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F 2.52 n1 Improper Flight Instruction May Violate Federal Constitution.
If the jury is permitted to find a consciousness of guilt without making the requisite preliminary factual findings the prosecution’s burden is lessened and there is a danger of jury reliance upon an irrational or unjustified inference in violation of the defendant’s 6th and 14th Amendments federal constitutional right to trial by jury and due process. [See FORECITE PG VII.]
F 2.52 n2 Knowledge of Accusation As Prerequisite To Flight Instruction.
At common law the jury could not be instructed upon flight unless there was evidence that before the defendant fled, he or she knew that he/she had been accused of the crime. (People v. Hill (67) 67 CA2d 105, 120-21 [60 CR 234].) However, PC 1127c eliminated this common law requirement and permits instruction upon flight whenever evidence of flight is relied on to show guilt. (People v. Pensinger (91) 52 C3d 1210, 1243 [278 CR 640].)
Despite PC 1127c it may be argued that unless a defendant has knowledge of both the fact that the crime was committed and that he/she may be accused of that crime then any inference of guilt from flight would be irrational in violation of federal due process. (14th Amendment; County Court of Ulster County v. Allen (79) 442 US 140, 157, 165 [60 LEd2d 777; 99 SCt 2213]. See also FORECITE PG VII (C)(9).) Although this argument was rejected in Pensinger, 52 C3d at 1243-44, it may still be viable in federal court.
Moreover, even if due process does not require knowledge when the defendant immediately flees the scene of a crime, at a minimum, knowledge should be required when consciousness of guilt is alleged based upon subsequent flight, such as a failure to make a court appearance. Pensinger specifically acknowledged this distinction and limited its holding to a situation where “a person flees immediately after a crime to avoid detection…” (Pensinger, 52 C3d at 1244; see also U.S. v. Hernandez-Miranda (9th Cir. 1979) 601 F2d 1104, 1106-07 [relevancy of non-immediate flight depends on whether the defendant “knew about the charges against him”].)
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).)
NOTE: Negation of knowledge by intoxication, mental impairment, etc.: To the extent that knowledge is a necessary component of the relevance of flight evidence, it is logical that factors such as intoxication, mental impairment and the like which may negate knowledge should be considered by the jury in determining whether the defendant’s knowledge was sufficient to create an inference of consciousness of guilt from flight. (See FORECITE F 1.20b, F 1.21 n1, F 1.24 n1, F 2.15e, F 3.32c, F 4.21d, and F 4.21 n11.)
F 2.52 n3 Flight Instruction Improper Where No Intent To Avoid Observation Or Arrest.
The current use note for CJ 2.52 states that where evidence of flight is relied upon as tending to show guilt, CJ 2.52 must be given sua sponte as required by PC 1127c. However, in People v. Crandell (88) 46 C3d 833, 869-70 [251 CR 227], the Supreme Court concluded that flight “manifestly” requires “a purpose to avoid being observed or arrested.” (Id. at 869.) Hence, it is error to give the instruction if there is no evidence that the purpose (i.e., intent) of the defendant’s flight was to avoid being observed or arrested. (See also People v. Jackson (96) 13 C4th 1164, 1226 [56 CR2d 49] [implying that the mere fact that the defendant drove back home with his sole source of transportation was not evidence of flight, but holding that running from the murder scene was sufficient to justify the instruction].)
Moreover, even if the jury could conclude from the evidence that the defendant sought to avoid observation or arrest, the defendant still has a right to an instruction informing the jury that they must find this preliminary fact before they may consider the flight evidence. (See FORECITE F 2.52a — Flight: Required Preliminary Facts.)
F 2.52 n4 Improper Factual Basis For Flight Should Be Stricken.
CJ 2.52 provides two potential factual bases for a finding of consciousness of guilt:
1. Flight immediately after commission of the crime.
2. Flight after being accused of a crime.
When the evidence supports only one factual basis reference to the other should be deleted from the instruction. (People v. Carrera (89) 49 C3d 291, 314 [261 CR 348].)
