F 2.03

F 2.03 n1 False Statements: Arbitrary Inference As Denial Of Due Process.

In People v. Bacigalupo (91) 1 C4th 103, 128 [2 CR2d 335], the court rejected the argument that the consciousness of guilt instruction violates due process by allowing the jury to draw arbitrary inferences from the defendant’s false statements. (See County Court of Ulster County v. Allen (79) 442 US 140, 157 [60 LEd2d 777].) However this issue may be raised on certiorari or federal habeas if preserved in state court. (See generally, FORECITE PG VII.)

F 2.03 n2 False Statements Must Occur After The Charged Crime.

False statements made by the defendant which are operative facts tending to prove commission of the crime itself do not warrant instruction upon consciousness of guilt. The defendant cannot be conscious of his or her guilt until after the crime has been committed. (People v. Rankin (92) 9 CA4th 430, 435-36 [11 CR2d 735].)

F 2.03 n3 Inapplicable To False Statements Which Violate Miranda.

If statements which violate Miranda are admitted for purposes of impeaching the defendant’s testimony, CJ 2.03 must not be given without either (1) excluding from the scope of that instruction the Miranda-violative statements, or (2) instructing the jury that those statements may be considered only on the issue of defendant’s credibility. (See CJ 2.13.1; People v. Stelling DEPUBLISHED (91) 234 CA3d 561 [278 CR 300].) [A copy of the Stellingopinion is available to FORECITE subscribers. Ask for Opinion Bank # O-127.]

F 2.03 n4 False Statements Must Relate To Defendant’s Criminal Liability.

If the defendant makes a false statement which does not relate to the basis for his or her alleged criminal liability then the consciousness of guilt instruction is inappropriate. (See People v. Rankin (92) 9 CA4th 430, 435-36 [11 CR2d 735].) For example, in Rankin the defendant’s false statement about where he obtained the stolen credit card did not really concern his liability for using the card–he never denied he knew the card was stolen–and, therefore, the false statement did not reflect a consciousness of guilt. (See also FORECITE 2.04b, F 2.06e, F 2.52f.)

F 2.03 n5 CJ 2.03 Inappropriate Where Defendant Later Confesses.

In People v. Mattson (90) 50 C3d 826, 871-72 [268 CR 802], the defendant made false pretrial statements about an offense with which he was not charged. Since the defendant had later given a full confession to those uncharged crimes, the Supreme Court agreed that “the probative value of, and inference of consciousness of guilt from, the initial denial was tenuous.” (Id. at 872.)

Accordingly, CJ 2.03 should not be given in such circumstances.

[Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-642.]

F 2.03 n6 Only Applicable To Collateral Facts Or Incredible Statements.

In United States v. Littlefield (1st Cir. 1988) 840 F2d 143, the falsehood consciousness of guilt instruction was criticized on the grounds that it is superfluous (i.e. the jury must already believe the government’s case in order to disbelieve the defendant). Thus, Littlefield suggests the instruction should be limited to situations where: (1) the defendant’s statement involves “a matter collateral to the facts establishing guilt” or (2) the defendant’s statement is “so incredible that its very implausibility suggests that it was created to conceal guilt.” (Id. at 149.) (See People v. Wimberly (92) 5 CA4th 773, 795-96, fn 18 [7 CR2d 152] [Littlefield argument recognized but not resolved].)

F 2.03 n7 Not Applicable Where Defendant’s Statements Are Consistent.

In People v. Rubio (77) 71 CA3d 757, 769 [139 CR 750], the court concluded that CJ 2.03 is “not applicable in a situation where a defendant makes an explanation of behavior to the police which is consistent with his self-serving testimony at trial that conflicts with the prosecution’s evidence before the jury.” (Rubio at 769 [original emphasis].)

In People v. Green (80) 27 C3d 1, 40-41 [164 CR 1], the Supreme Court, while recognizing the existence of the Rubio rule, failed to either approve or disapprove it.

