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F 2.25 n1 Appellate Issue Alert: Pre-1997 Version.
The pre-1997 version of CJ 2.25 failed to preclude consideration of exercise of a constitutional privilege on matters other than guilt or innocence such as enhancement or special circumstance degree. (See CALJIC History CJ 2.25.)
F 2.25a
Cautionary Instruction When Witness
Exercises Privilege Outside Of The Presence Of The Jury
*To be given in place of CJ 2.25:
__________ [insert name of witness] was unavailable to testify for either the defense or the prosecution. You must not draw from this unavailability any inference as to whether or not the evidence proves the defendant guilty beyond a reasonable doubt.
Points and Authorities
This instruction is analogous to a pinpoint instruction because it relates the absence of certain evidence to the defendant’s theory that no adverse inference should be drawn therefrom. (See People v. Adrian (82) 135 CA3d 335, 338-39 [185 CR 506].) A proper pinpoint instruction should be given upon request. (People v. Brady (87) 190 CA3d 124, 135 [235 CR 248].) Therefore, the above instruction should be given when requested. (See Bowles v. U.S.(D.C. Cir. 1970) 439 F2d 536, 542, fn 6 [observing that it would be error to refuse a request for such an instruction].)
Moreover, by seeking to assure that the jurors fairly evaluate the credibility of the prosecution witnesses this proposed instruction protects the defendant’s federal constitutional rights to trial by jury and due process (6th and 14th Amendments). [See generally, FORECITE PG VII “Federalizing the Request.”]
NOTES
There may be a tactical reason not to request the above instruction as illustrated by the following passage from Bowles 439 F2d at 542, fn 6:
“Had either counsel requested the court to instruct the jury that they should draw no inference from Smith’s absence because he was unavailable to either side, it would have been error to refuse this instruction. Appellant’s trial counsel did not request such an instruction. There are meaningful tactical reasons why a defense counsel might elect not to seek such an instruction.”
“Defense trial counsel might well conclude that while a jury would readily understand for itself that defendant couldn’t be expected to produce as a witness a man (Smith) who would testify that he had killed the deceased, it might have expected — in terms of inquiring whether there was a reasonable doubt of guilt, — that the Government would have called Smith to testify that he had not killed the deceased. The possibility for arousal of a reasonable doubt in the minds of the jurors would have been removed by a neutralizing instruction from the court.” (Bowles 439 F2d at 542, fn 6.)
F 2.25b
When Witness Seeks To Conceal Falsity Of Prior Testimony
*Add to CJ 2.25:
Witness __________ refused to testify relying on [his] [her] constitutional privilege against self-incrimination. [He] [She] did so because [his] [her] testimony would have shown [his] [her] prior testimony to be false thus exposing [him] [her] to a charge of perjury. You may rely on the witness’ failure to testify to draw all appropriate inferences regarding the matters at issue in this trial including whether the evidence proves defendant guilty beyond a reasonable doubt.
Points and Authorities
CJ 2.25 informs the jury that when a witness refuses to testify based upon assertion of his Fifth Amendment privilege against self-incrimination, the jury must not draw any inference from the exercise of the privilege as to the believability of the witness or the guilt or innocence of the defendant.
While this instruction is appropriate in the ordinary circumstances where the witness fears his own potential prosecution and therefore refuses to testify, “it is entirely unwarranted” when the witness refuses to testify because his testimony would show his prior testimony to have been untruthful. (People v. Garner (89) 207 CA3d 935, 938 [255 CR 257].)
In Garner, the witness refused to respond to questioning at trial upon the express averment that to do so would reveal the falsity of his earlier testimony at the preliminary hearing — which implicated the defendant — and would thus subject the witness to prosecution for perjury. Under such circumstances, the jury should be allowed to draw an unfavorable inference regarding the witness’ credibility based upon his assertion of the Fifth Amendment privilege. (Garner 204 CA3d at 935.)
Furthermore, “where the witness’ earlier avowedly false testimony provides a basis for determining the accused’s guilt, the jury ought properly to be instructed that it should, rather than it should not, draw all appropriate inferences regarding the defendant’s actual guilt or innocence from the witness’ refusal to speak.” (Id. at 939.)
Accordingly, under such circumstances CJ 2.25 should be modified to allow the jury to draw whatever inferences it deems appropriate from the witness’ exercise of the privilege. (But see People v. Simmerman DEPUBLISHED (90) 226 CA3d 106 [276 CR 248], disagreeing with Garner and — in reliance upon EC 913 — concluding that CJ 2.25 may be properly given under all circumstances.)
