F 2.06

F 2.06 n1 Suppression of Evidence: Improper Pinpoint Instruction.

CJ 2.06 is subject to objection based on the fact that it improperly pinpoints the prosecution’s evidence. (See FORECITE F 2.03 n8.)

ALERT: See FORECITE Notes at FORECITE F 2.03 regarding false statements for other issues which may also apply to suppression of evidence per CJ 2.06.

F 2.06 n2 Consideration Of Witness’s Fear.

Evidence that a defendant has threatened a witness implies a consciousness of guilt and is thus highly prejudicial and admissible only if adequately substantiated. (People v. Valdez (2004) 32 C4th 73, 137; People v. Warren (88) 45 C3d 471, 481 [247 CR 172].) However, evidence that a witness is afraid to testify is relevant to the credibility of that witness and, therefore, admissible. (Ibid.; see also Dudley v. Duckworth (7th Cir. 1988) 854 F2d 967, 972 [fundamentally unfair for trial court not to strike extended testimony by prosecution witness that he had received anonymous telephone calls causing him to fear for his family’s safety should he testify]; People v. Williams (97) 16 C4th 153, 208 [66 CR2d 123].)

If evidence of a witness‘s fear is admitted, counsel may wish to consider a limiting instruction which precludes the jury from considering that the witness‘s fear was the product of intimidation by the defendant or a third person authorized by the defendant. (See Williams, 16 C4th at 212 [distinguishing Dudley v. Duckworth on the basis that the trial court failed there to admonish the jury to disregard testimony about unattributed threats]; see e.g., FORECITE F 2.010a.) Of course, any such limiting instruction would have to be considered in light of the caveat that such an instruction could actually highlight rather than reduce the prejudice. See FORECITE PG X(e)(19) and FORECITE F 2.002a.

ALERT: See FORECITE Notes at FORECITE F 2.03 regarding false statements for other issues which may also apply to suppression of evidence per CJ 2.06.

F 2.06 n3 Suppressing Evidence: Change of Appearance.

Specific reference to the defendant’s “change of appearance” does not create an improper pinpoint instruction. (People v. Randle (92) 8 CA4th 1023, 1036-37 [10 CR2d 804]; see also People v. Fitzpatrick (92) 2 CA4th 1285, 1296-1297 [3 CR2d 808].) The Randle court held that such tailoring of the instruction referred only to “the generic type of consciousness of guilt disclosed by the evidence.” (Randle 8 CA4th at 1037.) The court noted that “[a] contrary conclusion might have been reached if the trial court had specifically directed the jury’s attention to the change of hairstyle or the missing shirt.” (Id. at 1036-37.)

Note: Randle’s distinction between “generic” and “specific” facts could prove useful when attempting to craft defense-oriented pinpoint instructions. So long as the instruction characterizes the evidence in a “generic” form, the instruction should be proper under the reasoning of Randle.

ALERT: See FORECITE Notes at FORECITE F 2.03 regarding false statements for other issues which may also apply to suppression of evidence per CJ 2.06.

F 2.06 n4 Consciousness of Guilt From Defendant’s Refusal to Submit to Blood Test.

A. Fifth Amendment: In People v. Roberts (92) 2 C4th 271, 310-311 [6 CR2d 276], the court held that it was not Fifth Amendment error to instruct the jury that it could infer consciousness of guilt from the defendant’s refusal to take a blood test. (But see FORECITE F 16.835 n2 [discussing cases from other jurisdictions].)