In People v. Benson (89) 210 CA3d 1223, 1232-33 [259 CR 9], the court questioned whether Rubio is still valid in light of People v. Kimble (88) 44 C3d 480 [244 CR 148]. However, Kimble merely addressed the admissibility of the defendant’s testimony and, thus, did not address Rubio’s concern that CJ 2.03 “casts specific doubt on a defendant’s credibility as a witness and singles out defendant’s testimony as subject to more particular scrutiny than that attached to prosecution witnesses.” (Rubio 71 CA3d at 769; emphasis in original.)

Nor did Benson — despite the doubt expressed in dicta about Rubio’s continued viability — specifically depart from the Rubio rule. (Benson 210 CA3d at 1233.)

However, Rubio was expressly disapproved in People v. Edwards (92) 8 CA4th 1092, 1101-04 [10 CR2d 821].

F 2.03 n8 False Statement Instruction As Prosecution Pinpoint Instruction.

People v. Wright (88) 45 C3d 1126, 1135 [248 CR 600] holds that a defense pinpoint instruction is improperly argumentative if it directs the jury’s attention to specific evidence and “impl[ies] the conclusion to be drawn from that evidence.” (People v. Harris (89) 47 C3d 1047, 1098, fn 31 [255 CR 352].)

A functionally equivalent prosecution pinpoint instruction must therefore be held improperly argumentative as well. “There should be absolute impartiality as between the People and the defendant in the matter of instructions ….” (People v. Moore (54) 43 C2d 517, 526-27 [275 P2d 485]; accord, Reagan v. United States (1895) 157 US 301, 310 [39 LEd 709].) For example, it is improper to give an instruction which suggests that certain evidence reasonably supports the conclusion that the defendant harbored the requisite mental state. (People v. Fugatt DEPUBLISHED (91) 229 CA3d 240 [280 CR 37].)

CJ 2.03 tells the jurors that they may consider evidence that the defendant made a willfully false pretrial statement as tending to prove consciousness of guilt and, hence, as tending to show that the defendant is in fact guilty. Therefore, CJ 2.03 is subject to objection under the logical application of Wright and the authorities cited above. (See A New Challenge to Prosecution Pinpoint Instructions, Therene Powell, CACJ Forum, Vol. 17 No. 4, pp. 13-19; but see People v. Jackson (96) 13 C4th 1164, 1224 [56 CR2d 49] [CJ 2.03, CJ 2.04, CJ 2.52 and CJ 2.06 are not improper pinpoint instructions because the cautionary nature of the instructions benefits the defense, admonishing the jury to circumspection regarding evidence that might otherwise be considered decisively inculpatory].) (See F 2.03 n9 for argument under Jackson [defendant should be able to waive as a benefit].)

The courts of appeal have been willing to hold that overly specific prosecution instructions are improper. (See discussion of People v. Fugatt DEPUBLISHED (91) 229 CA3d 240 [280 CR 37] in FORECITE F 8.11 n2; see alsoPeople v. Borango UNPUBLISHED PORTION of opinion (F013523), holding that an instruction specifically referring to the defendant’s pretrial statement to the police was an improper pinpoint instruction under Wright.)

However, in People v. Bacigalupo (91) 1 C4th 103, 127-28 [2 CR2d 335], the court held that CJ 2.03 is not objectionable as argumentative or biased. (See also People v. Kelly (92) 1 C4th 495, 531-32 [3 CR2d 677] [CJ 2.03 not an improper pinpoint instruction].)

NOTE: The court’s reasoning in Kelly is unpersuasive. It concluded that CJ 2.03 is not an improper pinpoint instruction because it also informs the jury that the consciousness of guilt evidence “is not sufficient by itself to prove guilt.” The court argued that this language saved the instruction because the defendant does not quarrel with that language and “[i]f the court tells the jury that certain evidence is not alone sufficient to convict, it must necessarily inform the jury, either expressly or impliedly, that it may at least consider the evidence.” This mischaracterizes the issue. The defendant’s contention was that CJ 2.03 should not have been given at all. The fact that a portion of the instruction may have been acceptable to the defendant does not answer the argument.

