F 2.70

F 2.70 n1 No Cautionary Instruction If The Precise Nature Of Defendant’s Statement Is Undisputed.

CJ 2.70 is unnecessary when “there could be no mistake as to what the defendant said.” (People v. Gardner (61) 195 CA2d 829, 832 [16 CR 256]; see also People v. Hines (64) 61 C2d 164, 173 [37 CR 622]; People v. Britton (36) 6 C2d 10, 13 [cautionary instruction inapplicable when defendant’s statement is tape recorded or in writing].)

[Research Note: See FORECITE BIBLIO 2.70]

F 2.70 n2 Admissions/Confessions: Informing Jury As To Reasons For Caution.

People v. Gardner (61) 195 CA2d 829, 832 [16 CR 256] provides a basis for arguing that the jury should be instructed upon the reasons why an oral admission should be viewed with caution. (See also, People v. HallDEPUBLISHED (92) 8 CA4th 349, 354 [10 CR2d 259] [instruction must be viewed in light of the “purpose underlying the instruction”].) [See Brief Bank # B-518 for briefing on this issue.] (See also, FORECITE 2.70c; FORECITE 2.71c.)

[Research Note: See FORECITE BIBLIO 2.70]

F 2.70 n3 Applicability To Admissions Not Offered For The Truth Of The Matter Asserted.

In People v. LaSalle (80) 103 CA3d 139, 149-52 [162 CR 816], the court held that instruction upon the defendant’s admission or confession may be given only if the defendant’s statements tending to show guilt are in the nature of hearsay statements, which are admissible under the admission exception, to prove the truth of the matter asserted in the statements. LaSalle suggested amendatory language limiting the admission and confession instructions to extrajudicial statements by a defendant which are offered to prove the truth of the content of the statement. (Id. at 150-52.)

CALJIC did not so amend CJ 2.70 but it did include LaSalle in its comment as “an example of where CJ 2.70 is not required.”

However, in People v. Brackett (91) 229 CA3d 13, 18-20 [280 CR 305], the court disagreed with LaSalle’s limitation analysis and concluded that the instruction is not improper even if the admission is offered to show the defendant’s state of mind rather than the truth of the matter asserted. (See also People v. Hall DEPUBLISHED (92) 8 CA4th 349 [10 CR2d 259]; People v. Mendoza (87) 192 CA3d 667, 675-76 [238 CR 1].)

Hence, there is now a conflict between LaSalle and several more cases regarding the applicability of CJ 2.70 when the statements are offered for a non-hearsay purpose.

[Research Note: See FORECITE BIBLIO 2.70]

F 2.70 n4 Definition Of Confession And Admission Should Be Deleted.

In People v. Caldwell DEPUBLISHED (92) 9 CA4th 443 [11 CR2d 752], the court rejected the defendant’s argument that the last paragraph of CJ 2.70 — that the confession or admission should be viewed with caution — requires that the defendant’s testimony and the defense be viewed with distrust. In so doing, the court provided a basis for two modifications to CJ 2.70. First, the court stressed that the proper focus of CJ 2.70 is whether the defendant madeany statements and whether they were accurately reported. Hence, there is a basis for modifying the cautionary instruction to inform the jury as to the reasons for caution. (See FORECITE F 2.70 n2.) Second, Caldwell suggested that the definitions of confession and admission in the cautionary instruction be deleted. “We discern no useful purpose for including definitions of a confession and an admission in CJ No. 2.70. A more concise, understandable, and useful instruction would refer simply to ‘statements.'” (Caldwell 9 CA4th at 449, fn 2.)

[Research Note: See FORECITE BIBLIO 2.70]

F 2.70 n5 Prejudicial Effect Of Failure To Caution About Admissions/Confessions.

