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F 2.71.5 n1 Adoptive Admission: Distinction Between Pre-Arrest And Post-Arrest Silence.
The CJ comment to 2.71.5 states that the 5th amendment privilege against self-incrimination does not apply to commentary on defendant’s non-assertive conduct prior to trial, absent a showing that this conduct was an assertion of the privilege to remain silent. However, this comment fails to recognize the crucial distinction between pre-arrest silence and post-arrest silence.
Pre-arrest silence may be commented upon unless it is found that the silence was an invocation of 5th amendment rights. (See People v. Free (82) 131 CA3d 155, 165 [182 CR 259]; Combs v. Coyle (6th Cir. 2000) 205 F3d 269 [joining with 1st, 7th and 10th Circuits, holds that “the use of a defendant’s pre-arrest silence as substantive evidence of guilt violates the 5th Amendment’s privilege against self-incrimination. … ‘[A]pplication of the privilege is not limited to persons in custody or charged with a crime; it may also be asserted by a suspect who is questioned during the investigation of a crime’”].) Hence, pre-arrest silence in circumstances in which there is no inference of a reliance on the right to silence may be used to impeach post-arrest silence by way of cross examination. (Ibid.)
On the other hand, post-arrest silence, which follows a Miranda warning, may never be commented upon. (People v. Free, supra, at 162; Doyle v. Ohio (76) 426 US 610, 617 [49 LEd2d 91; 96 SCt 2240].) Moreover, even when the defendant has waived his or her Miranda rights and furnished several statements, it would be Doyle error to comment on the defendant’s subsequent silence following those statements: “If a suspect does speak, he has not forever waived his right to be silent. Miranda allows the suspect to reassert his right to remain silent at any time during the custodial interrogation. [Citation.] Thus a suspect may speak to the agents, reassert his right to remain silent or refuse to answer certain questions, and still be confident that Doyle will prevent the prosecution from using his silence against him. [Citation.]” (U.S. v. Scott (7th Cir. 1995) 47 F3d 904, 907; see also People v. Belmontes (88) 45 C3d 744, 786 [248 CR 126].)
(See also FORECITE F 2.71.5 n3.)
F 2.71.5 n2 Adoptive Admissions: Doyle Error Predicated On Inference Or Innuendo.
Doyle v. Ohio (76) 426 US 610 [49 LEd2d 91; 96 SCt 2240] error does not require “an express testimonial basis.” (People v. Evans (94) 25 CA4th 358, 370 [31 CR2d 20]. Hence, Doyle error may be predicated upon “inference or innuendo.” (Ibid.)
F 2.71.5 n3 Comment On Defendant’s Post-Arrest, Pre-Miranda Silence As Doyle Error.
See FORECITE F 357 Note 3.
F 2.71.5 n4 Comment On Defendant’s Post-Arrest Demeanor As Doyle Error.
“Doyle cannot be avoided simply by treating testimony as to a defendant’s non-responsiveness after receiving Miranda warnings as `demeanor’ evidence. Doyle has been strictly applied so that any description of a defendant’s silence following arrest and Miranda warning, whether made in the prosecutor’s case in chief, on cross-examination, or in closing arguments, constitutes a violation of the Due Process Clause.” (U.S. v. Elkins (1st Cir. 1985) 774 F2d 530, 537; cf. U.S. v. Rivera (11th Cir. 1991) 944 F2d 1563 [suggesting in dicta that it may be impermissible to characterize non-responsiveness or silence as demeanor in some contexts, but declining to reach this issue].)
The Ninth Circuit has applied the same rationale to post-arrest, pre-Miranda silence. (U.S. v. Velarde-Gomez (9th Cir. 2001) 269 F3d 1023, 1033-34; see also U.S. v. Whitehead (9th Cir. 2000) 200 F3d 634, cert.denied, 531 US 885 (2000) [Doyle (5th Amendment) applies to pre-Miranda silence].)