Because the inclusion of irrelevant language in an instruction implicates the trial court’s duty to give only correct and pertinent instructions responsive to the evidence, deletion of the irrelevant basis for flight is required sua sponte. (See People v. Lang (89) 49 C3d 991, 1025 [264 CR 386].)
[Additional briefing and an unpublished opinion on this issue is available to FORECITE subscribers, see Brief Bank # B-701 and ask for Opinion Bank # O-216.]
F 2.52 n5 Applicability Of Flight Instruction To Escape Charge.
In a prosecution for escape (PC 4532,) limitation of the flight instruction may be necessary because flight is an element of the escape charge. Hence, there is a danger that the jury, by use of the flight instruction, may improperly convict the defendant on the escape charge without finding all necessary elements of that charge.
In other words, the flight instruction invites the jury to presume that the defendant was guilty of escape simply by the fact that he or she fled. Such a presumption would be especially improper in a situation where the defendant was relying upon a defense of duress. [See Brief Bank # B-701 for additional briefing and an unpublished opinion on this issue.]
F 2.52 n6 Prejudicial Impact Of Erroneous Instruction On Flight.
[Additional briefing regarding prejudicial error based on instructing on flight over defense objection is available to FORECITE subscribers. Ask for Brief Bank # B-739.]
F 2.52 n7 Defendant Should Be Able To Waive Giving Of Flight Instruction Since Its Purpose Is To Protect The Defendant.
People v. Han (2000) 78 CA4th 797, 807 [93 CR2d 139] held that “the purpose of the flight instruction is to protect the defendant from the jury simply assuming guilt from flight.” (Id. at 807.) (See CC 3513 [party may waive right that exists for the party’s benefit]; Cowan v. Superior Court (96) 14 C4th 367, 371 [58 CR2d 458]; People v. Robertson (89) 48 C3d 18, 61 [255 CR 631]; see also FORECITE F 2.15 n9 and F 2.03 n9.) Hence, even though CJ 2.52 is required by PC 1127c, since it is required for the defendant’s benefit it should not be given if the defendant waives it. The party who benefits from a cautionary or limiting instruction may object to the instruction for tactical reasons. (See also FORECITE PG VI(C)(1.1).)
F 2.52 n8 Flight: Instruction As Impermissible Inference.
(See generally FORECITE PG VII(C)(9); but see People v. Mendoza (2000) 24 C4th 130, 179-80 [99 CR2d 485] [rejecting due process/impermissible inference argument].)
F 2.52 n9 Challenge To Other Consciousness Of Guilt And Other Permissive Inference Instructions As Duplicative Of Circumstantial Evidence Instruction.
For a potential challenge to CJ 2.52 on the basis that it is merely a restatement of the general circumstantial evidence instruction, see FORECITE PG VII(C)(9.1).
F 2.52 n10 Consciousness Of Guilt As Improper Comment On The Evidence.
“When instructing the jury, a trial judge may not single out and give undue emphasis to particular evidence, even though the instruction states the correct principle of law.” (State v. Cathey (KS 1987) 741 P2d 738, 749; see alsoPeople v. Carter (2003) 30 C4th 1166, 1225 [an instruction is “argumentative” if “it invite[s] the jury to draw inferences favorable to only one party from the evidence presented at trial. . .”]; People v. Harris (89) 47 C3d 1047, 1098, fn 31 [255 CR 352]; People v. Wright (88) 45 C3d 1126, 1135 [248 CR 600] [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”].)
Logically this principle should preclude instruction on consciousness of guilt which singles out particular evidence. (See e.g., Renner v. State (GA 1990) 397 SE2d 683, 685 [reversible error to instruct the jury on flight]; see alsoState v. Cathey, 741 P2d at 749 [“[s]uch an instruction singles out and particularly emphasizes the weight to be given to that evidence by the jury”]; State v. Menard (SD 1988) 424 NW2d 382, 384 [“…we caution that this instruction, as well as others which appear to be a commentary on the evidence, should be used sparingly and only when the special circumstances and evidence require”]; State v. Reed (WA 1979) 604 P2d 1330, 1333 [flight: no instruction should be given]; WASHINGTON PATTERN JURY INSTRUCTIONS – CRIMINAL, WPIC 6.21 [Evidence Of Flight] (West, 2nd ed. 1994).) For example, in the case of flight, “instruction on the subject gives undue weight to a particular piece of evidence which should be avoided.” (7TH CIRCUIT FEDERAL JURY INSTRUCTIONS – CRIMINAL 3.20 [Flight] (1999).) For discussion of the dangers of giving a flight instruction, see U.S. v. Williams (7th Cir. 1994) 33 F3d 876, 879;U.S. v. Levine (7th Cir. 1993) 5 F3d 1100, 1107; U.S. v. Jackson (7th Cir. 1978) 572 F2d 636, 639-40; see also 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS – CRIMINAL 3.22 [False Exculpatory Statements] Committee comment (1999) [false exculpatory statements may “be viewed by the jury as judge’s comments on the evidence”].