The following factors should be considered in evaluating whether the failure to instruct upon admissions was prejudicial. First, whether there is conflicting evidence concerning whether the statements were made. (People v. Bemis (49) 33 C2d 395, 400-01 [202 P2d 82]; compare with People v. Beagle (72) 6 C3d 441, 456 [99 CR 313].) Second, whether the oral admissions were reported by witnesses friendly to the accused or biased against him. (People v. Lopez (75) 47 CA3d 8, 14 [120 CR 562.) Third, the relative importance of the admissions. (See People v. Ford (64) 60 C2d 772, 800 [36 CR 620]; Lopez 47 CA3d at 14.) [Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-553.]

[Research Note: See FORECITE BIBLIO 2.70]

F 2.70 n6 When Some Statements Are Recorded Or Written And Others Are Not.

The cautionary instructions regarding admissions and confessions do not normally apply to statements which were tape recorded or presented in writing. (See FORECITE F 2.70; F 2.71 n1.) However, when some statements were recorded or in writing and others were not, there is a danger that the jury will be confused if they are simply told that the cautionary instruction does not apply to oral statements which were presented by a tape recording or in writing. Under such an instruction, the jury might conclude that if the defendant’s tape recorded admissions “proved” the non-tape-recorded admission, then none of the defendant’s oral admissions need be viewed with caution. Accordingly, in such a case, the possibility of confusion may be eliminated by specifically instructing the jury as to which statements should and should not be viewed with caution. (People v. Mayfield (97) 14 C4th 668, 775-76 [60 CR2d 1].)

F 2.70 n7 Cautionary Instruction Applies To Statements Made Before, During, Or After The Crime.

“The purpose of the cautionary instruction [as to confessions and admissions] is to assist the jury in determining if the statement was in fact made.” People v. Beagle (72) 6 C3d 441, 456 [99 CR 313]; see also People v. Carpenter (97) 15 C4th 312 [63 CR2d 1]. This purpose applies to any oral statement of the defendant, whether made before, during, or after the crime. (Carpenter 15 C4th at 392-93.)

F 2.70 n8 Defense Objection To Preclude Cautionary Instruction As To Admissions/Confession.

In People v. Frye (98) 18 C4th 894, 958-9 [77 CR2d 25] the Supreme Court concluded that CJ 2.71 is a cautionary instruction, the effect of which is beneficial to the defendant. Hence, should the defense wish to avoid such an instruction for strategic reasons (e.g., the instruction could encourage the jury to conclude that the defendant’s statements admitted or confessed guilt), the defense should be able to resist the instruction under the theory that a beneficial cautionary instruction may be waived at the discretion of the defendant. (See FORECITE F 2.03 n9, F 2.15 n9.)

F 2.70 n9 Confession Of Co-Defendant: Inability Of Instruction To Limit Or Cure Prejudice.

“The matrix of Aranda is that jurors are unable to comply with an admonition to disregard information revealed through inadmissible evidence even when such admonition comes from the judge and is directed at specific evidence at the moment it comes in.” (People v. Laursen (68) 264 CA2d 932, 938 [71 CR 71]; see also Gray v. Maryland (98) 523 US 185 [140 LEd2d 294; 118 SCt 1151] [replacing defendant’s name with an obvious blank may call the jurors’ attention to the removed name and thereby overemphasize the importance of the confession’s accusation once the jurors understand the reference]; see also People v. Song (2004) 124 CA4th 973 [admission of co-defendant’s statements violated Bruton, Aranda and Crawford; limiting instruction did not cure].)

F 2.70 n10 Confessions And Admissions: Expert Testimony Regarding Defendant’s Language/Communication Difficulties To Explain Discrepancies Between Statements To Police And Defendant’s Version.

(See U.S. v. Vallejo (9th Cir. 2001) 237 F3d 1008, 1019 [abuse of discretion in refusing to admit expert testimony of school psychologist who had reviewed defendant’s special education files, sought to be introduced to explain discrepancies between defendant’s version of the statements he gave to the officer and the officer’s recollection].)

F 2.70 n11 Exclusion Of Inculpatory Statement By Third Party As Hearsay: Due Process Violation.