Since the Supreme Court’s rejection of this argument in Bacigalupo and Kelly, the court has continued to reject defense pinpoint instructions which are operatively identical to the consciousness of guilt instructions such as CJ 2.03 and CJ 2.52. (See, e.g., People v. Earp (99) 20 C4th 826, 886 [85 CR2d 857] [CSC upheld trial court’s refusal to give defense pinpoint instruction because it invited the jury to “draw inferences favorable to one of the parties from specified items of evidence” and, therefore, was “argumentative”]; People v. Michaels (2002) 28 C4th 486, 539 [122 CR2d 285] [instruction on specific evidence properly rejected as argumentative]; see also People v. Cash (2002) 28 C4th 703 [122 CR2d 545] [prosecution permitted to relate CJ 2.06 to specific evidence].) This continued disfavoring of defense pinpoint instructions and favoring of analogous prosecution instructions implicates the due process clause of the federal constitution (5th and 14th Amendments).

In jurisdictions where such instructions are given it may still be argued that they are an improper comment on the evidence. This argument is especially forceful if other similar defense oriented instructions are not allowed. “There should be absolute impartiality as between the People and the defendant in the matter of instructions ….” (People v. Moore (54) 43 C2d 517, 526-27 [275 P2d 485]; accord, Reagan v. U.S. (1895) 157 US 301, 310 [15 SCt 610; 39 LEd 709].) Hence, if the prosecution is permitted to obtain consciousness of guilt instructions which comment on the evidence and the defense is not, the due process clause of the federal constitution may be implicated. (See Wardius v. Oregon (73) 412 US 470, 475-76 [93 SCt 2208; 37 LEd2d 82]; see also Cool v. United States (72) 409 US 100, 103 n. 4 [34 LEd2d 335; 93 SCt 354] [reversible error to instruct jury that it may convict solely on the basis of accomplice testimony but not that it may acquit based on the accomplice testimony].)

See also CC 362.2 Inst 6.

F 2.03 n17 Introduction Of Un-Mirandized Statement For Exculpatory Value.

(See People v. Williams (2000) 79 CA4th 1157, 1167 [94 CR2d 727] [if defendant introduces un-Mirandized statement for its exculpatory value, court may give CJ 2.03].)

F 2.03 n18 Un-Mirandized Statement: Introduction By Prosecution To Impeach.

If the prosecution introduces the statement to impeach, CALJIC 2.03 may not be given (People v. Williams (2000) 79 CA4th 1157, 1169 [94 CR2d 727]; Hinman v. McCarthy (9th Cir. 1982) 676 F2d 343)].)

F 2.03 n19 False Statements: Inference Of Guilt.

People v. Williams (2000) 79 CA4th 1157, 1168 [94 CR2d 727] [jury may infer guilt from false or misleading statements made to police without Miranda warnings].

F 2.03 n20 Challenge To CJ 2.03 As Duplicative Of Circumstantial Evidence Instruction.

For a potential challenge to CJ 2.03 on the basis that it is merely a restatement of the general circumstantial evidence instruction, see FORECITE PG VII(C)(9.1).

F 2.03 n21 Consciousness Of Guilt As Improper Comment On The Evidence.

See FORECITE F 2.52 n10.

F 2.03 n22 Instruction On Consciousness Of Guilt Inference Improper Without Supporting Evidence.

See FORECITE PG VII(C)(7.1).

F 2.03 n23 Consciousness Of Guilty Only Applicable To False Statements Made Before Trial.

See FORECITE F 362.2 Inst 6.

