F 306 Untimely Disclosure Of Evidence

F 306 UNTIMELY DISCLOSURE OF EVIDENCE

TABLE OF CONTENTS

F 306 Inst 1 Defense Has No Obligation To Present Evidence
F 306 Inst 2 Failure To Timely Produce Evidence (PC 1054.5 (b))
F 306 Inst 3 Failure To Provide Discovery Is Not Alone Sufficient To Convict

F 306 NOTES
F 306 Note 1 Improper To Penalize Defendant For Counsel’s Discovery Violation
F 306 Note 2 Constitutional Challenge To Instruction Penalizing Defendant For Discovery Violation
F 306 Note 3 Argument Gambit: No Direct Inference Of Guilt Permitted
F 306 Note 4 Untimely Discovery: CJ 2.28 Disapproved

Return to Series 300 Table of Contents.

F 306 Inst 1 Defense Has No Obligation To Present Evidence

*Add at end of CC 306, paragraph 1, sentence 2:

Remember, however, the defense has no obligation to produce any evidence at all or to counter the prosecution’s evidence.

Points and Authorities

CALCRIM 306 improperly implies a defense obligation to produce evidence and to counter the prosecution’s evidence. (See FORECITE F 100 Inst 1.)

Identification Of Parties—See FORECITE F 100.2 Note 1.

WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:

FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge]
FORECITE CG 6.5 [Instructions Must Be Balanced Between Defense And Prosecution]

In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

F 306 Inst 2 Failure To Timely Produce Evidence (PC 1054.5 (b))

*Replace CC 306 as follows:

[Use CALJIC 2.28 (7th Edition).]

Points and Authorities

The CALJIC instruction better explains the issue. Since this is a discrete instructional issue there is no reason why CJ 2.28 cannot be used even though CALCRIM instructions are used for other issues. (See FORECITE PG XI(C) [Propriety Of Mixing CALJIC And CALCRIM].)

Identification Of Parties—See FORECITE F 100.2 Note 1.

In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

F 306 Inst 3 Failure To Provide Discovery Is Not Alone Sufficient To Convict

*Add to CC 306:

Any failure of the defense to comply with the rules of discovery is not sufficient by itself to prove guilt. The weight and significance of the circumstance, if any, are for you to decide.

[Source: E.g., CALJIC 2.03 and 2.52.]

Points and Authorities

It is questionable whether it is ever proper to instruct the jury to penalize the defendant for his or her counsel’s failure to provide discovery per PC 1054. (See FORECITE F 306 Note 1 and F 306 Note 2; FORECITE CG 1.11.)

However, even if such an instruction is given, it must caution the jury that the defendant’s deceptive or evasive conduct is not alone sufficient to prove guilt. (See FORECITE F 370 Inst 8.) Significantly, other instructions that address a defendant’s consciousness of guilt “ma[k]e clear to the jury that certain types of deceptive or evasive behavior on a defendant’s part could indicate consciousness of guilt, while also clarifying that such activity was not of itself sufficient to prove a defendant’s guilt….” (People v. Jackson (1996) 13 C4th 1164, 1224; see also People v. Lawson (2005) 131 CA4th 1242 [noting problems with CJ 2.28 and suggesting that CC 306 will cure them]; People v. Bell (2004) 118 CA4th 249, 256; see e.g., CJ 2.52, CC 370; CC 371; CC 372.)

Identification Of Parties—See FORECITE F 100.2 Note 1.

WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:

FORECITE CG 1.11 [Penalizing Defendant For Counsel’s Mistakes]
FORECITE CG 2.9 [Insufficient Evidence On Appeal]

In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

CALJIC NOTE: See FORECITE F 2.28a.

F 306 NOTES

F 306 Note 1 Improper To Penalize Defendant For Counsel’s Discovery Violation

Instruction on defense discovery violations, such as CALCRIM 306, is improper if the only evidence is that a third party made such an attempt, unless the evidence would also support a conclusion the defendant authorized the third party’s action. (See People v. Perez (1959) 169 CA2d 473, 477-478 [evidence that a third party tried to suppress testimony inadmissible unless there is also evidence that the third party acted with defendant’s approval].)

However, the instruction may be appropriate in circumstances where the jurors may conclude that a defendant has tried to present a contrived defense, but only if they find that the defendant was personally culpable for the discovery shortcoming. (See People v. Riggs (2008) 44 C4th 248, 307 [no error when defendant represented himself and thus any discovery violation was “his responsibility”].) The situation is analogous to attempts to fabricate evidence. A jury may be told that an attempt at fabrication by the defendant may show a consciousness of guilt. (See People v. Jackson (1996) 13 C4th 1164, 1224.)