When a hearsay statement bears persuasive assurances of trustworthiness and is critical to the defense the exclusion of that statement may rise to the level of a constitutional violation of due process. (Chambers v.Mississippi (73) 410 US 284, 302 [35 LEd2d 297; 93 SCt 1038].)

When deciding whether an evidentiary rule violates the Due Process Clause or the 6th Amendment, the Ninth Circuit applies a five part balancing test. (U.S. v. Duran (9th Cir. 1994) 41 F3d 540, 545; Whelchel v. Washington(9th Cir. 2000) 232 F3d 1197, 1211.) The factors considered are: (1) the probative value of the excluded evidence on the central issue; 2) its reliability; 3) whether it is capable of evaluation by the trier of fact; 4) whether it is the sole evidence on the issue or merely cumulative; and 5) whether it constitutes a major part of the attempted defense. (Tinsley v. Borg (9th Cir. 1990) 895 F2d 520, 530.)

Self-inculpatory statements have long been recognized as bearing strong indicia of reliability. (Williamson v. U.S. (94) 512 US 594, 599 [129 LEd2d 476; 114 SCt 2431] [“[R]easonable people, even reasonable people who are not especially honest, tend not to make self-inculpatory statements unless they believe them to be true”].)

Accordingly, exclusion of inculpatory statements by a third party which are critical to the defense may implicate the federal constitution. (See Chia v. Cambra (9th Cir. 2002) 281 F3d 1032, 1039 [statements to police were reliable and crucial to defense and it was constitutional error for trial court to exclude them based on “mechanistic application” of state hearsay rules].)

F 2.70 n12 Death Penalty Trial: Admissions/Confession — Cautionary Instruction Should Only Be Given On Request.

See FORECITE F 8.84.1 n8.

F 2.70 n13 Admission Or Confession From Physical Violence Is Per Se Involuntary.

A confession accompanied by physical violence is per se involuntary, while one accompanied by psychological coercion is not. (United States v. Miller, (9th Cir. 1993) 984 F2d 1028, 1030. Thus, in psychological coercion cases, the court looks to the totality of the circumstances surrounding a confession. (Id. at 1031.)

F 2.70a

Confessions And Admissions: When Exculpatory Statements Included

*To be added at end of CJ 2.71 and CJ 2.72:

An exculpatory out-of-court statement made by the defendant is not an [admission] [confession] and should not be viewed with caution.

Points and Authorities

The cautionary instructions regarding out-of-court statements made by the defendant are usually given where evidence of a statement amounting to an admission or confession made by the defendant is presented by the prosecution. The purpose of the instruction in that context is to benefit the defendant because it directs the jury to critically and consciously assess whether the inculpatory statement was actually made and accurately reported. (People v. Beagle (72) 6 C3d 441, 455 [99 CR 313].)

However, when the defendant relies on his/her own prior statement, the rationale for the instruction disappears. Because the defendant is no longer in need of the protection afforded by the warning, the giving of the instruction is unnecessary. (Cf. People v. Jackson (54) 42 C2d 540, 546 [268 P2d 6]; see also FORECITE F 3.18a [error to caution the jury regarding the exculpatory testimony of an accomplice called by the defense].)

Hence, CJ 2.70 should not be given when the defendant’s out-of-court statements are entirely exculpatory and should be modified to only apply to allegedly inculpatory statements.

In People v. Vega (90) 220 CA3d 310 [269 CR 413], the Court of Appeal considered whether the jury should be cautioned regarding admissions (CJ 2.70 / CJ 2.71) where the defendant’s statements were both exculpatory and incriminating. The court concluded that the trial judge had no sua sponte duty to modify the instructions because “a jury is capable of discerning whether an extrajudicial statement is an admission, which they are instructed to view with caution, or whether the statement is not an admission, to which the cautionary language does not apply.” (Vega at 318; see also People v. Senior (92) 3 CA4th 765, 776-77 [5 CR2d 14].) However, these cases do not settle the question of the right to a clarifying instruction upon request. Because of the potential confusion, such a request should be granted.