(See also FORECITE PG VII(C)(22.1) [Retaliation For Exercising A Right: Due Process Violation].)
F 2.71.5 n5 Adoptive Admission Instruction Required On Request But Not Sua Sponte.
When the court admits evidence subject to the existence of preliminary facts, it “[m]ay, and on request shall, instruct the jury to determine whether the preliminary fact exists and to disregard the proffered evidence unless the jury finds that the preliminary fact does exist.” (EC 403, subd. (c)(1), italics added.) “On its own terms, this provision makes it discretionary for the trial court to give an instruction regarding a preliminary fact unless the party makes a request.” (People v. Lewis (2001) 26 C4th 334, 362.)
People v. Carter (2003) 30 C4th 1166, 1198 applied the above rules to conclude that there is no sua sponte duty but “courts are required to [give CJ 2.71.5] at a defendant’s request.” The Court further explained:
“In a given case, it may be far from clear whether the defendant would wish the court to give CALJIC No. 2.71.5. The instruction is largely a matter of common sense-silence in the face of an accusation is meaningful, and hence may be considered, only when the defendant has heard and understood the accusation and had an opportunity to reply. Giving the instruction might cause the jury to place undue significance on bits of testimony that the defendant would prefer it not examine so closely. (Cf. People v. Phillips (85) 41 C3d 29, 73, fn. 25 [for similar reasons, a court has no sua sponte duty to instruct on the elements of other crimes at the penalty phase of a capital trial].)” (Ibid.)
F 2.71.5 n6 Adoptive Admissions: Applicability To Group Interview Situation.
(See People v. Castille (2003) 108 CA4th 469 [133 CR2d 489] [adoptive admissions upheld as firmly rooted hearsay exception where police interviewed all three defendants together]; compare People v. Jennings (2003) 112 CA4th 459 [no implied adoptive admissions arising from equivocal conduct such as one defendant’s silence during a joint post arrest interrogation]; but see Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354] [testimonial hearsay inadmissible where declarant is unavailable and never confronted by defendant].)
F 2.71.5a
Adoptive Admission:
Circumstances Must Have Warranted A Response
Add to CJ 2.71.5:
You may not consider the defendant’s silence unless the accusation was made under circumstances where a reasonable person, in the defendant’s position, would have responded to the accusation.
OR
You may not consider the defendant’s silence unless a reasonable person, in the same physical and mental condition as the defendant, could be expected to reply.
Points and Authorities
Silence may constitute an adoption or belief in the truth of a statement if, under the circumstances, an innocent person would have responded to the statement. (See U.S. v. Schaff (91) 948 F2d 501, 505; see also U.S. v. Hove(9th Cir. 1995) 52 F3d 233, 236-37.) Hence, the jury should be instructed not to consider the defendant’s silence unless a reasonable person in the defendant’s position would have responded. (See People v. Carter (2003) 30 C4th 1166, 1196 [nothing in the remarks referred to defendant or accused him of anything; there was nothing for defendant to deny and therefore a condition of the hearsay exception for adoptive admissions did not exist]; see also People v. Pic’l(81) 114 CA3d 824, 858-59 [171 CR 106]; Mendez, California Evidence (93) §7.02, 131.
Generally, the trial court has a sua sponte duty to instruct on the foundational requirements for adoptive admissions. (See People v. Vindiola (79) 96 CA3d 370, 381 [158 CR 6].) “…[W]hether defendant’s conduct actually constituted an adoptive admission becomes a question for the jury to decide.” (People v. Edelbacher (89) 47 C3d 983, 1101 [254 CR 586]; see also People v. Riel (2000) 22 C4th 1153, 1189-90 [96 CR2d 1].)
In BAJI it is required that the person be “in such physical and mental condition that a reasonable person in such condition could be expected to reply.” (BAJI 2.26.)