F 2.03a Consciousness Of Guilt: Falsehood – Proof Of Necessary Preliminary Facts

*Add to CJ 2.03:

Before considering the defendant’s statements, you must determine the existence of the following preliminary facts:

1. Whether the defendant made the statements; and

2. Whether the defendant deliberately lied to hide [his] [her] complicity in the crime.

Unless you find both of these preliminary facts to exist, you must disregard the statements.

Points and Authorities

It is necessary to establish two preliminary facts before false statements made before trial are relevant to establish a consciousness of guilt on the part of the defendant:

1. That the defendant made the false statements (People v. Kimble (88) 44 C3d 480, 498 [244 CR 148]); and,

2. That the defendant made these statements deliberately or wilfully so as to hide his/her complicity in the crime. (Ibid.)

Since these preliminary factual determinations are necessary to establish the relevance of the statements, the defendant has the right, under EC 403(c)(1), to an instruction informing the jury of the requirement that they first determine the preliminary facts before considering the evidence for the stated purpose. (See Rucker & Overland, California Criminal Forms & Instructions § 41:31; see also, People v. Louis (84) 159 CA3d 156, 161 [205 CR 306]; People v. Albertson (44) 23 C2d 550, 582 [145 P2d 7].)

The failure to adequately or correctly instruct the jury upon consciousness of guilt lessens the prosecution’s burden and allows the jury to draw impermissible inferences of guilt in violation of the defendant’s state (Art. I § 14 and § 15) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. (See FORECITE PG VII.)

F 2.03b Falsehood: Inapplicable To Nature Or Degree Of Guilt

*Add to CJ 2.03:

The defendant’s consciousness of guilt, if any, is relevant upon the questions of whether the defendant was afraid of being apprehended and whether the defendant thought [he] [she] had done something wrong. Consciousness of guilt may not be considered [in determining the degree of defendant’s guilt] [or] [in determining which of the charged offenses, if any, the defendant committed].

Points and Authorities

The essence of consciousness of guilt evidence is that it shows a fear of apprehension and, hence, is probative of whether the defendant committed the crime. Fear of apprehension, however, while relevant to the issue of whether a crime was committed, does not have any logical relevance as to the nature of the crime the defendant committed.

Therefore, in cases where the defendant’s act creates potential criminal liability for offenses of different degrees and/or mens rea the jury may not rely upon consciousness of guilt evidence to determine which particular offense was committed. Upon request, the defendant should have the right to instruct the jury upon the limited purpose for which such evidence may be used. (EC 355.) [See Points and Authorities at FORECITE F 2.06a; see also FORECITE F 2.15a.]

NOTES

In a case where the defendant is separately charged with multiple offenses, e.g., robbery and murder, the consciousness of guilt instruction may be avoided by pleading guilty to the robbery and stipulating to the elements thereof. (See FORECITE F 2.06a.)

Other related FORECITE instructions include FORECITE F 2.04a, FORECITE F 2.05a, FORECITE F 2.06a, FORECITE F 2.15a and FORECITE F 2.52c.

People v. Cain (95) 10 C4th 1, 33-34 [40 CR2d 481] held that CJ 2.03 did not mislead the jury into improper inferences regarding the defendant’s intent at the time the crimes were committed. However, this conclusion does not preclude clarification of the instruction at trial upon request.

F 2.03c

False Statements Must Relate To Charged Crime

*Add to CJ 2.03:

If you conclude that the defendant did make false statements, you may not consider them for any purpose unless you first determine that the statements demonstrate a consciousness of guilt as to the charged offense.

