F 356 Miranda-Defective Statements

F 356 Miranda-Defective Statements

TABLE OF CONTENTS
F 356 Inst 1 Standard Of Proof For Foundational Fact
F 356 Inst 2 Unrecorded Oral Statement “Of Defendant“ Should Be Viewed Cautiously
F 356 Inst 3 Prior Inconsistent Statement Of Defendant In Violation Of Miranda

F 356 NOTES
F 356 Note 1 Un-Mirandized Statement: Sua Sponte Limiting Instructions
F 356 Note 2 Coerced Or Involuntary Statements Not Admissible for Impeachment
F 356 Note 3 Un-Mirandized Statements: Admissible For Impeachment
F 356 Note 4 Un-Mirandized Statement: Introduction By Prosecution To Impeach

Return to Series 300 Table of Contents.

F 356 Inst 1 Standard Of Proof For Preliminary Fact

*Modify CC 356, paragraph 2, sentence 1, as follows [added language is underlined; deleted language is stricken]:

If you conclude find it more likely than not that the defendant made this statement, you may consider it but only to help you decide whether to believe the defendant’s testimony. However, you may not rely on the statement to find any essential fact at issue in this trial or any element of the charge unless you unanimously find that all of the above requirements have been proven beyond a reasonable doubt.

Points and Authorities

This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]

Standard Of Proof Re: Preliminary Facts—See FORECITE F 103.2 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 5.8 [Preliminary Factual Finding: Non-Element]

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

F 356 Inst 2 Unrecorded Oral Statement “Of Defendant” Should Be Viewed Cautiously

*Modify CC 356, paragraph 3 as follows [added language is underlined]:

Alternative a:

[You should view an unrecorded oral statement of the defendant cautiously.]

Alternative b:

[You must consider with caution evidence of a defendant’s oral statement unless it was written or otherwise recorded.]

[Source: CALCRIM 358, paragraph 2.]

Points and Authorities

Without the above modification, the jurors might interpret its cautionary language to apply to oral statements of other witnesses. (Compare CALCRIM 358.)

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 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
FORECITE CG 5.8 [Preliminary Factual Finding: Non-Element]

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

F 356 Inst 3 Prior Inconsistent Statement Of Defendant In Violation Of Miranda

*Add to end of paragraph 2 of CC 356:

The prosecution must use other evidence to prove, beyond a reasonable doubt, that the defendant committed the crime.

[Fed. Jud. Ctr., Pattern Crim. Jury Instructions (1988), Inst. # 42, p. 52.]

Points and Authorities

In People v. Peevy (1998) 17 C4th 1184 the California Supreme Court held that statements that are a result of the police violating Miranda may not be used in the People’s case in chief, but may be used to impeach any testimony given by the defendant. (See also Harris v. New York (1971) 401 US 222 [28 LEd2d 1; 91 SCt 643].) Hence, such statements alone are not sufficient to convict. (See e.g., Fed. Jud. Ctr., Pattern Crim. Jury Instructions (1988), Inst. # 42, p. 52.)

Identification Of Parties.—See FORECITE F 100.2 Note 1.

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 2.13.1a.

(See also FORECITE F 370 Inst 8.)

F 356 NOTES

F 356 Note 1 Un-Mirandized Statement: Sua Sponte Limiting Instructions

There is a split in authority in California courts as to whether CJ 2.13.1 limiting the consideration of Miranda violative statements must be given sua sponte. (People v. Duncan (1988) 204 CA3d 613, 619-21 [sua sponte duty]; People v. Wyatt (1989) 215 CA3d 255, 258 [only required if requested]; see also People v. Baker (1990) 220 CA3d 574, 579; People v. Torrez (1995) 31 CA4th 1084, 1091 [CJ 2.13.1 must be requested but “it may be time for the California Supreme Court to revisit this issue” ].) However, there are two reasons why the failure to give CJ 2.13.1, even absent a request, is error. First, the federal rule which requires sua sponte instruction (Hinman v. McCarthy (9th Cir. 1982) 676 F2d 343, 349; see also Duran v. Stagner (N.D. Cal. 1985) 620 F Supp 803), should control because the California Supreme Court has held that Proposition 8 requires that “the Federal law must be applied as to the use of statements in violation of the Miranda rule ….” (People v. May (1988) 44 C3d 309, 313.)

Second, even if the court has no sua sponte duty to give CJ 2.13.1, if only the standard instructions regarding inconsistent statements and admissions are given (CJ 2.13 and CJ 2.71), then the effect of giving these two instructions, without excluding from consideration the illegally obtained statements, would be to inform the jury that such admissions could be considered on the issue of guilt. (See e.g., Duncan, 204 CA3d at 622.)

CALJIC NOTE: See FORECITE F 2.13.1 n1.

F 356 Note 2 Coerced or Involuntary Statements Not Admissible for Impeachment

While un-Mirandized statements are admissible for the purpose of impeaching the defendant’s reliability (Harris v. New York (1971) 401 US 222 [28 LEd2d 1; 91 SCt 643], coerced statements are inadmissible for all purposes. (Michigan v. Harvey (1990) 494 US 344, 350-51 [108 LEd2d 293; 110 SCt 1176]; People v. Bey (1993) 21 CA4th 1623, 1627-28.)

In People v. Peevy (1998) 17 C4th 1184, the California Supreme Court held that statements that are a result of the police violating Miranda may not be used in the People’s case in chief, but may be used to impeach any testimony given by the defendant. The court rejected any claim that a deliberate violation precludes use of the statement to impeach, but did not reach the issue of whether the Miranda violation rendered the statement coerced. The court also failed to decide if the result would be different if the police had a policy of violating Miranda. (See also People v. Neal (2003) 31 C4th 63 [excellent discussion of the threat and promise used by the officer to get the confession, and why these render the statement involuntary; also discusses the defendant’s low intelligence, lack of education, and inexperience in legal matters].)

CALJIC NOTE: See FORECITE F 2.13.1 n2.

F 356 Note 3 Un-Mirandized Statements: Admissible For Impeachment

In People v. Peevy (1998) 17 C4th 1184, the court held that statements obtained in violation of Miranda are admissible for impeachment purposes, even if Miranda was intentionally violated. However, the court did not reach the issue of whether the Miranda violation rendered the statement coerced. Peevy also failed to decide if the result would be different if the police had a policy of violating Miranda.

(See also FORECITE F 356 Note 2.)

CALJIC NOTE: See FORECITE F 2.13.1 n3.

F 356 Note 4 Un-Mirandized Statement: Introduction By Prosecution To Impeach

See FORECITE F 362 Note 14.

CALJIC NOTE: See FORECITE F 2.13.1 n4.