B. Fourth Amendment: The Fourth Amendment’s prohibition of unreasonable searches and seizures requires that there be probable cause for arrest before a defendant forfeits his right to refuse a blood test. (Schmerber v. California (66) 384 US 757 at 768-70 [16 LEd2d 908; 86 SCt 1826]; see also Burnett v. Anchorage (9th Cir. 1986) 806 F2d 1447, 1451 [defendant may challenge evidence of his refusal to submit to a breath test by attacking the validity of the arrest].) Roberts indicated that if the record had established that the defendant refused to take the blood test for reasons within the scope of the 4th Amendment, the propriety of the consciousness of guilt instruction “might require more scrutiny.” Hence, if it can be proven that the blood test would have violated the defendant’s Fourth Amendment rights it would improperly chill the exercise of those rights to instruct the jury upon consciousness of guilt. If the defendant refused to take the blood test for reasons within the scope of the 4th Amendment, this should be put on the record as a basis for objecting to the instruction. (See People v. Wood (2002) 103 CA4th 803 [127 CR 2d 132] [testimony that defendant refused search without a warrant unconstitutionally punished him for invoking his Fourth Amendment rights]; People v. Fiscalini (91) 228 CA3d 1639 [279 CR 682] [extraction of blood was unreasonable seizure because defendant had already submitted to urine test which was functional equivalent of blood test]; see also Nelson v. City of Irvine (1998 9th Cir.) 143 F3d 1196 [drunk driving suspect who submits to breath test has Fourth Amendment right against forcible taking of blood for blood test]; but see People v. Wilson (2003) 114 CA4th 953 [defendant’s voluntary submission to preliminary alcohol screening (PAS) test did not satisfy requirement that he submit to blood alcohol level test after arrest, distinguishing People v. Williams (2002) 28 C4th 408 and People v. Fiscalini].)

C. Defendant’s Mistaken Reliance On Rights To Negate Consciousness Of Guilt: “Whatever the merits of this line of reasoning [that refusal to provide non-testimonial evidence does not violate the Fifth Amendment], we think it is inapplicable to cases where the defendant refuses to consent to a search which he mistakenly believes to be illegal.” (Elson v. State (AK 1983) 659 P2d 1195, 1199.) Even if no constitutional rights were violated, the defendant’s subjective reliance upon his/her constitutional rights provides a non-culpable explanation for his/her refusal. If this is the case, the jury should be required to make a preliminary finding that the defendant was not relying on his/her constitutional rights. (See e.g., FORECITE F 2.52a; EC 403(a).) This may also be a matter for argument.

ALERT: See FORECITE Notes at FORECITE F 2.03 et seq. regarding false statements for other issues which may also apply to suppression of evidence per CJ 2.06.

F 2.06 n5 Suppression of Evidence: Refusal to Participate in Lineup.

In People v. Johnson (92) 3 C4th 1183, 1235-36 [14 CR2d 702], the court held that it is not erroneous to instruct the jury that the defendant’s failure to participate in the lineup may be a circumstance tending to show a consciousness of guilt. (See also People v. Sudduth (66) 65 C2d 543, 546-547 [55 CR 393] [refusal to give breath sample]; People v. Huston (89) 210 CA3d 192, 218 [258 CR 393] [refusal to give urine sample]; but see Goodwin v. Superior Court (2001) 90 CA4th 215 [108 CR2d 553] [court may not compel a person to be in a lineup before commencement of criminal proceedings].)

PRACTICE NOTE: If the only evidence of consciousness of guilt is the defendant’s failure to participate in the lineup etc. then, to limit jury speculation as to whether defendant suppressed other evidence, counsel may wish to request modification of the first sentence of CJ 2.06 to provide as follows: “If you find that the defendant refused to participate in the lineup ….” While Johnson rejects the argument that the trial judge must make such a modification sua sponte (Johnson 3 C4th at 1235-36), it does not preclude the modification upon request. Upon request the defense should be able to limit the instruction to the specific factors which are applicable.

ALERT: See FORECITE Notes at FORECITE F 2.03 et seq. regarding false statements for other issues which may also apply to suppression of evidence per CJ 2.06.

F 2.06 n6 Suppression of Evidence: When Defendant Doesn’t Contest Identity.

The defendant’s false statements and/or suppression or refusal to provide evidence warrants the giving of a consciousness of guilt instruction even if the defendant only contests intent to kill at trial. (People v. Clark (93) 5 C4th 950, 1022 [22 CR2d 689].)

However, there remains a federal constitutional issue as to whether the nature or degree of guilt may be rationally inferred from consciousness of guilt evidence. (See FORECITE F 2.06a and FORECITE F 2.15a; see also People v. Crandell (88) 46 C3d 833, 871 [251 CR 227] [“A reasonable juror would understand ‘consciousness of guilt’ to mean ‘conscious of some wrongdoing’ rather than ‘consciousness of having committed the specific offense charged.'”].)