This view has been expressed by the United States Supreme Court. (See Alberty v. U.S. (1896) 162 US 499, 511 [16 SCt 864; 40 LEd 1051] [murder conviction reversed because the trial court’s jury instruction overly emphasized the significance of the defendant’s flight].) And again, in Wong Sun v. U.S. (63) 371 US 471 [83 SCt 407; 9 LEd2d 441] the court stated that “[a]lthough the question presented here is only whether the petitioner’s flight justified an inference of guilt sufficient to generate probable cause for his arrest, and not whether his flight would serve to corroborate proof of his guilt at trial, the two questions are inescapably related. Thus it is relevant to the present case that we have consistently doubted the probative value in criminal trials of evidence that the accused fled the scene of an actual or supposed crime.” (Wong Sun v. U.S., 371 US at 484.)
However, while the propriety of consciousness of guilt instructions is subject to debate (see e.g., U.S. v. McQuarry (8th Cir. 1984) 726 F2d 401, 402 (McMillian, J., concurring)), many jurisdictions squarely hold that the instructions may be given when warranted by the evidence. (See U.S. v. Clark (8th Cir. 1995) 45 F3d 1247, 1250 [false exculpatory statement, flight]; U.S. v. Penn (8th Cir. 1992) 974 F2d 1026, 1029 [false exculpatory statement]; U.S. v. Roy(8th Cir. 1988) 843 F2d 305, 310-11 [flight].)
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].)
For example, the Wyoming Supreme Court recently held that the giving of a flight instruction is reversible error. This holding was based on the rationale that a flight instruction serves “no real purpose” (see Renner v. State (GA 1990) 397 SE2d 683) and focuses “on a single aspect of circumstantial evidence and may unduly emphasize that aspect.” (Hadden v. State (WY 2002) 42 P3d 495, 508 [citing 1 Josephine R. Potuto, Steven A. Saltzburg, Harvey A. Perlman, Federal Criminal Jury Instructions, Part One, Chapter 3: Closing Instructions § 3.51, FLIGHT AND RELATED EVIDENCE (2nd ed. with 1993 Supp.).)
See FORECITE F 2.03 n8.
F 2.52 n11 Instruction On Consciousness Of Guilt Inference Improper Without Supporting Evidence.
(See FORECITE PG VII(C)(7.1).)
F 2.52a
Flight: Required Preliminary Facts
See FORECITE F 372.1 Inst 2.
F 2.52b
Flight: Limitation When Not Applicable To All Charged Offenses
*To be added at end of CJ 2.52 when appropriate:
Evidence has been received that the defendant ______________ (insert flight evidence, e.g., departed from the scene of the crime). At the time it was admitted you were admonished that this evidence may only be considered, if at all, in deciding Count _____. You are again instructed that you must not, in any manner, consider this evidence as to Count _____.
Points and Authorities
A defendant may be tried on two or more counts and raise a defense of mistaken identity only as to a single charge. However, if there is evidence of flight on two or more counts, the jury might construe CJ 2.52 as standing for the principle that evidence of flight may be considered as to all counts notwithstanding the preliminary issue of identity. In such a case, the above clarification should be given. (See People v. London (88) 206 CA3d 896, 903-04 [254 CR 59] [CJ 2.52 should be modified in a proper case]; 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].)
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).)