Points and Authorities

“[E]vidence that the defendant fled the scene of a crime is admissible to demonstrate consciousness of guilt” when the “consciousness of guilt concern[s] the crime charged ….” (People v. Williams (88) 44 C3d 1127, 1143, fn 9 [245 CR 635] quoting U.S. v. Myers (5th Cir. 1977) 550 F2d 1036, 1049.) Accordingly, when there is no basis upon which to determine that the defendant’s consciousness of guilt was directed to the offenses for which he was on trial, as opposed to a different offense, the consciousness of guilt evidence is inadmissible to show the charged crime. (U.S. v. Myers 550 F2d at 1050; see also People v. Rankin (92) 9 CA4th 430, 435-36 [11 CR2d 735].) However, “[a] reasonable juror would understand ‘consciousness of guilt’ to mean ‘consciousness of some wrongdoing’ rather than ‘consciousness of having committed the specific offense charged.'” (People v. Crandell (88) 46 C3d 833, 871 [251 CR 227]; see also People v. San Nicolas (2004) 34 C4th 614, 667 [false statements regarding a crime show a consciousness of guilt as to all the offenses committed during “a single attack”].) Hence, because the applicability of consciousness of guilt to the charged offense is a preliminary fact that is a prerequisite to the admissibility of the evidence, the jury should be instructed that it may not consider this evidence unless it finds said preliminary fact. (See EC 403; see also FORECITE F 2.001a.)

NOTES

In People v. Griffin (88) 46 C3d 1011, 1027 [251 CR 643] it was held that a jury may rationally infer that false statements about a crime reflect consciousness of guilt of all offenses that were “committed” during a single attack. InPeople v. Rodrigues (94) 8 C4th 1060, 1140 [36 CR2d 235] it was held that the jury could reasonably have drawn inferences that false statements about an arm injury “tended to show consciousness of guilt of all the charged crimes.” However, in Rodrigues the defense relied upon an all-or-nothing strategy to cast doubt solely on the issue of identity. Hence, to the extent that the arm injury about which the defendant made false statements was probative of identity, it related to all the charged offenses.

People v. Holt (97) 15 C4th 619 [63 CR2d 782], concluded that CJ 2.03 does not improperly permit the jury to infer that the defendant’s false statements about one offense may be a basis for concluding that the statement reflects consciousness of guilt of a crime that has not been committed. However, this does not obviate the need to, when appropriate, limit CJ 2.03 and other consciousness of guilt instructions to the charged offenses to which the consciousness of guilt relates.

[See Brief Bank # B-570 for additional briefing on this issue.]

F 2.03d

Falsehood — Application To Third Party

*Modify CJ 2.03 as follows [added language is capitalized; deleted language is between <<>>]:

Evidence that before this trial <<[a] [the] defendant>> __________ [name of suspected third party] WILLFULLY made a false or misleading statement concerning the crime[s] for which <<[he] [she]>>DEFENDANT is now being tried, is a circumstance tending to prove a consciousness of guilt on the part of __________ [name of third party]. <<However,>> Such conduct <<is not sufficient by itself to prove guilt, and>> MAY BE SUFFICIENT BY ITSELF TO LEAVE YOU WITH A REASONABLE DOUBT AS TO THE GUILT OF THE DEFENDANT. HOWEVER, its weight and significance, if any, are matters for your determination.

Points and Authorities

It is well established that the defendant may rely upon the theory that a third party committed the charged offense. (People v. Edelbacher (89) 47 C3d 983, 1017 [254 CR 586]; People v. Hall (86) 41 C3d 826, 833 [226 CR 112].) It is also well settled that 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 364]; People v. Wright (85) 45 C3d 1126, 1136-37 [248 CR 600]; People v. Adrian (82) 135 CA3d 335, 342 [185 CR 506]; EC 502; FORECITE PG III (A)&(D).) Therefore, when evidence of third-party culpability has been presented, the defense has a right to an instruction upon third-party culpability. (See FORECITE F 4.020.)

These same principles require that, if the evidence of third-party culpability theory includes consciousness of guilt on the part of the third party, then the standard consciousness of guilt instructions should be modified to pinpoint this theory of the defense.

Further, the prosecution’s burden logically permits the jury to rely entirely upon a single defense theory to find a reasonable doubt as to guilt. (See CJ 2.40.) It is not the defendant’s burden to prove that the third party is guilty, but only to raise a reasonable doubt as to the defendant’s own guilt. (See, e.g., People v. Hall (80) 28 C3d 143, 159 [167 CR 844].) Accordingly, the instruction should follow the pattern of CJ 2.40 which states the basic rule that a reasonable doubt as to guilt may be founded entirely upon a single evidentiary inference.