ALERT: See FORECITE Notes at FORECITE F 2.03 regarding false statements for other issues which may also apply to suppression of evidence per CJ 2.06.

F 2.06 n7 Lack Of Consciousness Of Guilt Required By Due Process.

See FORECITE F 2.52h.

F 2.06 n8 Instruction Regarding Jury’s Consideration Of Evidence Not Timely Disclosed By The Defense.

PC 1054.3 requires disclosure of evidence and witnesses by the defense to the prosection. PC 1054.5 permits various sanctions against the defense including advising the jury of any failure or refusal to disclose, and of any untimely disclosure.

However, such an instruction may abridge the defendant’s federal constitutional rights to due process, compulsory process and trial by jury (6th and 14th Amendments) if it suggests that the evidence should be viewed with caution or disregarded. In Washington v. Texas (67) 388 US 14 [18 LEd2d 1019; 87 SCt 1920] the court held that the right to compulsory process is applicable to the states. Taylor v. Illinois (88) 484 US 400 [98 LEd2d 798; 108 SCt 646] held that the 6th Amendment right to compulsory process may be offended by a discovery sanction which entirely excludes the testimony of a material defense witness. (Taylor, 484 US at 409.) In determining what sanction to impose, the court must consider the prejudice to the truth-determining function of the trial process and whether the failure to comply was “willful and motivated by a desire to obtain a tactical advantage.” (Taylor, 484 US at 415; see alsoMichigan v. Lucas (91) 500 US 145 [114 LEd2d 205; 111 SCt 1743] [preclusion sanction may be imposed but is the exception rather than the rule].) Hence, preclusion sanctions “should be reserved to those cases in which the record demonstrates a willful and deliberate violation which was motivated by a desire to obtain a tactical advantage at trial such as the plan to present fabricated testimony in Taylor.” (People v. Edwards (93) 17 CA4th 1248, 1263 [22 CR2d 3]; see also McGinty v. Superior Court (94) 26 CA4th 204, 215 [31 CR2d 292]; People v. Gonzales (94) 22 CA4th 1744 [28 CR2d 325].) [See Brief Bank # B-707 for additional briefing on this issue.]

F 2.06 n9 False Statement May Provide Basis For Both Suppression Of Evidence (CJ 2.06) And False Statement (CJ 2.03) Instructions.

People v. Jackson (96) 13 C4th 1164, 1225 [56 CR2d 49] held that the defendant’s false statement regarding the presence of evidence in his room justifies the giving of CJ 2.06 regarding an attempt to suppress evidence as well as CJ 2.03 regarding a false or deliberately misleading statement. The court held that CJ 2.03 concerns a broad class of deceptive statements, while CJ 2.06 concerns a narrower but overlapping category of “particularly telling deceptions.” (Jackson, 13 C4th at 1225.) Accordingly, there is no reason why a false statement designed to conceal inculpatory evidence cannot be the basis for the giving of both of these instructions. (Ibid.)

F 2.06 n10 Consciousness Of Guilt As Improper Comment On The Evidence.

See FORECITE F 2.52 n10.

F 2.06 n11 Suppression Of Evidence By Police Or Prosecution: Evidence Undermining The Credibility Of Prosecution Witnesses.

In order to find a violation of Brady v. Maryland [(63) 373 US 83], the defense must prove three elements: (1) the prosecutor has suppressed or withheld evidence; (2) the evidence is favorable to the defense; and (3) the evidence is material to the defense. (Moore v. Illinois (72) 408 US 786 [33 LEd2d 706; 92 SCt 2562]; In re Pratt (99) 69 CA4th 1294, 1312.) Evidence favorable to the defense includes evidence which undermines the credibility of a prosecution witness. (United States v. Bagley (85) 473 US 667, 676; United States v. Gordon (9th Cir. 1988) 844 F2d 1397, 1403; In re Pratt (99) 69 CA4th 1294, 1315-16; People v. Martinez (2002) 103 CA4th 1071, 1078-79.)

F 2.06 n12 Instruction On Consciousness Of Guilt Inference Improper Without Supporting Evidence.

(See FORECITE PG VII(C)(7.1).)