CALCRIM INSTRUCTION ON THIS POINT: See CALCRIM 375 [Adoptive Admissions].
F 2.71.5b
Inference From Pretrial Silence: Preliminary Fact Determination
*Add to CJ 2.71.5:
The prosecution has the burden of proving by a preponderance of the evidence the existence of the preliminary fact that the defendant’s silence was not an exercise of the defendant’s right against self-incrimination. Unless the prosecution meets this burden, you may not consider at all the evidence of defendant’s silence as an adoptive admission in your deliberations.
Points and Authorities
Doyle v. Ohio (76) 426 US 610 [49 LEd2d 91; 96 SCt 2240] precludes the prosecutor from relying on the defendant’s silence in the face of an accusation if the silence is an exercise of the defendant’s 5th Amendment right against self-incrimination. Hence, before an adoptive admission instruction may be given it must be established that the defendant’s silence was not due to an invocation of his or her 5th Amendment right to remain silent. (See FORECITE F 2.71.5 n1.) However, it does not appear that any case has addressed the question of whether this preliminary fact determination should be made by the judge or the jury. (See generally, FORECITE F 2.001a.) Since the reason for the defendant’s silence is at the heart of its relevancy, under EC 403 the defendant should have a right to a jury determination of the preliminary fact that the silence was not an exercise of the defendant’s 5th amendment rights before the evidence may be considered as an adoptive admission. (See e.g., People v. Pic’l (81) 114 CA3d 824 [171 CR 106] [preliminary fact requirement applies to whether a person has sufficient knowledge of the content of a hearsay statement to allow for application of the adoptive admission exception to the hearsay rule.)
(See also FORECITE PG VII(C)(22.1) [Retaliation For Exercising A Right: Due Process Violation].)
CAVEAT I: Normally, the first line of defense as to potential Doyle error should be to keep the jury from learning about it at all. An instruction such as the one above should only be considered if there is a danger the jury will consider the defendant’s silence without it.
CAVEAT II: Foundational fact instructions per EC 403 raise a danger of confusing the jury because a lesser standard is used regarding the foundational fact. (See e.g., FORECITE F 2.50b.) The advisability of requesting such an instruction should be considered in this light. When such instructions are used it may be necessary to include additional language designed to assure that the jury correctly applies the different burdens. (See e.g., FORECITE F 2.50d.)
CAVEAT III: If the preliminary fact is “essential” to the prosecution’s case it must be proved beyond a reasonable doubt. (See FORECITE F 2.50d.)
F 2.71.5c
Adoptive Admissions:
Jurors Are “Exclusive Judges” Of Whether Statement
Was Made And Whether It Was True
*Add to CJ 2.71.5 and CJ 2.72:
You are the exclusive judges as to whether the defendant made an admission, and if so, whether that statement is true in whole, in part, or not at all.
[Evidence of an oral admission of [a] [the] defendant not made in court should be viewed with caution.]
Points and Authorities
When a defendant is deemed to have made an admission by silence, the court gives a special instruction, CJ 2.71.5 on the subject, and must also instruct per CJ 2.72 on corpus delicti. But, neither instruction has two very important limiting elements which are provided for admissions through words under CJ 2.70 and CJ 2.71, i.e., the language telling the jury (a) that they are the “exclusive judges” as to whether the defendant made an admission, and, if so, whether the admission is true in whole or in part; and (b) that out-of-court admissions by silence should be viewed with caution.
Accordingly, because the trial court is obligated to correct defective instructions (see FORECITE PG V(C), the above elements should be added.
When a generally applicable instruction is specifically made applicable to one aspect of the charge and not repeated with respect to another aspect, the inconsistency may be prejudicial error. (People v. Salas (76) 58 CA3d 460, 474 [129 CR 871].) As the Supreme Court reasoned in People v. Dewberry (59) 51 C2d 548, 557 [334 CR 852]:
The failure of the trial court to instruct on the effect of a reasonable doubt as between any of the included offenses, when it had instructed as to the effect of such doubt as between the two highest offenses, and as between the lowest offense and justifiable homicide, left the instructions with the clearly erroneous implication that the rule requiring a finding of guilt of the lesser offense applied only as between first and second degree murder.