The failure to provide such an instruction would implicate the defendant’s federal constitutional rights to defend against the charge, to trial by jury and to due process (6th and 14th Amendments).

NOTES

[See Brief Bank # B-590 and Brief Bank # B-759 for additional briefing on this issue.]

F 2.03e

Falsehood — By The Police Or Prosecution

*Modify CJ 2.03 to provide as follows [added language is capitalized; deleted language is between <<>>]:

If you find that before this trial <<[a] [the] [defendant]>> THE POLICE [__________] [insert other appropriate person, e.g., D.A. investigator] made a willfully false or deliberately misleading statement concerning the crime[s] for which <<[he] [she]>> DEFENDANT is now being tried, you may consider such statement <<as a circumstance tending to prove a consciousness of guilt. However, such conduct is not sufficient by itself to prove guilt, and its weight and significant, if any, are matters for your determination>> TO DRAW AN INFERENCE ADVERSE TO THE PROSECUTION. SUCH AN INFERENCE MAY BE SUFFICIENT STANDING ALONE TO LEAVE YOU WITH A REASONABLE DOUBT AS TO DEFENDANT’S GUILT.

Points and Authorities

[See FORECITE F 2.06b.]

F 2.03f

False Statement Must Suggest No True Exculpatory Explanation

*Add to CJ 2.03:

Only where the defendant’s false statement or testimony is intentional, rather than merely mistaken and where such statement or testimony suggests that the defendant has no true exculpatory explanation can it be considered as an admission of guilt.

Points and Authorities

People v. Amador (70) 8 CA3d 788, 792 [87 CR 662].)

F 2.03g

Multiple Forms Of Consciousness Of Guilt Not Alone

Sufficient To Convict

*Modify last sentence of CJ 2.03 as follows [added language is capitalized and underlined; deleted language is between << >> and lined out:]

However, that conduct is not sufficient by itself OR IN COMBINATION WITH [OTHER ALLEGED CONSCIOUSNESS OF GUILT EVIDENCE] [THE ALLEGED ________ (INSERT OTHER SPECIFIC CONSCIOUSNESS OF GUILT EVIDENCE) to prove guilt, and its weight and significance, if any, are for you to decide.

Points and Authorities

The California Supreme Court has repeatedly approved instructions which admonish the jury that specific forms of consciousness of guilt, such as flight, false statements, destruction of evidence, etc., are not alone sufficient to prove guilt. (See e.g., People v. Holloway (2004) 33 C4th 96, 142; see also People v. Jenkins (79) 91 CA3d 579 [evidence of falsehoods, attempts to fabricate evidence, and efforts to suppress evidence are, in themselves, sufficient to establish guilt].)

This is consistent with a wide range of authorities in other jurisdictions. It is widely recognized that consciousness of guilt evidence is not alone sufficient to convict. (See e.g., Jackson v. State (FL 1991) 575 So2d 181, 188-89 [flight instruction permissible only “where there is significantly more evidence against the defendant than flight standing alone”]; see also State v. Freeney (CT 1994) 637 A2d 1088, 1100 [“Basic fairness and due process of law require that the trial court be even handed and instruct the jury that there could be other reasons for the defendant’s flight”]; Commonwealth v. Robles (MA 1996) 666 NE2d 497, 504 [“the charge properly instructed the jury that consciousness of guilt alone is insufficient evidence of guilt…”]; Commonwealth v. Lawrence (MA 1989) 536 NE2d 571, 582; Commonwealth v. Toney (MA 1982) 433 NE2d 425, 432; State v. Myers (NC 1983) 305 SE2d 506, 511 [“[P]roof of flight, standing alone, is never sufficient to establish guilt”]; State v. Voit