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F 2.11a
Production of All Evidence Not Required:
Modification When The Prosecution Deprives The Defense Of Evidence
*Add to CJ 2.11:
The prosecution has introduced evidence of the results of scientific testing of a __________ [e.g., blood] sample in this case. That __________ sample was entirely consumed by that scientific testing. There was nothing improper about the fact that the sample was entirely consumed in this testing, but this fact does mean that the defendant did not have the opportunity to have separate and independent testing of a portion of the sample accomplished in order to determine whether such independent testing would yield the same result or a different result. You are entitled to consider this lack of opportunity for independent testing by the defendant in deciding how much weight, if any, to give to the evidence introduced by the prosecution.
Points and Authorities
CJ 2.11 fails to cover the situation where the defense has been deprived of evidence by the prosecution. When the prosecution is allowed to present expert testimony concerning evidence which was lost or destroyed, fundamental fairness and due process principles (Federal Constitution, 14th Amendment) should allow the defense to inform the jury that they had no opportunity to independently test the material. (See generally EC 412; see also FORECITE F 2.03e, FORECITE F 2.04d, FORECITE F 2.06b and FORECITE F 2.014a for additional instructions for use when the prosecution has negligently or wrongfully destroyed or lost evidence.)
(See also FORECITE F 2.92j and F 2.014 n2.)
RESEARCH NOTES: See Annotation, Consumption or destruction of physical evidence due to testing or analysis by prosecution’s expert as warranting suppression of evidence or dismissal of case against accused in state court, 40 ALR4th 594 and Later Case Service; see also FORECITE BIBLIO 2.11.
F 2.11b
Inference From Fact That Witness Not Called
*Add to CJ 2.11:
You will remember that __________ [name of witness, e.g., defendant] said that __________ [name of missing witness] was __________ [e.g., present when the crime is supposed to have been committed]. __________ [name of missing witness] was also described as being __________ [well known to] to the [prosecution] [defendant]. This may have caused you to wonder why __________ was not called as a witness to answer questions in this trial. If you believe that the testimony of __________ would have been important, and if you also believe that the [prosecution] [defendant] could have brought [him] [her] to court to testify in this trial, then you may consider [its] [his] [her] failure to do so when you decide whether the prosecution has proved, beyond a reasonable doubt, that the defendant committed the crime. In other words, you may conclude that the [prosecution] [defense] did not call __________ as a witness because [his] [her] testimony would have hurt the [prosecution] [defense] case.
Points and Authorities
Fed. Jud. Ctr., Pattern Crim. Jury Instructions (1988), Inst. # 39, p. 49.; see also, Deerings EC 412, “Suggested Forms,” p. 171, which provides the following instruction: “If a party has it peculiarly within his power to produce a witness whose testimony would be material on any matter in issue, the fact that he does not creates the presumption that the testimony, if produced, would be unfavorable to that party.” (See also U.S. v. Nichols (2nd Cir. 1990) 912 F2d 598, 601 [if witness is equally available to both parties, instruction may permit unfavorable inference against either party].)
NOTES
This type of instruction should not be used against the defendant who offers no evidence in his or her defense. The jury is consistently instructed that the burden is on the prosecution and the defendant is under no obligation to prove innocence (e.g., CJ 2.90). The use of the instruction in this situation would severely undercut this principle. (See also CJ 2.61.)
See Fed. Jud. Ctr., Pattern Jury Instructions (1988) Comment to Instruction # 39, p. 49.
F 2.11c
Weaker Or Less Satisfactory Evidence
*Add to CJ 2.11:
If a party offers weaker or less satisfactory evidence when stronger and more satisfactory evidence could have been produced at trial, you may, but are not required to consider this fact in your deliberations.
[You must remember, however, that the defendant is not obligated to produce any evidence or to call any witnesses.]
Points and Authorities
EC 412. The above instruction is taken from Devitt, et al., Fed. Jury Prac. & Inst. (1992) § 14.14. (See also BAJI 2.02 and Deerings EC 412 “Suggested Forms.”)
While cautioning against the use of this instruction in criminal cases except in rare cases (see People v. Romero (66) 244 CA2d 495, 504 [53 CR 60]), the cases nevertheless recognize that PC 412 applies “when it can be shown that a party is in fact in possession or has access to better and stronger evidence than was presented”. (See People v. Von Villas (92) 10 CA4th 201, 245 [13 CR2d 62]; People v. Taylor (77) 67 CA3d 403, 412 [136 CR 640].) Moreover, such an instruction may properly be given when the evidence indicates a willful suppression of evidence. (See People v. Von Villas (92) 10 CA4th 201, 245 [13 CR2d 62]; see also People v. Williams (57) 155 CA2d 328, 331 [318 P2d 106].)
NOTES
“Knowledge” Requirement: Defendant Permitted To Comment on Lack of Fingerprint Evidence.
[See FORECITE F 1.24 n6.]
F 2.11d
Production of All Evidence: Availability Of Witness To Prosecution
*Add to CJ 2.11:
ALTERNATIVE #1:
If the prosecution has it peculiarly within its power to produce a witness whose testimony would be material on any matter in issue, the fact that [he] [she] does not creates the presumption that the testimony, if produced, would be unfavorable to the prosecution.
ALTERNATIVE #2:
If a party has it peculiarly within his power to produce a witness whose testimony would be material on any matter in issue, the fact that he does not creates the presumption that the testimony, if produced, would be unfavorable to that party.
Points and Authorities
The proposed instruction is an adaption of the “Suggested Form” appearing in Deering’s EC 412; see also, BAJI 2.02 “Failure To Produce Available Stronger Evidence” and FORECITE F 2.014a; cf., People v. Harrison (2005) 35 C4th 208 [declining to decide whether instruction # 2 above is “consistent with Evidence Code section 412”].
Additionally, the defense should be “allowed to argue that the government’s failure to produce relevant evidence within its control gives rise to an inference that the evidence would be unfavorable to it [Citations].” (U.S. v. Tory (9th Cir. 1995) 52 F3d 207, 211.) Hence, at a minimum, counsel should be able to so argue to the jury. (See FORECITE PG I(F) CAVEAT III discussing counsel’s right to argue correct statements of the law to the jury.
CAVEAT: This alternate instructions should only be used where the evidence makes it impossible that it could be used against the defense.
F 2.11e
Failure Of Prosecution To Have Informant Witness Available
*Add to CJ 2.11:
The prosecution failed to have the witness __________ [name or description] available due to the failure of the police agencies to exercise due diligence in ascertaining the identity and address of the witness [maintaining contact with the witness] during the course of their investigation.
Because of this failure, you must presume that the testimony of the witness, if [he] [she] were available, would be favorable to the defendant.
Points and Authorities
It is well settled that the confrontation clause of the Federal constitution (6th and 14th amendments) requires the prosecution to exercise good faith and due diligence in obtaining and maintaining contact with confidential informants. (See Twiggs v. Superior Court (83) 34 C3d 360, 365 [194 CR 152]; Eleazer v. Superior Court (70) 1 C3d 847, 851 [83 CR 586]; cf., Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354] [recognizing importance of 6th Amendment right to confrontation].)
The above instruction is from Deerings EC 413, “Suggested Forms” for use in such a case. (See also FORECITE F 2.014a.)
RESEARCH NOTES
See Annotation, Adverse presumption or inference based on state’s failure to produce or examine informant in criminal prosecution — modern cases, 80 ALR4th 547 and Later Case Service.
