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F 2.71 n1 No Cautionary Instruction If The Precise Nature Of The 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]; see also People v. Slaughter (2002) 27 C4th 1187, 1200 [120 CR2d 477] [cautionary instruction should not be given if the oral admission was tape-recorded and the tape recording was played for the jury].)
[Research Note: See FORECITE BIBLIO 2.70]
F 2.71 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”].) [Briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-518.] (See also, FORECITE F 2.70c; FORECITE F 2.71c.)
[Research Note: See FORECITE BIBLIO 2.70]
F 2.71 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 2.71 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 and CJ 2.71 when the statements are offered for a non-hearsay purpose.
[Research Note: See FORECITE BIBLIO 2.70]
F 2.71 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 and CJ 2.71. First, the court stressed that the proper focus of CJ 2.70 is whether the defendant made any 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, Caldwellsuggested 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 2.71 n5 Prejudice 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 2.71 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 2.71 n7 Cautionary Instruction Applies To Statements Made Before, During, Or After The Crime.
[See FORECITE F 2.70 n7.]
F 2.71 n8 Defense Objection To Preclude Cautionary Instruction As To Admissions/Confession.
(See FORECITE F 2.70 n8.)
F 2.71 n9 Death Penalty Trial: Admissions/Confession — Cautionary Instruction Should Only Be Given On Request.
See FORECITE F 8.84.1 n8.
F 2.71 n10 CJ 2.71 Should Not Be Given At Penalty Trial.
See People v. Slaughter (2002) 27 C4th 1187, 1201 [120 CR2d 477]; see also People v. Livaditis (92) 2 C4th 759, 782-84 [9 CR2d 72] [2.71 should be given at the penalty phase only upon request by defendant because the demarcation between the aggravating and mitigating effect of an admission can be blurred and more open to interpretation than the distinction between inculpatory and exculpatory effect]. (See also People v. Slaughter, 27 C4th at 1201.)
F 2.71 n11 Adoptive Admissions Must Be Viewed With Caution.
See FORECITE F 2.71.5d.
F 2.71 n12 Admission Or Confession From Physical Violence Is Per Se Involuntary.
See FORECITE F 2.70 n13.
F 2.71 n13 Confessions: Deliberately Eliciting From Defendant Who Has Been Charged.
A Massiah (Massiah v. United States (64) 377 US 201 [12 LEd2d 246; 84 SCt 1199] violation occurs when the government deliberately elicits incriminating statements from a defendant after that person has been formally charged with a crime. In Fellers v. United States (2004) 540 US 519 [157 LEd2d 1016; 124 SCt 1019] the police arrested the defendant after he had been indicted and informed him of what he had been indicted for. Fellers then made admissions. In a unanimous decision, the Supreme Court ruled that these facts showed a deliberate eliciting of information, finding a Massiah violation and requiring suppression.
F 2.71 n14 Cautionary Instruction On Admissions Should Not Be Given Where Defendant’s Words Constitute The Crime.
Where the defendant’s words constitute the crime itself, the jury is not to be instructed that those words should be viewed with caution. Such an instruction may mislead the jury concerning the burden of proof. (People v. Zichko (2004) 118 CA4th 1055.)
F 2.71 n15 Adoptive Admission—Not Applicable To Exercise Of Fifth Amendment.
See FORECITE F 357 Note 6.
F 2.71a
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 2.71 should be given when the defendant’s out-of-court statements are exculpatory.
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 2.71b
Admissions Or Confessions May Be Disregarded
*Add to CJ 2.71:
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 2.71c
Confessions And Admissions: Factors To Consider
ALTERNATIVE FORMS
Alternative Form 1:
*Insert the following after the final ¶ of CJ 2.71:
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.)
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.]
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 2.71d
Confessions And Admissions: Considerations of Coercion, Etc.
*Add to CJ 2.71:
See FORECITE F 2.70d; see also FORECITE F 2.70 n9.
F 2.71e
Jury Need Not Give All Parts Of Defendant’s Statement Equal Weight
*Add to CJ 2.71:
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 2.71 should be supplemented to include the above clarification which is based on Deerings EC 406, “Suggested Form.”
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 2.71f
When Defendant’s Statement Is A Confession Or Admission To One
Charge, But Not Another
*To be added at end of CJ 2.71 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 2.71 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.
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 2.71g
Confession Or Admission of One Defendant In Multi-Defendant Trial
*Re: CJ 2.71:
[See FORECITE F 2.70g.]
F 2.71h
Defense Theory That Confession Or Admission Was
The Result Of Specific Threats From Others
*Add to CJ 2.71:
[See FORECITE F 2.70h.]
F 2.71i
Defense Theory That Mental Disorder Of Defendant
Caused Him To Make A False Confession
*Add to CJ 2.71:
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
(See FORECITE F 2.70j.)