F 2.52c
Flight: Inapplicable To Nature Or Degree Of Guilt
*Add to CJ 2.52:
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
See FORECITE F 2.06a; see also FORECITE F 2.15a.
F 2.52d
Flight: Limitation To Applicable Co-Defendant
*Add to CJ 2.52:
You are instructed that there is no evidence of flight applicable to __________ [insert name of defendant to whom flight evidence is inapplicable] and therefore you should not consider flight when determining whether or not [his] [her] guilt has been proven beyond a reasonable doubt. By so limiting this instruction, I have not intended to express any opinion upon the believability or probative value of any evidence of flight which may be applicable to the other defendant[s]. The probative value of such evidence, if any, is a matter solely for your determination.
Points and Authorities
When there is sufficient evidence of flight as to some defendants but not others the flight instruction should be limited accordingly. (People v. Pitts (90) 223 CA3d 606, 877-79 [273 CR 757]; People v. Mora (56) 139 CA2d 266, 274 [293 P2d 522].) Any such modification or limitation of the flight instruction should avoid the implication that the defendants to which the instruction applies actually fled. (Pitts 223 CA3d at 877.)
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.)
(See FORECITE F 2.52o.)
NOTES
If it is determined that the above instruction is insufficient to avoid prejudice, an alternative would be to inform the jury that the specific conduct of the defendant who did not flee (e.g., changing of residences) does not constitute flight. (Pitts 223 CA3d at 877.)
F 2.52e
Significance of Flight For Jury to Determine
*Replace last sentence of CJ 2.52 with the following:
Whether or not evidence of flight shows a consciousness of guilt, and the significance to be attached to such a circumstance, are matters for your determination.
Points and Authorities
While there is no sua sponte duty to give the above instruction (People v. Gutierrez (93) 14 CA4th 1425, 1439 [18 CR2d 371], it should be given if the evidence suggests reasons for flight other than consciousness of guilt. (People v. Guzman (75) 47 CA3d 380, 388 [121 CR 69]; People v. Hill (67) 67 C2d 105, 120 [60 CR 234].)
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 2.52f
Flight Must Relate to Charged Crime
*Add to CJ 2.52:
You may not consider the defendant’s flight for any purpose unless you first determine that the flight 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].)
In People v. Van Nguyen (93) 21 CA4th 518, 538 [26 CR2d 323], the court recognized that when the defendant flees from the scene of two alleged crimes (in that case robbery and accessory to a sex charge), flight does not necessarily establish a consciousness of guilt as to both offenses. (See also People v. Kipp (2001) 26 C4th 1100, 1126-27 [113 CR2d 27] [probative value of pretrial escape was diminished where defendant had existing death judgment].)
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.)
NOTES
[See Brief Bank # B-570 for additional briefing on this issue.]
RESEARCH NOTES: See Annotation, Admissibility of evidence that defendant escaped or attempted to escape while being detained for offense in addition to that or those presently being prosecuted, 3 ALR4th 1085 and Later Case Service.
F 2.52g
Flight After Crime: Guilt vs. Innocence
SUBSEQUENT HISTORY: CJ Instruction Modified To Comport With FORECITE. In the CALJIC 6th Edition, CJ 2.52 was amended to adopt FORECITE’s recommendation that the term “innocent” be replaced with “not guilty.”
*Modify CJ 2.52 to provide as follows [added language is capitalized; deleted language is between <<>>]:
The flight of a person immediately after the commission of a crime, or after [he] [she] is accused of a crime, is not sufficient in itself to establish [his] [her] guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding the question of <<[his] [her] guilt or innocence>> WHETHER OR NOT THE DEFENDANT’S GUILT HAS BEEN PROVEN BEYOND A REASONABLE DOUBT. The weight to which such circumstance is entitled is a matter for the jury to determine.
Points and Authorities
[See FORECITE F 1.00b]
Accordingly, CJ 2.52 should also be revised.
F 2.52h
Absence Of Flight
*Add the following to CJ 2.52 [Alternative ¶ 1 is patterned after CJ 2.52; Alternative ¶ 2 is patterned after CJ 2.51]:
The absence of flight of a person immediately after the commission of a crime, or after [he] [she] is accused of a crime, although the person had the opportunity to take flight, is a fact which may be considered by you in light of all other proven facts, in deciding whether or not the defendant’s guilt has been proven beyond a reasonable doubt. The weight to which such circumstances is entitled is a matter for the jury to determine.