Improper or incomplete instruction upon the evaluation of witness credibility lessens the prosecution’s burden and implicates the defendant’s 14th Amendment federal constitutional right to a fair trial and due process of law. [See generally, FORECITE PG VII.]

NOTES

In two decisions originally published and later decertified, it was held that the jury should not be instructed to view the defendant’s out-of-court statements with caution when the defendant has relied upon those statements to support his/her defense. (People v. Allen DEPUBLISHED (89) 215 CA3d 392 [263 CR 826]; People v. Pacheco DEPUBLISHED (89) 208 CA3d 415 [256 CR 82].)

If the request for the above instruction is denied, then counsel should have the right to inform the jury during argument which specific statements must not be viewed with caution.

F 2.70b

Admissions Or Confessions May Be Disregarded

*Add to CJ 2.70:

As with any other part of the prosecutor’s case, an admission or confession may be shown to be insufficiently corroborated or otherwise unworthy of belief. You are at liberty to disregard any admissions or confessions that are insufficiently corroborated or which you otherwise deem unworthy of belief.

Points and Authorities

In Lego v. Twomey (72) 404 US 477, 486-87 [30 LEd2d 618], the high court observed that juries are “at liberty to disregard confessions that are insufficiently corroborated or otherwise unworthy of belief.” Therefore, if the defense relies upon a theory that the admission or confession should not be believed, an instruction pinpointing this theory should be give upon request. (See e.g., People v. Wright (88) 45 C3d 1126, 1136-37 [248 CR 600]; see also, FORECITE PG III(A).)

Jury reliance upon an unreliable or untruthful admission or confession would implicate the defendant’s state (Art. I, § 15 and § 16) and federal constitutional rights (5th, 6th and 14th Amendments) against self-incrimination, to trial by jury and to due process. [See generally, FORECITE PG VII.]

F 2.70c

Confessions And Admissions: Factors To Consider

ALTERNATIVE FORMS

Alternative Form 1:

*Insert the following after the final ¶ of CJ 2.70:

This kind of evidence is considered dangerous, first because it may be misapprehended by the person who hears it; secondly, it may not be well remembered; thirdly, it may not be correctly repeated. Therefore, when the prosecution has produced evidence of an oral confession [admission] by the defendant, that is, one which was not simultaneously recorded verbatim in any way, you should carefully consider whether such a statement was in fact made, and if you find it was made, whether it has been quoted, paraphrased or summarized accurately in this trial.

Alternative Form 2:

You heard testimony that the defendant made a statement to [e.g.: the police]. When you consider this testimony, you should ask yourselves these questions:

First, did the defendant say the things the witnesses told you the defendant said? To answer this question, you must decide if the witness is honest, has a good memory and whether [he] [she] accurately understood the defendant.

Second, if the defendant, __________, did make the statement, was it correct? Here you must consider all of the circumstances under which the statement was made, including the defendant’s personal characteristics, and ask yourselves whether a statement made under these circumstances is one you can rely on.

After you have answered both these questions in the affirmative, you may rely on the testimony about the statement as much, or as little, as you think proper.

Points and Authorities

The primary purpose of CJ 2.70 “is to assist the jury in determining if the statement was in fact made.” (People v. Beagle (72) 6 C3d 441, 456 [99 CR 313]; People v. Stankewitz II (90) 51 C3d 72, 93-94 [270 CR 817].) Hence, unless there is an issue as to the voluntariness of the statement (See FORECITE F 2.70d / FORECITE F 2.71d), the dangers associated with such statements normally arise from misapprehension, lack of recollection and inaccurate repetition. (See People v. Gardner (61) 195 CA2d 829, 832 [16 CR 256].) CJ 2.70 and CJ 2.71 fail to assure that these factors will be considered by the jury. (People v. Garceau (93) 6 C4th 140, 193-94 [24 CR2d 664] does not hold to the contrary because the instruction rejected therein was argumentative because it referred to specific evidence.)