F 2.06a

Suppression of Evidence: Not Relevant To The Degree Or Nature Of Guilt

*Add to CJ 2.06:

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 committed a crime. Consciousness of guilt may not be considered [in determining the degree of defendant’s guilt] [or] [in determining which of the charged offenses 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.

For example, fear of apprehension may be relevant on the question of whether a criminal homicide was committed but it does not establish that the homicide was committed with malice aforethought or premeditation and deliberation. (See, People v. Anderson (68) 70 C2d 15, 32-33 [73 CR 550]; Commonwealth v. Anderson (Mass. 1985) 486 NE2d 19, 23, fn 12; see also, LaFave (1972) Criminal Law, § 33 at 565; Solomon v. Commissioner (E.D.N.Y. 1992) 786 F Supp 218, 225 [acts subsequent to victim’s death cannot show killing was committed with “depraved indifference.”].)

In other words, while consciousness of guilt evidence is “highly probative of whether defendant committed the crime, … it does not bear upon the state of the defendant’s mind at the time of the commission of the crime.” (People v. Anderson 70 C2d at 33; but see, People v. Anderson (85) 38 C3d 58, 62 [210 CR 777] [Dicta that post-offense conduct “may be relevant” to state of mind before crime but not considering whether such evidence can show more than simply a criminal versus a non-criminal state of mind.]; see also, U.S. v. Felix-Gutierrez (9th Cir. 1991) 940 F2d 1200, 1207 [probative value of flight depends, inter alia, upon whether consciousness of guilt concerns the crime charged].)

People v. Welch (99) 20 C4th 701, 757 [85 CR2d 203] concluded that the trial court did not err in refusing to add the following to the standard flight instruction: “While this inference of guilt goes to identity it does not tell us anything about degree.” However, the court did not contest the legal accuracy of the requested modification but merely concluded that the standard flight instruction “accurately conveys the potential significance of flight.” (20 C4th at 757.) Accordingly, it is still within the discretion of the trial court to give such a requested modification since it is a correct statement of the law and could only serve to further the jury’s understanding of the law.

In sum, the above authority suggests that an instruction may be requested limiting the jury’s consideration to whether the defendant committed a crime and not the degree or nature thereof. (The California Supreme Court, while rejecting arguments that the standard consciousness of guilt violates due process (see People v. Jackson (96) 13 C4th 1164, 1224 [56 CR2d 49] [rejecting due process and IAC claims from failure to give instruction limiting applicability of consciousness of guilt instruction to commission of the act as opposed to mental state]; People v. Breaux (91) 1 C4th 281, 304 [3 CR2d 81]; People v. Griffin (88) 46 C3d 1011, 1027 [251 CR 643]; People v. Nicolaus (91) 54 C3d 551, 579-80 [286 CR 628]; People v. Crandell (88) 46 C3d 833, 871 [251 CR 227],) has not specifically addressed the propriety of a limiting instruction on request.) (See EC 353.) This instruction would be particularly appropriate when the major issue facing the jury is the degree of the offense.

People v. Welch (99) 20 C4th 701, 757 [85 CR2d 203] held that the trial court did not err in refusing to add to the flight instruction the following: “While this inference of guilt goes to identity it does not tell us anything about degree.” The court reiterated its belief that the standard flight instruction does not address a defendant’s mental state and does not direct or compel the drawing of an adverse inference in regard thereto.

However, when such an issue is a focus of the defense theory, there should be a right to a specific clarifying instruction on this point. (See PG V(B)(1.1) and PG V(B)(1.2).) Moreover, if such an instruction is refused as inWelch, counsel should be permitted to argue this point to the jury and to specifically inform the jury that this point is not included in the instructions because the California Supreme Court has held that the flight instruction does not and should not be considered by the jury to relate to the defendant’s mental state. (See FORECITE F 1.00l.)

People v. Han (2000) 78 CA4th 797, 807 [93 CR2d 139] rejected an argument that a consciousness of guilt instruction should have been limited so as not to be considered regarding the degree of guilt or which of the charged offenses the defendant committed.