OR
You may consider whether or not a person fled immediately after the commission of a crime, or after [he] [she] was accused of a crime as a circumstance in this case. The presence of flight may tend to establish a consciousness of guilt but this is not sufficient in itself to establish guilt. However, on the other hand, the absence of flight may tend to show that the defendant did not have a consciousness of guilt and this fact alone may be sufficient to create a reasonable doubt as to the defendant’s guilt. The weight and significance of these circumstances, if any, are matters for your determination.
Points and Authorities
It has been recognized that the trial court may, in its discretion, give “an appropriate instruction on the absence of flight when supported by the evidence and of sufficient relevance in the context of the case.” (People v. Williams (1997) 55 CA4th 648, 652; see also People v. Sears (1970) 2 CA3d 180, 189 [jury should be instructed on request that, inter alia, lack of furtiveness may be considered in determining the issue of premeditation/deliberation]; cf.People v. Staten (2000) 24 CA4th 434, 459 [citing Williams re: constitutional argument].) Moreover, such an instruction is also required under due process principles.
It has been held that the defendant has no right to a lack of flight instruction. (See People v. Green (1980) 27 CA3d 1, 38.) However, this holding is based upon PC 352 and did not consider the question of whether the failure to instruct on lack of flight creates an instructional imbalance in violation of the 14th Amendment due process principles discussed below. People v. Staten, supra, 24 CA4th at 459 summarily concluded that Green “forecloses” any due process challenge without consideration of the authorities and analysis discussed below. In light of the constitutional analysis set forth below, Green and Staten do not foreclose a lack of flight instruction. (See People v. Dillon (1983) 34 CA3d 441, 473-74 [cases are not authority for propositions not considered].)
In Wardius v. Oregon (73) 412 US 470, 473, fn 6 [37 LEd2d 82; 93 SCt 2208], the U.S. Supreme Court warned that, “state trial rules which provide nonreciprocal benefits to the State when the lack of reciprocity interferes with the defendant’s ability to secure a fair trial” violate the defendant’s due process rights under the Fourteenth Amendment. (See also, Washington v. Texas (67) 388 US 14, 22 [18 LEd2d 1019; 87 SCt 1920]; Gideon v. Wainwright (63) 372 US 335, 344 [9 LEd2d 799; 83 SCt 792]; Izazaga v. Superior Court (91) 54 C3d 356, 372-77 [285 CR 231]; Cf. Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69 Yale L.J. 1149, 1180-92 (1960).) Noting that the Due Process Clause “does speak to the balance of forces between the accused and his accuser,” Wardius held that “in the absence of a strong showing of state interests to the contrary” there “must be a two-way street” as between the prosecution and the defense. (Wardius 412 US at 474.)
The need for such evidentiary fairness was also summarized in the following commentary in Wigmore: “Let the accused’s whole conduct come in; and whether it tells for consciousness of guilt or consciousness of innocence, let us take it for what it is worth, remembering that in either case it is open to varying explanations and not to be emphasized. Let us not deprive an innocent person, falsely accused, of the inference which common sense draws from a consciousness of innocence and its natural manifestations.” (II Wigmore on Evidence, § 2, pg. 232 (J. Chadborn, rev. ed., 1979.)
Although Wardius involved reciprocal discovery rights, the same principle should apply to jury instructions. (See, People v. Moore (54) 43 C2d 517, 526-27 [275 P2d 485] [“There should be absolute impartiality as between the People and the defendant in the matter of instructions”]; accord, Reagan v. United States (1895) 157 US 301, 310 [39 LEd 709; 15 SCt 610].) Therefore, instructions which give an unfair advantage to the prosecution violate the “balance” required by Wardius and implicate the due process clause of the 14th Amendment. (But see People v. Williams (97) 55 CA4th 648, 652-53 [64 CR2d 203] [rejecting Wardius argument because flight and absence of flight “are not on similar logical or legal footings” and therefore instruction is not required sua sponte but may be given in trial court’s discretion].)
