.]
F 2.70g
Inculpatory Statement Of One Defendant In Multi-Defendant Trial
See FORECITE F 358 Inst 7.
F 2.70h
Defense Theory That Confession Or Admission Was
The Result Of Specific Threats From Others
*Add to CJ 2.70:
It is [the] [a] defense theory that the defendant’s statement was due to fear of retaliation by the person who actually committed the crime.
[Consider this defense theory in light of all the evidence in deciding whether the prosecution has proven beyond a reasonable doubt that the accused committed the charged crime.]
[After considering this defense theory, in light of all the evidence, any juror who has a reasonable court that the accused committed the charged crime must give [him] [her] the benefit of that doubt and vote to acquit.]
Points and Authorities
Where the accused contends that his or her admission/confession was given in response to threats by others, the accused should have a right to a pinpoint instruction on this defense theory. “[A]s a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.” (Mathews v. United States (88) 485 US 58, 63 [99 LEd2d 54; 108 SCt 883] [citingStevenson v. United States (1896) 162 US 313, 323 [40 LEd 980; 16 SCt 839] [refusal of voluntary manslaughter instruction in murder case where self defense was primary defense constituted reversible error]; see also Keeble v. U.S. (73) 412 US 205, 207 [36 LEd2d 844; 93 SCt 1993].) Thus, the defendant has a right to pinpoint instructions upon his/her theory of the defense and upon the applicability of the burden of proof to that theory. (People v. Saille (91) 54 C3d 1103, 1120 [2 CR2d 264] [defendant has the right to a pinpoint instruction which relates “his [evidentiary theory] to an element of the offense”]; People v. Wright (85) 45 C3d 1126, 1136-37 [248 CR 600]; People v. Adrian (82) 135 CA3d 335, 342 [185 CR 506]; FORECITE PG III (A) & (D).)
People v. Boyette (2002) 29 C4th 381 [127 CR2d 544] recognized that a valid defense theory may be predicated upon evidence that the defendant and his family had been threatened, thus persuading the defendant to change his story from blaming another man for the shooting to accepting blame himself for fear of retaliation. This evidence was not barred by the hearsay rule, because it was not offered for its truth (i.e., that others actually intended to retaliate against the defendant or his family), but for a different purpose: to show the effect of the statement on the defendant. (See People v. Jackson (91) 235 CA3d 1670, 1680-81 [1 CR2d 778].)
F 2.70i
Vienna Convention
*Add to CJ 2.70:
To be voluntary, a statement must be freely and willingly given with complete understanding and without coercion, duress, threats, use of violence, fear of injury, or any suggestions or promises of leniency or reward. A statement induced by the slightest hope of benefit or the remotest fear of injury is not voluntary. To be voluntary, a statement must be the product of a free will and not under compulsion or any necessity imposed by others.
You may consider the legality, duration, and conditions of detention as factors relevant to the question of whether or not a statement was freely and voluntarily made. However, under the law, in order for a statement to be excluded because of illegal detention, it must be shown that the statement was, in fact, induced by such illegal detention.
Reference has been made in this case to the Vienna Convention treaty. This is an international treaty to which many countries, including the United States and Mexico, are parties. The Vienna Convention provides in part that a foreign national, upon request, has a right to have his country’s consulate notified that he is arrested or detained in any other manner. The authorities should inform the person concerned without delay of his rights under this treaty. Defendant in this case contends that the police failed to inform him of his rights under the Vienna Convention. As a general rule, however, international treaties do not create individual rights which are privately enforceable in court proceedings. Any failure by the police to inform Defendant of his rights under this treaty would not, by itself, make his statement involuntary. Consider this evidence along with all the other evidence in determining the voluntariness of Defendant’s statements.
[Adapted from instruction given in State of Georgia v. Bautista Ramirez (Superior Court of Dekalb County, No. 00CR3159-4).]
Points and Authorities
Under Article 36 of the 1963 Vienna Convention on Consular Relations (VCCR), local authorities must inform all detained foreigners “without delay” of their right to have their consulate notified of their detention. At the request of the national, the authorities must then notify the consulate without delay, facilitate unfettered consular communication and grant consular access to the detainee. Consuls are empowered to arrange for their nationals’ legal representation and to provide a wide range of humanitarian and other assistance, with the consent of the detainee. Local laws and regulations must give “full effect” to the rights enshrined in Article 36. The USA ratified the VCCR without reservations in 1969. So fundamental is the right to consular notification and access that the U.S. Department of State considers it to be required under customary international law in all cases, even if the detainee’s home country has not signed the VCCR. As of 1 January, 2000, at least 165 countries were parties to the VCCR.