NOTES

Alternative #1 above is based on the Gardner language.

Alternative #2 above, which addresses the factors identified in Gardner, is adapted from the standard form proposed by the Federal Judicial Center (Fed. Jud. Ctr., Pattern Crim. Jury Instructions (1988) Inst. #36.)

Counsel should decide whether or not to offer both alternatives.

F 2.70d

*Add to CJ 2.70:

ALTERNATIVE FORMS

Alternative Form 1:

In determining the believability of defendant’s alleged statements, consider any evidence of the circumstances surrounding the defendant’s interrogation, together with any psychological factors that may have influenced defendant in making such statements. The weight, if any, to be given by you to any alleged statement, is for your sole determination.

Alternative Form 2:

If you find from the evidence that a statement was made by the defendant, you must then determine if it was produced by means of coercion. Although coercive methods do not necessarily produce false confessions or admissions, they certainly may have that effect. Therefore, if you determine that coercion did occur, consider this fact in determining the weight, if any, the defendant’s alleged statements should be given.

Alternative Form 3:

In evaluating whether any statement, or act or omission alleged to have been made by a defendant outside of court and after a crime has been committed was knowingly and voluntarily made or done, consider the age, training, education, occupation, and physical and mental condition of the defendant, and [his] [her] treatment while in custody or under interrogation. Consider all other circumstances in evidence surrounding the making of the statement.

If after considering the evidence you decide that a statement, or act or omission was made or done knowingly and voluntarily, you may give it such weight as you feel it deserves under the circumstances.

Alternative Form 4:

In determining the voluntariness of any statement alleged to have been made by the defendant, consider all the circumstances in evidence surrounding the making of the statement, including but not limited to:

1. The defendant’s age;

2. The defendant’s intelligence;

3. Whether or not the defendant was given any advice of his constitutional rights;

4. The length of the detention;

5. Whether the questioning was repeated and/or prolonged;

6. Any physical punishments or hardships such as deprivation of food or sleep.

If after considering all the evidence you determine that a statement, or act or omission was made or done knowingly and voluntarily, you may give it such weight as you feel it deserves under the circumstances.

Points and Authorities

The primary purpose of CJ 2.70 “is to assist the jury in determining if the statement was in fact made.” (People v. Beagle (72) 6 C3d 441, 456 [99 CR 313]; People v. Stankewitz II (90) 51 C3d 72, 94 [270 CR 817].) As a corollary to this concern, when there is an issue as to the truth or accuracy of the defendant’s statement as a result of the circumstances under which it was given, the jury should be further instructed to consider these circumstances. “[The] physical and psychological environment that yielded the confession can … be of substantial relevance to the ultimate factual issue of the defendant’s guilt or innocence.” (Crane v. Kentucky (86) 476 US 683, 689 [90 LEd2d 636].) Hence, “juries have been at liberty to disregard confessions that are insufficiently corroborated or otherwise deemed unworthy of belief.” (Lego v. Twomey (72) 404 US 477, 486-87 [30 LEd2d 618].) When the record contains evidence upon which the jury may question the credibility of the confession (see EC 406; Jefferson’s Synopsis Of California Evidence § 25.4), the jury should be informed about the considerations set forth in the above instructions. (See alsoU.S. v. Hien Hai Hoac (9th Cir. 1993) 990 F2d 1099, 1107-09 [court is obligated under federal rules to instruct the jury concerning the weight to be accorded a defendant’s statement when the defendant raises a genuine issue concerning the voluntariness of the statement; Hof v. State (Maryland) (95) 655 A2d 370 [337 Md 581] [requiring jury to consider whether confession was voluntary]; see also In re Cameron (68) 68 C2d 487, 498 [67 CR 529] [coercion should be determined by considering the “totality of the circumstances”].)