However, the Han addresses neither the rationale nor the authority in support of this argument. Moreover, Han‘s suggestion that the limiting instruction is “somewhat illogical because many people would run from a felony but few from an infraction,” is inapposite. When the defendant is charged with two felonies, or a single felony which may either be first degree murder, second degree murder or manslaughter, the fact that the defendant engaged in consciousness of guilt activity is simply not relevant as to which of the two serious felonies was committed or as to the degree of the homicide. It is not rationale to assume that people would run from the commission of a first degree murder and not run from the commission of a second degree murder. (See generally FORECITE PG VII(C)(9) [Irrational Use Of Permissive Inference Violates Due Process].)

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(C).)

PRACTICE NOTE: Because the proposed modification is an accurate statement of the law, if the request is denied by the trial court, counsel should be permitted to argue the matter to the jury. Such argument may explain that no additional instruction was given on the issue because it is assumed that the jury will understand the standard instruction to prohibit the consideration of flight as to issues other than identity. (See FORECITE F 1.00l.)

NOTES

Under the appropriate circumstances the selected use of stipulations (see e.g., People v. Ramos (82) 30 C3d 553, 577 [180 CR 266]; People v. Hall (80) 28 C3d 143, 152 [167 CR 844]) may enable counsel to prevent the giving of consciousness of guilt instructions to the jury. (See People v. Robinson UNPUBLISHED PORTION (90) 221 CA3d 1586 [271 CR 403], recognizing that where consciousness of guilt applies to only one of two counts the instruction may be avoided by pleading guilty to the count to which it applies; see also People v. Breaux (91) 1 C4th 281, 304 [3 CR2d 81]; People v. Griffin (88) 46 C3d 1011, 1027 [251 CR 643] [concession short of actual guilty plea does not remove issue from jury’s consideration]; see also FORECITE F 2.52b for proposed instruction limiting consciousness of guilt to the applicable charge.)

See also, FORECITE F 2.03b, FORECITE F 2.04a, FORECITE F 2.05a, FORECITE F 2.15a, and FORECITE F 2.52c.

F 2.06b

Suppression Of Evidence By The Police Or Prosecution

*Add to CJ 2.06:

If you find that the police [__________] [insert other appropriate agency, e.g., D.A.’s investigator] willfully suppressed __________ [insert evidence suppressed], you may draw an inference that there was something damaging to the prosecution’s case in the __________.

Such an inference may be regarded by you as reflecting the prosecution’s recognition of the strength of the defendant’s case generally and/or the weakness of its own case.

Points and Authorities

When the police have succeeded in suppressing evidence, the defense should be entitled to an appropriate instruction. EC 413 authorizes the trier of fact to consider a party’s “willful suppression of evidence.” (See BAJI 2.03.) Furthermore, suppression of evidence is a destruction of evidence which implicates 14th Amendment federal due process principles. (E.g., Banks v. Dretke (2004) 540 US 668 [157 LEd2d 1166; 124 SCt 1256] [prosecution failed to disclose the informant’s status and did not correct the informant’s false testimony]; Arizona v. Youngblood (88) 488 US 51, 57-58 [102 LEd2d 281]; Kyles v. Whitley (95) 514 US 419 [131 LEd2d 490; 115 SCt 1555]; In re Brown (98) 17 C4th 873 [72 CR2d 698] [responsibility for a violation of Brady v. Maryland (63) 373 US 83 [10 LEd2d 215; 83 SCt 1194] rests exclusively with the prosecution, including the duty to learn of any favorable evidence known to others acting on the government’s behalf such as law enforcement persons working on the case]; see also U.S. v. LaPage (9th Cir. 2000) 231 F3d 488, 492 [failing to correct known perjured testimony is the same as eliciting it and requires reversal]; see also Commonwealth of the Northern Mariana Islands v. Bowie (9th Cir. 2001) 243 F3d 1109, 1122-24 [prosecutor had duty to investigate possibility that codefendant testified falsely to receive leniency].)