In the case of flight, a clear imbalance is created by allowing the prosecution to obtain a flight instruction and not allowing the defense to obtain a lack of flight instruction. The Green court holding was based upon the court’s conclusion that there are reasons why a guilty person may not flee. (27 C3d at 37.) However, the courts have long recognized that there are also reasons why an innocent person will flee:
“… [I]t is a matter of common knowledge that men who are entirely innocent do sometimes fly from the scene of a crime through fear of being apprehended as the guilty parties, or from an unwillingness to appear as witnesses. Nor is it true as an accepted axiom of criminal law that ‘the wicked flee when no man pursueth, but the righteous are as bold as a lion.’ Innocent men sometimes hesitate to confront a jury — not necessarily because they fear that the jury will not protect them, but because they do not wish their names to appear in connection with criminal acts, are humiliated at being obliged to incur the popular odium of an arrest and trial, or because they do not wish to be put to the annoyance or expense of defending themselves ….” (Alberty v. U.S. (1896) 162 US 499, 511 [40 LEd 1051; 16 SCt 864]; see also, (Hickory v. United States (1896) 160 US 408, 416-17 [40 LEd 474; 16 SCt 327] [innocent people “may resort to deception]; Austin v. United States (D.C. Cir. 1969) 414 F2d 1155, 1157 and cases cited therein; People v. Jenkins (79) 91 CA3d 579, 586 [154 CR 309].)
Hence, just as the jury may consider evidence of flight, notwithstanding the fact that innocent people may flee, so, too, should the jury consider evidence of lack of flight, notwithstanding the fact that guilty people may not flee. The logic of this analysis is illustrated by the Ninth Circuit’s decision in Standen v. Witley (9th Cir. 1993) 994 F2d 1417, 1425-26, where the court relied, in part, upon the defendant’s failure to flee or otherwise demonstrate a consciousness of guilt as evidence that the defendant was not guilty.
Similarly, U.S. v. Biaggi (2nd Cir. 1990) 909 F2d 662, 690 recognized the importance of consciousness of innocence evidence. [“When a defendant rejects an offer of immunity on the ground that he is unaware of any wrong doing about which he could testify, his action is probative of a state of mind devoid of guilty knowledge.”] (Id. at 690.) Accordingly, such evidence is relevant to show a “consciousness of innocence” and its exclusion would be especially unfair when the prosecution is allowed to present evidence of consciousness of guilt. (Id. at 692.)
In sum, there is no rational basis upon which to justify the current imbalance in the consciousness of guilt instructions which decidedly favors the prosecution. [Compare CJ 2.51 which instructs the jury upon the “presence” and “absence” of motive.] [Caveat: CJ 2.51 should be modified so as not to imply that the defendant must “establish innocence.” (See FORECITE F 2.52g).] The federal constitutional principles discussed above require that if the jury is instructed upon factors which suggest a consciousness of guilt, it must also be instructed upon factors which suggest a consciousness of innocence.
NOTES
The same reasoning set forth above is also applicable to other consciousness of guilt instructions. (See CJ 2.03, CJ 2.04, CJ 2.05, CJ 2.06, CJ 16.835.)
F 2.52i
Subsequent Flight: Knowledge Of Accusation
Required By Due Process
*NOTE: Add to CJ 2.52 when appropriate:
You may not consider any alleged flight of the defendant after [he][she] is accused of the crime unless you first determine that the defendant knew [he][she] was accused of the crime.
Points & Authorities
[See FORECITE F 2.52 n2.]
F 2.52j
Inapplicability Of Flight Instruction To Crimes
Where Flight Is An Element
*Add to CJ 2.52 where appropriate:
For the purposes of this instruction the term “after the commission of a crime” means ___ [insert the rule describing when the crime was complete: e.g., when the loot was carried to a position of safety–robbery, etc.].
You may not rely on flight which occurred before the crime was completed such as ___[insert inapplicable flight: e.g., immediate flight from prison in escape charge; flight from officer in VC 2500 charge; fleeing with the loot immediately after a robbery charge].
