F 357 NOTES

TABLE OF CONTENTS
F 357 Note 1 Adoptive Admission: Distinction Between Pre-Arrest And Post-Arrest Silence
F 357 Note 2 Adoptive Admissions: Doyle Error Predicated On Inference Or Innuendo
F 357 Note 3 Comment On Defendant‘s Post-Arrest, Pre-Miranda Silence As Doyle Error Even If Defendant Later Waives The Privilege
F 357 Note 4 Comment On Defendant‘s Post-Arrest Demeanor As Doyle Error
F 357 Note 5 Adoptive Admission Instruction Required On Request But Not Sua Sponte
F 357 Note 6 Adoptive Admissions: Applicability To Group Interview Situation
F 357 Note 7 Adoptive Admission—Not Applicable To Exercise Of Fifth Amendment

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F 357 Note 1 Adoptive Admission: Distinction Between Pre-Arrest 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 (1982) 131 CA3d 155, 165; 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 (1976) 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 (1988) 45 C3d 744, 786.)

(See also FORECITE F 357 Note 3.)

CALJIC NOTE: See FORECITE F 2.71.5 n1.

F 357 Note 2 Adoptive Admissions: Doyle Error Predicated On Inference Or Innuendo

Doyle v. Ohio (1976) 426 US 610 [49 LEd2d 91; 96 SCt 2240] error does not require “an express testimonial basis.” (People v. Evans (1994) 25 CA4th 358, 370.) Hence, Doyle error may be predicated upon “inference or innuendo.” (Ibid.)

CALJIC NOTE: See FORECITE F 2.71.5 n2.

F 357 Note 3 Comment On Defendant’s Post-Arrest, Pre-Miranda Silence As Doyle Error Even If Defendant Later Waives The Privilege

Comment on post-arrest but pre-Miranda silence has been held to violate the 5th Amendment (Doyle v. Ohio (1976) 426 US 610 [49 LEd2d 91; 96 SCt 2240]. (See e.g., People v. Lopez (2005) 129 CA4th 1508, 1525 [a person’s invocation of his or her right to remain silent cannot be used as evidence of guilt].) This is so even if the defendant subsequently waived the privilege and gave a statement. (U.S. v. Velarde-Gomez (9th Cir. 2001) 269 F3d 1023, 1033-34; see also United States v. Whitehead (9th Cir. 2000) 200 F3d 634, 638 [fact of silence in the face of arrest without reference to Miranda warning could not be used as substantive evidence of guilt, because that would “act [] as an impermissible penalty on the exercise of the … right to remain silent”]; United States v. Moore (D.C. Cir. 1997) 104 F3d 377, 384-389 [government may not affirmatively use post-arrest silence as evidence of guilt, even where silence preceded Miranda warnings].)

CALJIC NOTE: See FORECITE F 2.71.5 n3.

F 357 Note 4 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].)

CALJIC NOTE: See FORECITE F 2.71.5 n4.

F 357 Note 5 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.)

CALJIC NOTE: See FORECITE F 2.71.5 n5.

F 357 Note 6 Adoptive Admissions: Applicability To Group Interview Situation

(See People v. Castille (2003) 108 CA4th 469 [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].)

CALJIC NOTE: See FORECITE F 2.71.5 n6.

F 357 Note 7 Adoptive Admission—Not Applicable To Exercise Of Fifth Amendment

See People v. Jennings (2003) 112 CA4th 459, 472-473 [when an arrestee is advised of his right to remain silent and he exercises that right in response to an official accusation, the doctrine of adoptive admissions does not apply].