“The totality of the circumstances contains no ‘talismanic definition’ of voluntariness. [Citation.] Courts instead often consider the following factors: the youth of the accused, his intelligence, the lack of any advice to the accused of his constitutional rights, the length of detention, the repeated and prolonged nature of the questioning, and the use of physical punishment such as the deprivation of food or sleep. [Citation.]” (United States v. Haswood(9th Cir. 2003) 350 F3d 1024, 1027; see also Mincey v. Arizona (78) 437 US 385, 398-99 [57 LEd2d 290; 98 SCt 2408] [finding that a statement could not have been voluntary when obtained from a defendant who was in the hospital, in near coma condition, and in great pain, while fastened to tubes, needles, and a breathing apparatus]; Haynes v. Washington (63) 373 US 503, 510-12 [10 LEd2d 513; 83 SCt 1336] [invalidating a confession where the authorities held the suspect for more than five days and never advised him of his rights]; Ashcraft v. Tennessee (44) 322 US 143, 149-54 [88 LEd 1192; 64 SCt 921] [invalidating a confession because police officers questioned suspect in relays for thirty-six hours straight, allowing him only a single five-minute respite].)

(See also FORECITE F 2.13.1 n2; F 2.20h.)

NOTES

Alternative #1 above was given upon request in People v. Wimberly, No. 83812, Alameda County Superior Court.

Alternative #2 was adapted from a “Suggested Form” in Deerings EC 406 (1986), p. 162.

Alternative #3 was adapted from the standard federal instruction. (Devitt, et al., Fed. Jury Prac. & Inst. (1992) § 14.03.)

Alternative #4 was adapted from United States v. Haswood (9th Cir. 2003) 350 F3d 1024.

Counsel should determine whether a particular alternative is more suitable or whether several alternatives should be offered. Additional language, based on Crane and Lego could include the following:

You may consider evidence about the manner in which defendant’s admissions were secured in determining the probative weight of those admissions. This matter is exclusively for the jury to assess.

You may consider the physical and psychological environment that yielded the defendant’s admissions in determining whether they are believable.

(See also FORECITE F 2.70 n9.)

F 2.70e

Jury Need Not Give All Parts Of Defendant’s Statement Equal Weight

*Add to CJ 2.70:

You are not bound to regard all parts of the defendant’s statement with equal confidence.

Points and Authorities

When evidence has been presented relating to the weight or credibility of certain parts of the defendant’s oral statement, the jury may rightfully give less weight or consideration to those portions of the statement. (See EC 403.) Hence, when appropriate, CJ 2.70 should be supplemented to include the above clarification which is based on Deerings EC 406, “Suggested Form.”

F 2.70f

Confession Or Admission To One Charge, But Not Another

*To be added at end of CJ 2.70 when appropriate:

In this case, the defendant is charged with the commission of more than one offense. As to the charge of ________ in Count _____, you are instructed that any statement made by the defendant is not a confession. Rather, if you find that the statement is worthy of consideration, it may be considered solely as an admission.

Points and Authorities

A defendant may make a statement which is a confession to one charged crime (e.g. a lesser offense), but not as to another charged crime. In such a situation CJ 2.70 should be modified to avoid implying that the defendant has “confessed” to both charges. EC 355 requires instruction upon the limited scope of evidence upon request.

F 2.70g

Inculpatory Statement Of One Defendant In Multi-Defendant Trial

See FORECITE F 358 Inst 7.

F 2.70h

Defense Theory That Confession Or Admission Was

The Result Of Specific Threats From Others

*Add to CJ 2.70:

It is [the] [a] defense theory that the defendant’s statement was due to fear of retaliation by the person who actually committed the crime.

[Consider this defense theory in light of all the evidence in deciding whether the prosecution has proven beyond a reasonable doubt that the accused committed the charged crime.]

[After considering this defense theory, in light of all the evidence, any juror who has a reasonable court that the accused committed the charged crime must give [him] [her] the benefit of that doubt and vote to acquit.]