The United States Supreme court has underscored the ‘special role played by the American prosecutor in the search for truth in criminal trials.’ (Banks v. Dretke (2004) 540 US 668 [157 LEd2d 1166, 1193; 124 SCt 1256] 2004 U.S. LEXIS 1621 [when police or prosecutors conceal significant exculpatory or impeaching material in the State’s possession, it is ordinarily incumbent on the State to set the record straight; prosecutors are responsible for any favorable evidence known to others acting on the government’s behalf in the case, including the police; prosecution’s deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with rudimentary demands of justice]; Strickler v. Greene (99) 527 US 263 at 281 [144 LEd2d 286; 119 SCt 1936]; accord, Kyles v. Whitley (95) 514 US 419 at 439-440 [131 LEd2d 490; 115 SCt 1555]; United States v. Bagley (85) 473 US 667, 675, n. 6 [87 LEd2d 481; 105 SCt 3375]; Berger v. United States (35) 295 US 78 at 88 [79 LEd 1314; 55 SCt 629}; see also Olmstead v. United States (28) 277 US 438, 484 [72 LEd 944; 48 SCt 564] (Brandeis, J., dissenting).) Courts, litigants, and juries properly anticipate that “obligations [to refrain from improper methods to secure a conviction] . . . plainly resting upon the prosecuting attorney, will be faithfully observed.” (Berger, 295 US 78 at 88 [79 LEd 1314; 55 SCt 629]; see also Banks, 124 SCt at 1274.)

The above instruction is adapted from an instruction in Bihun v. AT&T (93) 13 CA4th 976, 992 [16 CR2d 787], which was held to be a correct statement of the law. (Id. at 994; see also, Donchin v. Guerrero (95) 34 CA4th 1832 [41 CR2d 192] [jury may draw inferences from “consciousness of guilt” evidence in all types of cases against all parties, not just in criminal cases against defendants]; Deerings EC 413 “Suggested Forms.”) In Bihun, the court observed that “spoliation” of evidence by a party entitles the other party to an instruction that “the adversary’s conduct may be considered as tending to corroborate the proponent’s case generally, and as tending to discredit the adversary’s case generally.” [Internal quote marks and emphasis omitted.] Surely if all civil litigants may obtain instruction upon suppression of evidence (see BAJI 2.03) and if the prosecution may obtain such an instruction when the defendant has suppressed evidence (CJ 2.06), it is only fair that the defendant in a criminal trial should be permitted to obtain such an instruction upon request when the prosecution or its agents have suppressed evidence. “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 [39 LEd 709; 15 SCt 610]; see alsoDonchin v. Guerrero (95) 34 CA4th 1832 [41 CR2d 192].) Donchin underscores the fact that a jury may draw inferences from “consciousness of guilt” evidence in all types of cases against all parties, not just in criminal cases against defendants. Hence, a jury should be able to draw inferences from “consciousness of guilt” evidence against police officers or the prosecution when there is evidence that they have lied or destroyed evidence. And in a like manner, a defendant should be entitled to a jury instruction on the issue when there is substantial evidence to support it.

(See also FORECITE F 2.06c [Attempted Suppression Of Evidence Or Witness Intimidation By The Police Or Prosecution].)

NOTES

[Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-592.]

F 2.06c

Attempted Suppression Of Evidence

Or Witness Intimidation By The Police Or Prosecution

*Add to CJ 2.06:

If you find that the police [__________] [insert other appropriate agency, e.g., D.A.’s investigator] attempted to suppress evidence in any manner, you may draw an adverse inference to the prosecution. Such an adverse inference may be sufficient by itself to leave you with a reasonable doubt as to defendant’s guilt.

Points and Authorities

When the police have intimidated a witness or otherwise attempted to suppress evidence, the defense should be entitled to an appropriate instruction. EC 413 authorizes the trier of fact to consider a party’s “willful suppression of evidence.” (See also BAJI 2.03.) And, willful suppression clearly includes witness intimidation. (See CJ 2.06.) Furthermore, suppression of evidence or witness intimidation by the police is an attempted destruction of evidence which implicates 14th Amendment federal due process principles. (E.g., Arizona v. Youngblood (88) 488 US 51, 57-58 [102 LEd2d 281; 109 SCt 333].) Such a willful attempt to destroy evidence should authorize an instruction allowing the jury to draw an inference adverse to the prosecution. (See e.g., People v. Wimberly (92) 5 CA4th 773, 793 [7 CR2d 152]; see also Deerings EC 413 “Suggested Forms.”)