The burden of informing the detainee rests with the state. Vienna Convention, art. 36(b) Article 36 confers rights on individuals, not states. (See, e.g., United States v. Briscoe (D. V.I. 1999) 69 FSupp2d 738; United States v. Hongla-Yamche (D. Mass. 1999) 55 FSupp2d 74; United States v. Torres-del Muro (C.D. Ill. 1999) 58 FSupp2d 931.
In March of 2004, the International Court of Justice determined in the Avena case (Mexico v. USA) that advisement of consular rights “without delay” means “a duty upon the arresting authorities to give that information to an arrested person as soon as it is realized that the person is a foreign national, or once there are grounds to think that the person is probably a foreign national.”
A violation of Article 36 may provide the basis for instruction to the jury. (See e.g., State of Georgia v. Bautista Ramirez (Superior Court of Dekalb County, No. 00CR3159-4) [court instructed the jury about the provisions of Article 36 of the Vienna Convention, right to consular notification, and that the jury could consider its violation in determining whether a confession was involuntary]; cf. Breard v. Greene (98) 523 US 371 [140 LEd2d 529; 118 SCt 1352] [Supreme Court considered Breard’s argument on his habeas petition, but the court found that the Vienna Convention issue was procedurally defaulted because Breard did not raise it in the trial court].)
F 2.70j
Defense Theory That Mental Impairment Caused
Defendant To Make A False Confession
*Add to CJ 2.70:
Even if you find that the defendant’s statement was voluntary, you must also decide whether it was truthful. In deciding truthfulness, you should consider whether the defendant had a mental disorder which caused [him] [her] to make a false inculpatory statement. [If you have a reasonable doubt whether the statement was truthful you must resolve that doubt in favor of the defendant and [find [him] [her] not guilty] [find that the statement was not truthful].]
Points and Authorities
The United States Supreme Court has recognized that “a defendant’s case may stand or fall on his ability to convince the jury that the manner in which the confession was obtained casts doubt on its credibility.” (Crane v. Kentucky (86) 476 US 683, 689 [90 LEd2d 636; 106 SCt. 2142].)
Hence, expert testimony regarding false confessions may be appropriate to “let the jury know that a phenomenon known as false confessions exists, how to recognize it, and how to decide whether it fit the facts of the case being tried.” (U.S. v. Hall (7th Cir. 1996) 93 F3d 1337, 1345.) In other words, the defendant should have the right to present expert testimony regarding a mental disorder which may have caused him to make a false inculpatory statement. (See U.S. v. Shay (1st Cir. 1995) 57 F3d 126, 129-30; see also U.S. v. Hall (7th Cir. 1996) 93 F3d 1337, 1345; State v. Buechler (NE 1998) 572 NW2d 65, 73; Miller v. State (IN 2002) 770 NE2d 763 [defendant was denied an opportunity to present a defense by exclusion of the proposed testimony of social psychologist Dr. Richard Ofshe]; see also Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 2012) § 60:26.)
Moreover, evidence that certain police interrogation techniques have a tendency to produce unreliable acknowledgments of guilt may serve to refute the commonly held notion that people do not confess to crimes they did not commit (See People v. Ramos (2004) 121 CA4th 1194 [implying that expert testimony may be admissible if there are facts suggesting that the confession was false]; see also People v. Page (91) 2 CA4th 161, 181-83 [upholding limitation on the scope of expert testimony regarding police interrogation techniques and false confessions but listing matters as to which the expert may testify].)
USE NOTE: The second bracketed sentence of the sample instruction would be appropriate when the statement is an “essential fact” which the prosecution must prove beyond a reasonable doubt. (See CJ 2.01 and CJ 2.02.)
RESEARCH NOTES:
The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation, Richard A. Leo & Richard J. Ofshe, 88 Journal of Criminal Law and Criminology 429, 1998.
For an excellent discussion of various techniques employed by the police to break down a suspect’s resistance and obtain a confession, see R. Ofshe and R. Leo, “The Social Psychology of Police Interrogation, The Theory and Classification of True and False Confessions,” Studies in Law, Politics and Society, Vol. 16, pp. 189-251; and R. Ofshe and R. Leo, “The Decision to Confess Falsely: Rational Choice and Irrational Action” (1997).
F 2.70k Unrecorded Statements To Undercover Police Agent Must Be Viewed With Caution.
See CALCRIM F 358 Inst 13.