Points and Authorities

Where the accused contends that his or her admission/confession was given in response to threats by others, the accused should have a right to a pinpoint instruction on this defense theory. “[A]s a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.” (Mathews v. United States (88) 485 US 58, 63 [99 LEd2d 54; 108 SCt 883] [citingStevenson v. United States (1896) 162 US 313, 323 [40 LEd 980; 16 SCt 839] [refusal of voluntary manslaughter instruction in murder case where self defense was primary defense constituted reversible error]; see also Keeble v. U.S. (73) 412 US 205, 207 [36 LEd2d 844; 93 SCt 1993].) Thus, 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 264] [defendant has the right to a pinpoint instruction which relates “his [evidentiary theory] to an element of the offense”]; People v. Wright (85) 45 C3d 1126, 1136-37 [248 CR 600]; People v. Adrian (82) 135 CA3d 335, 342 [185 CR 506]; FORECITE PG III (A) & (D).)

People v. Boyette (2002) 29 C4th 381 [127 CR2d 544] recognized that a valid defense theory may be predicated upon evidence that the defendant and his family had been threatened, thus persuading the defendant to change his story from blaming another man for the shooting to accepting blame himself for fear of retaliation. This evidence was not barred by the hearsay rule, because it was not offered for its truth (i.e., that others actually intended to retaliate against the defendant or his family), but for a different purpose: to show the effect of the statement on the defendant. (See People v. Jackson (91) 235 CA3d 1670, 1680-81 [1 CR2d 778].)

F 2.70i

Vienna Convention

*Add to CJ 2.70:

To be voluntary, a statement must be freely and willingly given with complete understanding and without coercion, duress, threats, use of violence, fear of injury, or any suggestions or promises of leniency or reward. A statement induced by the slightest hope of benefit or the remotest fear of injury is not voluntary. To be voluntary, a statement must be the product of a free will and not under compulsion or any necessity imposed by others.

You may consider the legality, duration, and conditions of detention as factors relevant to the question of whether or not a statement was freely and voluntarily made. However, under the law, in order for a statement to be excluded because of illegal detention, it must be shown that the statement was, in fact, induced by such illegal detention.

Reference has been made in this case to the Vienna Convention treaty. This is an international treaty to which many countries, including the United States and Mexico, are parties. The Vienna Convention provides in part that a foreign national, upon request, has a right to have his country’s consulate notified that he is arrested or detained in any other manner. The authorities should inform the person concerned without delay of his rights under this treaty. Defendant in this case contends that the police failed to inform him of his rights under the Vienna Convention. As a general rule, however, international treaties do not create individual rights which are privately enforceable in court proceedings. Any failure by the police to inform Defendant of his rights under this treaty would not, by itself, make his statement involuntary. Consider this evidence along with all the other evidence in determining the voluntariness of Defendant’s statements.

[Adapted from instruction given in State of Georgia v. Bautista Ramirez (Superior Court of Dekalb County, No. 00CR3159-4).]

Points and Authorities

Under Article 36 of the 1963 Vienna Convention on Consular Relations (VCCR), local authorities must inform all detained foreigners “without delay” of their right to have their consulate notified of their detention. At the request of the national, the authorities must then notify the consulate without delay, facilitate unfettered consular communication and grant consular access to the detainee. Consuls are empowered to arrange for their nationals’ legal representation and to provide a wide range of humanitarian and other assistance, with the consent of the detainee. Local laws and regulations must give “full effect” to the rights enshrined in Article 36. The USA ratified the VCCR without reservations in 1969. So fundamental is the right to consular notification and access that the U.S. Department of State considers it to be required under customary international law in all cases, even if the detainee’s home country has not signed the VCCR. As of 1 January, 2000, at least 165 countries were parties to the VCCR.

The burden of informing the detainee rests with the state. Vienna Convention, art. 36(b) Article 36 confers rights on individuals, not states. (See, e.g., United States v. Briscoe (D. V.I. 1999) 69 FSupp2d 738; United States v. Hongla-Yamche (D. Mass. 1999) 55 FSupp2d 74; United States v. Torres-del Muro (C.D. Ill. 1999) 58 FSupp2d 931.