Points and Authorities
The essence of flight is that consciousness of guilt may be inferred when the defendant fled from the scene of the crime. In other words, when one flees after a crime has been committed it may be inferred that the defendant is exhibiting a consciousness of guilt. However, this rationale does not apply when the flight is itself an element of the crime or an element of the continuing course of conduct constituting the crime. In such a situation the flight did not occur after the crime. Hence, while such flight may be considered as evidence relevant to prove the element of the offense to which it relates, it cannot be “double counted” so as to permit the added inference that defendant exhibited a consciousness of guilt after the crime was committed. (See also FORECITE F 4.40 [duress].)
F 2.52k
The Foundational Facts For Flight Should Be
Proven Beyond A Reasonable Doubt
*Add to CJ 2.52:
You may not consider evidence of flight against the defendant unless you find that the following facts have been proven beyond a reasonable doubt:
1. A person fled from the scene of the crime;
2. The person who fled was the defendant;
3. The defendant fled with the intent to avoid observation or arrest.
OR
You may not consider evidence of flight against the defendant unless it is proven beyond a reasonable doubt that the defendant intentionally fled to avoid observation or arrest.
Points and Authorities
The Federal Constitution forbids conviction absent proof beyond a reasonable doubt of every fact necessary to constitute the crime. (In re Winship (70) 397 US 358, 364 [25 LEd2d 368; 90 SCt 1068]; see also Henderson v. Kibbe (77) 431 US 145, 153 [52 LEd2d 203; 97 SCt 1730].) “If the Sixth Amendment right to have a jury decide guilt and innocence means anything [citation], it means that the facts essential to conviction must be proven beyond the jury’s reasonable doubt… A jury verdict, if based on an instruction that allows it to convict without properly finding the facts supporting each element of the crime, is error.” (U.S. v. Voss (8th Cir. 1986) 787 F2d 393, 398; see alsoSandstrom v. Montana (1979) 442 US 510 [61 LEd2d 39; 99 SCt 2450]; U.S. v. Hayward (DC Cir. 1969) 420 F2d 142, 144 [“by instructing the jurors that they must find the defendant guilty if they determined that the evidence placed him at the scene of the crime, the court took from the jury an essential element of its function”].)
Therefore, in cases where flight is a major part of the prosecution’s case it may be argued that the flight is an essential fact which must be proven beyond a reasonable doubt. (See CJ 2.01; see also FORECITE F 2.01 n3.) After all, the relevance of flight is to prove the defendant’s identity as the perpetrator which is undeniably an essential fact: “An essential element of any crime is, of course, that the defendant is the person who committed the offense. Identity as the perpetrator must be proved beyond a reasonable doubt.” (People v. Hogue (91) 228 CA3d 1500, 1505 [279 CR 647].)
It should also be noted that the relevance of flight depends not just on the act of fleeing but on the assumed intent of the defendant to avoid observation or arrest. (See U.S. v. Felix-Gutierrez (9th Cir. 1991) 940 F2d 1200; People v. Crandell (88) 46 C3d 833 [251 CR 227].)
PRACTICE NOTE: CJ 2.01 or CJ 2.02 may be used for the same purpose. (See FORECITE F 2.52a CAVEAT Re: Burden of Proof.)
F 2.52l
Multiple Forms Of Consciousness Of Guilt Not Alone
Sufficient To Convict
*Modify last sentence of CJ 2.52 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.)
F 2.52m
Flight: Probative Value Reduced By Remoteness In Time
*Add to CJ 2.52:
The more remote in time the alleged flight is from the commission or accusation of an offense, the greater the likelihood that it resulted from something other than feelings of guilt concerning that offense.
Points and Authorities
U.S. v. Myers (5th Cir. 1977) 550 F2d 1036, 1051; see also U.S. v. Blanco (9th Cir. 2004) 392 F3d 382, 395-96.