Such a modification is necessary to assure that the prosecution’s burden is not unfairly lessened and to protect defendants federal (6th and 14th Amendments) constitutional rights to trial by jury and due process.
RESEARCH NOTES
See Annotation, Inferences arising from refusal of witness other than accused to answer question on the ground that answer would tend to incriminate him, 24 ALR2d 895 and Later Case Service.
F 2.25c
Exercise Of Privilege Against Self-Incrimination:
Guilt vs. Innocence
SUBSEQUENT HISTORY: CJ Instruction Modified To Comport With FORECITE. In the CALJIC 6th Edition, CJ 2.25 was amended to adopt FORECITE’s recommendation that the term “innocent” be replaced with “not guilty.”
*Modify CJ 2.25 as follows [added language is capitalized; deleted language is between <<>>]:
When a witness refuses to testify to any matter, relying on the constitutional privilege against self-incrimination, you must not draw from the exercise of such privilege any inference as to the believability of the witness or as to <<the guilt or innocence of the defendant>> WHETHER OR NOT THE EVIDENCE PROVES THE DEFENDANT’S GUILT BEYOND A REASONABLE DOUBT.
Points and Authorities
One of the most fundamental principles of criminal law is the prosecution’s burden to prove the defendant guilty beyond a reasonable doubt. (See Mullaney v. Wilbur (75) 421 US 684, 684-85 [44 LEd2d 508].) And, an essential rule which emanates from this burden is that the defendant need not prove his or her innocence, but need only leave the jury with a reasonable doubt as to guilt. (See People v. Hall (80) 28 C3d 143, 159 [167 CR 844]; see also People v. Adrian (82) 135 CA3d 335, 342 [185 CR 506]; FORECITE F 17.50b.) Hence, jury instructions which suggest that the jury must decide between guilt or innocence implicate the defendant’s state (Art. I § 15) and federal (6th and 14th Amendments) constitutional rights to due process and trial by jury. (See also Bugliosi, “Not Guilty and Innocent — The Problem Children Of Reasonable Doubt“, 4 Crim. Justice J. 349 (1981).)
Indeed the CALJIC committee appears to have recognized this problem in their 1990 revision of CJ 17.47 which deleted the “guilt or innocence” language of the former instruction. (See also CJ 16.835, lines 10-11.)
Accordingly, CJ 2.25 should also be revised.
RESEARCH NOTES: See Annotation, Inferences arising from refusal of witness other than accused to answer question on the ground that answer would tend to incriminate him, 24 ALR2d 895 and Later Case Service.
F 2.25d
Exercise Of Privilege: No Presumption As To Any Matter At Issue
*Modify CJ 2.25 as follows [added language is capitalized; deleted language is between <<>>]:
When a witness refuses to testify to any matter, relying on the constitutional privilege against self-incrimination, <<you>> NO PRESUMPTION ARISES BECAUSE OF THE EXERCISE OF THE PRIVILEGE. YOU must not draw from the exercise of such privilege any inference as to the <<believability>> CREDIBILITY of the witness or as to <<the guilt or innocence of the defendant>> ANY OTHER MATTER AT ISSUE IN THIS TRIAL INCLUDING WHETHER OR NOT THE EVIDENCE PROVES THE DEFENDANT GUILTY BEYOND A REASONABLE DOUBT.
Points and Authorities:
EC 913(b) requires that the jury be instructed, upon request, that “no presumption arises because of the exercise of the privilege and that the jury may not draw any inference therefrom as to the credibility of the witness or as toany matter at issue in the proceeding.” [Emphasis added.]
The above instruction modifies CJ 2.25 to fully comply with the above statutory requirement.
F 2.25e
Exercise Of Privilege: Compliance With Legislative Intent
*Modify CJ 2.25 as follows [added language is capitalized; deleted language is between <<>>] :
When a witness refuses to testify to any matter, relying on the constitutional privilege against self-incrimination, <<you must not draw from that fact any inference as to the credibility of the witness or as to the guilt or innocence of the defendant>> SUCH REFUSAL IS NOT EVIDENCE AND SHOULD NOT BE CONSIDERED FOR ANY PURPOSE.
Points and Authorities
EC 913(b) requires that the jury be instructed, upon request, that “no presumption arises because of the exercise of the privilege and that the jury may not draw any inference therefrom as to the credibility of the witness or as to any matter at issue in the proceeding.” The obvious intent of this language is that the exercise of the privilege should not be considered by the jury for any purpose.
The above instruction modifies and simplifies CJ 2.25 to more effectively convey the intent of EC 913.