In light of the prosecution’s burden of proof, the adverse inference is sufficient by itself to leave the jury with a reasonable doubt as to guilt. (See People v. Wimberly, supra, 5 CA4th 773 at 793.) The “standing alone” language was taken from CJ 2.40.

NOTES

[Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-592.] (See also FORECITE F 2.60b for additional Points and Authorities.)

F 2.06d

Suppression Of Evidence By Third Party

*Modify CJ 2.06 as follows [added language is capitalized; deleted language is between <<>>]:

If you find that __________ [name of third party] attempted to suppress evidence against [himself] [herself] in any manner, such as [by the intimidation of a witness] [by an offer to compensate a witness] [by destroying evidence] [by concealing evidence] [by __________], such attempt may be considered by you as a circumstance tending to show a consciousness of guilt on the part of __________. <<However,>> Such conduct <<is not>> MAY BE sufficient by itself to <<prove guilt, and>> LEAVE YOU WITH A REASONABLE DOUBT AS TO THE DEFENDANT’S GUILT. HOWEVER, its weight and significance, if any, are matters for your consideration.

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 FORECITE F 4.020.) 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). (See FORECITE PG VII(C).)

(See FORECITE F 2.03d.)

NOTES

[Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-592.]

F 2.06e

Suppression of Evidence Must Relate To Charged Crime

*Add to CJ 2.06:

If you conclude that the defendant suppressed evidence, you may not consider it for any purpose unless you first determine that it demonstrates 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].) 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.; cf., People v. Mendoza (2000) 24 C4th 130, 180 [99 CR2d 485] [“It is for the jury to determine to which offense, if any, the inference of [consciousness of guilt] should apply”]; People v. Navarette (2003) 30 C4th 458 [133 CR2d 89] [same].)

NOTES

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

F 2.06f

Efforts By Others Than Defendant To Suppress Evidence

*Add to CJ 2.06:

If you find that an effort to suppress evidence was made by another person for the defendant’s benefit, you may not consider that effort as tending to show the defendant’s consciousness of guilt unless you also find that the defendant authorized such effort. If you find defendant authorized that effort, such conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are matters for your consideration.

Points and Authorities

CJ 2.05, in reliance upon People v. Caruso (59) 174 CA2d 624, 640-41 [345 P2d 282] and People v. Perez (59) 169 CA2d 473, 477-78 [337 P2d 539], cautions the jury that efforts by persons other than the defendant to fabricateevidence may not be considered against the defendant unless the defendant authorized the effort. However, both Caruso and Perez also apply to efforts by a third party to suppress evidence (Caruso 174 CA2d at 640; Perez 169 CA2d at 477; see also People v. Williams (97) 16 C4th 153, 200-201 [66 CR2d 123] [defendant must authorize attempt by third person to suppress testimony; “mere opportunity” to authorize a third person to attempt to influence a witness “has no value as circumstantial evidence” that the defendant did so].)

Hence, an instruction patterned after CJ 2.05, which requires a finding that the defendant authorized any suppression of evidence by a third party, should be given when appropriate.

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 N§ 15) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process.

F 2.06g Suppression Of Evidence Must Relate to Charged Crime.

(See FORECITE F 2.06e.)

F 2.06h

Suppression Evidence Must Be Willful

*Modify CJ 2.06 as follows [added language is capitalized]:

If you find that a defendant WILLFULLY attempted to suppress evidence against [himself] [herself] in any manner, such as [by the intimidation of a witness] [by an offer to compensate a witness] [by destroying evidence] [by concealing evidence] [by __________], such attempt may be considered by you as a circumstance tending to show a consciousness of guilt. However, such conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are matters for your consideration.

Points and Authorities

The Use Note to CJ 2.06 relies upon EC 413 which states that the trier of fact may consider a “willful” suppression of evidence in determining what inferences to draw from the evidence or facts of the case. Therefore, CJ 2.06 should be modified to reflect the language contained in EC 413. (See also CJ 2.03 which requires that false statements be made “willfully” to raise a consciousness of guilt.)

F 2.06i

Multiple Forms Of Consciousness Of Guilt Not Alone

Sufficient To Convict

*Modify last sentence of CJ 2.06 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

(See FORECITE F 2.03g.)