In March of 2004, the International Court of Justice determined in the Avena case (Mexico v. USA) that advisement of consular rights “without delay” means “a duty upon the arresting authorities to give that information to an arrested person as soon as it is realized that the person is a foreign national, or once there are grounds to think that the person is probably a foreign national.”

A violation of Article 36 may provide the basis for instruction to the jury. (See e.g., State of Georgia v. Bautista Ramirez (Superior Court of Dekalb County, No. 00CR3159-4) [court instructed the jury about the provisions of Article 36 of the Vienna Convention, right to consular notification, and that the jury could consider its violation in determining whether a confession was involuntary]; cf. Breard v. Greene (98) 523 US 371 [140 LEd2d 529; 118 SCt 1352] [Supreme Court considered Breard’s argument on his habeas petition, but the court found that the Vienna Convention issue was procedurally defaulted because Breard did not raise it in the trial court].)

F 2.70j

Defense Theory That Mental Impairment Caused

Defendant To Make A False Confession

*Add to CJ 2.70:

Even if you find that the defendant’s statement was voluntary, you must also decide whether it was truthful. In deciding truthfulness, you should consider whether the defendant had a mental disorder which caused [him] [her] to make a false inculpatory statement. [If you have a reasonable doubt whether the statement was truthful you must resolve that doubt in favor of the defendant and [find [him] [her] not guilty] [find that the statement was not truthful].]

Points and Authorities

The United States Supreme Court has recognized that “a defendant’s case may stand or fall on his ability to convince the jury that the manner in which the confession was obtained casts doubt on its credibility.” (Crane v. Kentucky (86) 476 US 683, 689 [90 LEd2d 636; 106 SCt. 2142].)

Hence, expert testimony regarding false confessions may be appropriate to “let the jury know that a phenomenon known as false confessions exists, how to recognize it, and how to decide whether it fit the facts of the case being tried.” (U.S. v. Hall (7th Cir. 1996) 93 F3d 1337, 1345.) In other words, the defendant should have the right to present expert testimony regarding a mental disorder which may have caused him to make a false inculpatory statement. (See U.S. v. Shay (1st Cir. 1995) 57 F3d 126, 129-30; see also U.S. v. Hall (7th Cir. 1996) 93 F3d 1337, 1345; State v. Buechler (NE 1998) 572 NW2d 65, 73; Miller v. State (IN 2002) 770 NE2d 763 [defendant was denied an opportunity to present a defense by exclusion of the proposed testimony of social psychologist Dr. Richard Ofshe]; see also Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 2012) § 60:26.)

Moreover, evidence that certain police interrogation techniques have a tendency to produce unreliable acknowledgments of guilt may serve to refute the commonly held notion that people do not confess to crimes they did not commit (See People v. Ramos (2004) 121 CA4th 1194 [implying that expert testimony may be admissible if there are facts suggesting that the confession was false]; see also People v. Page (91) 2 CA4th 161, 181-83 [upholding limitation on the scope of expert testimony regarding police interrogation techniques and false confessions but listing matters as to which the expert may testify].)

USE NOTE: The second bracketed sentence of the sample instruction would be appropriate when the statement is an “essential fact” which the prosecution must prove beyond a reasonable doubt. (See CJ 2.01 and CJ 2.02.)

RESEARCH NOTES:

The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation, Richard A. Leo & Richard J. Ofshe, 88 Journal of Criminal Law and Criminology 429, 1998.

For an excellent discussion of various techniques employed by the police to break down a suspect’s resistance and obtain a confession, see R. Ofshe and R. Leo, “The Social Psychology of Police Interrogation, The Theory and Classification of True and False Confessions,” Studies in Law, Politics and Society, Vol. 16, pp. 189-251; and R. Ofshe and R. Leo, “The Decision to Confess Falsely: Rational Choice and Irrational Action” (1997).

F 2.70k Unrecorded Statements To Undercover Police Agent Must Be Viewed With Caution.

See CALCRIM F 358 Inst 13.