Hence, it is error to allow the jurors to penalize the defendant for discovery violations of counsel. (See People v. Bell (2004) 118 CA4th 249, 257; People v. Saucedo (2004) 121 CA4th 937, 943; People v. Cabral (2004) 121 CA4th 748, 753. While these cases have relied on California law, it may also be argued that such an instruction violates the federal constitution. (See FORECITE F 306 Note 2.)

“More fundamentally [there is a question about] the appropriateness of injecting matters of compliance with pretrial procedure rules into the jury’s evaluation of the evidence and deliberations on substantive offenses. [PC 1054.5(b)] permits the court to ‘advise the jury of any failure or refusal to disclose and of any untimely disclosure,’ but [CJ] 2.28’s intimation that the opposing party was deprived of the ability to meet the belatedly disclosed evidence, its exhortation to the jury to consider the weight and significance of the late disclosure without guidance in that task, and its suggestion that the discovery violation is to be considered ‘against’ the defendant far exceed the statute’s limited authorization to ‘advise’ the jury of a discovery violation.” (People v. Saucedo (2004) 121 CA4th 937, 943; see also People v. Cabral (2004) 121 CA4th 748.)

See also Article Bank #A-99.

CALJIC NOTE: See FORECITE F 2.28 n2.

F 306 Note 2 Constitutional Challenge To Instruction Penalizing Defendant For Discovery Violation

“Jurors rely with great confidence on the fairness of judges, and upon the correctness of their view expressed during trials. [Citation.]” (People v. Lee (1979) 92 CA3d 707, 715-716.) “An important element of a fair trial is that a jury consider only relevant and competent evidence bearing on the issues of guilt or innocence.” (Bruton v. U.S. (1968) 391 US 123, 131, fn. 6 [20 LEd2d 476; 88 SCt 1620].) A judge’s false attribution of misconduct to the defendant is neither relevant nor competent evidence, and informing the jury that such “evidence” can be used adversely against the defendant is extremely unfair and prejudicial. (See e.g., People v. Hannon (1977) 19 C3d 588, 600 [suggestion that defendant threatened a witness implies a consciousness of guilt and thus is highly prejudicial and inadmissible unless adequately substantiated]; McKinney v. Rees (9th Cir 1993) 993 F2d 1378, 1380-82 [admission of defendant’s prior bad acts may violate the due process clause of the Federal Constitution (14th Amendment)].)

Moreover, CC 306 and CJ 2.28 interject arbitrariness into deliberations—punishing the defendant for something he or she had no part in doing. The instruction is analogous to an unconstitutional permissive inference instruction by falsely telling the jury that the defendant concealed evidence unlawfully and from that fact allowing the jury to make adverse inferences. No rational fact-finder could make such an evidentiary connection. This runs afoul of the constitutionally required burden on the State to prove guilt beyond a reasonable doubt. (See Ulster County Court v. Allen (1979) 442 US 140, 158 [60 LEd2d 777; 99 SCt 2213].) “[A] criminal statutory presumption must be regarded as ‘irrational’ or ‘arbitrary,’ and hence unconstitutional unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact upon which it is made to depend. [fn omitted].” (Leary v. U.S. (1969) 395 US 6, 36 [23 LEd2d 57; 89 SCt 1532]; see also, Ulster County at 165-66.)

The instruction is also akin to the introduction of false evidence into the trial. In California, that is prohibited under PC 1473(b)(1), and also generally by due process of law. (See Sanders v. Sullivan (2nd Cir. 1990) 900 F2d 601, 606-607 [“Few rules are more ‘central to an accurate determination of innocence or guilt’ … [than] … that one should not be convicted on false testimony”]; see also U.S. v. Young (9th Cir. 1994) 17 F3d 1201, 1203-04 [“A conviction based in part on false evidence, even false evidence presented in good faith, hardly comports with fundamental fairness.” ]; see generally Brady v Maryland (1963) 373 US 83 [10 LEd2d 215; 83 SCt 1194]; but see People v. Riggs (2008) 44 C4th 248, 310-11.)

Furthermore, to the extent that defense counsel’s mistake is the basis for penalizing the defendant with a consciousness of guilt instruction, counsel’s conduct would violate the defendant’s federal constitutional right to effective assistance of counsel. (U.S. Const., 6th and 14th Amendments; Strickland v. Washington (1984) 466 US 668 [80 LEd2d 674; 104 SCt 2052].)