Such reasoning is also consistent with similar reasoning used in statutory interpretation. (See People v. Drake (77) 19 C3d 749, 755 [139 CR 720] [in statutory construction, omission of provision from similar statute shows different intent]; United States v. Crane (9th Cir. 1992) 979 F2d 687, 690 [maxim expressio unius est esclusio alterius “is a product of logic and common sense”].)
F 2.71.5d
Adoptive Admissions Must Be Viewed With Caution
*At end of CJ 2.71.5, ¶ 2 as follows [added language is capitalized]:
You are the exclusive judges as to whether the defendant made an admission, and if so, whether that statement is true in whole or in part. IF YOU FIND THE DEFENDANT’S SILENCE TO BE AN ADMISSION, YOU MUST VIEW IT WITH CAUTION.
Points and Authorities
The cautionary concerns of CJ 2.71 should apply to adoptive admissions. In California, admissions and adoptive admissions are hearsay exceptions, under EC 1220 and 1221. Those statutes are construed harmoniously because they were enacted in the same act (the 1965 Evidence Code) and concern the same subject matter, and thus are in pari materia. (City of Huntington Beach v. Board of Administration (92) 4 C4th 462, 468; Estate of Stevens (45) 27 C2d 108, 118-119; Uhl v. Badaracco (26) 199 C 270, 282.) That they are contained in statutes on the same subject immediately next to each other in the same code further shows a strong connection, and requirement of harmonious construction, between them. (See, e.g., People v. Godlewski (43) 22 C2d 677, 680-681; In re Petraeus (39) 12 C2d 579, 582; see also City of Huntington Beach v. Board of Administration (92) 4 C4th 462, 468.) (They are also immediately next to each other within the same rule in the Federal Rules of Evidence [Fed. R. Evid. 801, subds. (d)(2)(A) and (B)].)
As the name suggests, an “adoptive admission” is still a form of admission. “The analytical basis for this [hearsay] exception is that the adopting party makes the statement his own by admitting its truth. The statement or conduct of the adopting party thus expresses the same statement made by the declarant.” (People v. Castille (2003) 108 CA4th 469, 479 [underscoring added]; accord, e.g., People v. Hayes (99) 21 C4th 1211, 1257-1258; Durbin v. K-K-M Corp. (74) 220 NW2d 110, 117.) “[O]nce the defendant has expressly or impliedly adopted the statements of another, the statements become his own admissions . . . .” (People v. Turner (94) 8 C4th 137, 190 [italics in original].) An express adoptive admission might be, for example, express agreement with what an accuser or other third party said. (People v. Castille (2003) 108 CA4th 469, 480.) An implied adoptive admission might be, for example, a defendant’s silence in the face of an accusation during a voluntary conversation; the silence-qua-adoptive admission turns the accusations against the defendant into “his statements.” (People v. Trotter (84) 160 CA3d 1217, 1225 [italics omitted].) All of the above concords with the relevant definition of the word “adopt,” which is “[t]o make that one’s own (property or act) which was not so originally.” (Black’s Law Dictionary (6th ed. 1991), p. 49.)
In other words, as the above shows, both the law and the policy rationale underlying “adoptive admissions” of a defendant is that they are the admissions of the defendant. (See also, e.g., People v. Castille, supra, 108 CA4th at pp. 479-480 [adoptive admissions of the defendant satisfy Confrontation Clause requirements for hearsay exceptions in the same manner as admissions of the defendant, for the reason that adoptive admissions of the defendant areadmissions of the defendant].) They are thus as much subject to CJ 2.71 as any other admission.
See Brief Bank # B-970 for briefing on this issue.