F 2.52n
Flight: Alternative Instruction
*Replace CJ 2.52 with the following:
Intentional flight by a defendant after he is suspected of the crime [for] which he is now on trial, may be considered by you in light of all the other evidence in the case. The burden is upon the government to prove intentional flight. Intentional flight after a defendant is accused of a crime is not alone sufficient to conclude that he is guilty. Flight does not create a presumption of guilt. At most, it may provide the basis for an inference of consciousness of guilt. But flight may not always reflect feelings of guilt. Moreover, feelings of guilt, which are present in many innocent people, do not necessarily reflect actual guilt. In your consideration of the evidence of flight, you should consider that there may be reasons for the defendant’s actions that are fully consistent with innocence.
It is up to you as members of the jury to determine whether or not evidence of intentional flight shows a consciousness of guilt and the weight or significance to be attached to any such evidence.
Points and Authorities
U.S. v. Blanco (9th Cir. 2004) 392 F3d 382, 396-397 [observing that this instruction had “significant cautionary language”].
F 2.52o
Flight: Jury Not To Consider Flight Of
Accomplice As To Defendant
*Add to CJ 2.52:
You are instructed that any alleged flight by __________ (insert person who fled) does not show a consciousness of guilt on the part of the defendant. Therefore you should not consider _________’s flight when determining whether or not the defendant’s guilt has been proven beyond a reasonable doubt. By so limiting this instruction, I have not intended to express any opinion upon the believability or probative value of any evidence of flight which may be applicable to the other defendant[s]. The probative value of such evidence, if any, is a matter solely for your determination.
Alternative form:
*Modify CJ 2.52 as follows [added language is capitalized; deleted language is between << >>]:
The [flight] [attempted flight] [escape] [attempted escape] [from custody] of <<a person>> THE DEFENDANT [immediately] after the commission of a crime, or after [he] [she] is accused of a crime, is not sufficient in itself to establish [his] [her] guilt, . . .
Points and Authorities
When there is sufficient evidence of flight as to some defendants but not others the flight instruction should be limited accordingly. (People v. Pitts (90) 223 CA3d 606, 877-79]; People v. Mora (56) 139 CA2d 266, 274.) Any such modification or limitation of the flight instruction should avoid the implication that the defendants to which the instruction applies actually fled. (Pitts, 223 CA3d at 877.)
The same concerns apply to the flight of an uncharged accomplice. In the trial of a single defendant for crimes committed with others, CJ 2.52 has the potential to cause serious prejudice to the defendant’s right to a fair trial. Where the prosecutor relied on evidence and argument of an uncharged coperpetrator’s flight to support a finding of the defendant’s guilt, that potential was realized.
CJ 2.52 provides as follows:
The flight of a person immediately after the commission of a crime or after he is accused of a crime is not sufficient in itself to establish his guilt but is a fact which, if proved, may be considered by you in light of all other proved . . . facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide.
The problem is alarmingly simple, and is alarmingly serious. Essentially, the instruction gives the jury two rules in plain language”
(1) “A person’s” – any person’s – flight after a crime, buy itself, does not establish that person’s guilt.
(2) Any person’s flight after a crime is relevant and may be considered in drawing an inference that the defendant is guilty.
There is nothing ambiguous about the instruction; it sets forth both rules in straightforward fashion. Of course, in a trial of a single defendant, where evidence of flight involves only that person, the distinction emphasized above is meaningless. But where the prosecutor expressly relies on a non-defendant’s flight to argue the defendant’s guilt, the distinction becomes significant, and there is no reason why a jury would ignore it.
Even if the instruction is viewed as ambiguous with respect to the “person-defendant” distinction, “[t]he relevant question in reviewing defendant’s challenge is whether there is a ‘reasonable likelihood’ that the jury understood the charge as defendant asserts. [Citations.]” (People v. Petznick (2003) 114 CA4th 663, 678; Estelle v. McGuire (91) 502 U.S. 62, 72 [116 LEd2d 385; 112 SCt 475].)
Accordingly, CJ 2.52 should be modified as set forth above 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 § 15) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. (See FORECITE PG VII.)
NOTES
If it is determined that the above instruction is insufficient to avoid prejudice, an alternative would be to inform the jury that the specific conduct of the defendant does not constitute flight. (Pitts, 223 CA3d at 877.)
For additional briefing on this issue, see Brief Bank # B-981.
(See also FORECITE F 2.52d.)