SERIES 300 EVIDENCE
F 361 Failure to Explain or Deny Adverse Testimony
TABLE OF CONTENTS
F 361 Inst 1 Failure To Explain Or Deny, “If Any“
F 361 Inst 2 Prosecution Must Prove Every Essential Fact Beyond A Reasonable Doubt
F 361 Inst 3 Failure To Deny Or Explain: Applicability To All Witnesses
F 361 Inst 4 Failure To Deny Or Explain: Limitation To Testifying Defendant
F 361 Inst 5 Contradiction Is Not Failure To Explain
F 361 Inst 6 Failure To Deny Or Explain Applies To “Important“ Evidence
F 361 Inst 7 Failure To Deny Or Explain: Defendant Must Have Knowledge Of Basis For Denying Or Explaining
F 361 NOTES
F 361 Note 1 Failure To Explain Or Deny: Implausible Explanation
F 361 Note 2 Failure To Explain Or Deny: Constitutional Challenge
F 361 Note 3 Defendant Testifying: Privilege Against Self-Incrimination Is Not Waived As To Unrelated Pending Criminal Charges
F 361 Note 4 Improbable Explanation Does Not Justify Instruction
F 361 Note 5 Judge Should Be “Extremely Cautious” Before Giving Failure To Explain Or Deny Instruction
F 361 Note 6 Failure To Deny Or Explain Evidence Must Relate To A “Specific And Significant Defense Omission”
Return to Series 300 Table of Contents.
F 361 Inst 1 Failure To Explain Or Deny, “If Any”
*Modify CC 361, paragraph 2 [added language is underlined]:
If the defendant failed to explain or deny, it is up to you to decide the meaning and importance, if any, of that failure.
Points and Authorities
See FORECITE F 316(A) Inst 3.
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 5.8 [Preliminary Factual Finding: Non-Element]
FORECITE CG 5.15 [Failure To Explain Or Deny]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 361 Inst 2 Prosecution Must Prove Every Essential Fact Beyond A Reasonable Doubt
*Add to CC 361 after paragraph 1, sentence 3:
Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proven beyond a reasonable doubt.
Points and Authorities
Prosecution Must Prove Every Essential Fact.—See CALCRIM 376, paragraph 4; see also In re Winship (1970) 397 US 358 [25 LEd2d 368; 90 SCt 1068].
See also FORECITE F 103.2 Inst 2.
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 5.15 [Failure To Explain Or Deny]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 361 Inst 3 Failure To Deny Or Explain: Applicability To All Witnesses
*Modify CC 361 as follows:
[Replace all references to “defendant” so that the instruction applies to all “witnesses.” ]
Points and Authorities
CALCRIM 361, which instructs the jury regarding adverse inferences from the failure of the defendant to deny or explain evidence, relates to witness credibility. Therefore, an instruction on the failure to explain or deny evidence directed to all witnesses, as opposed to just the defendant, should be given when appropriate. (People v. Morris (1991) 53 C3d 152, 213; see also EC 413].)
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 5.15 [Failure To Explain Or Deny]
FORECITE CG 6.5 [Instructions Must Be Balanced Between Defense And Prosecution]
FORECITE CG 10.3 [Comment, Argument Or Undue Emphasis]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
NOTES
See People v. Haynes (1983) 148 CA3d 1117, 1119-20 [both parties must agree that this instruction be given].
CALJIC NOTE: See FORECITE F 2.62a.
F 361 Inst 4 Failure To Deny Or Explain: Limitation To Testifying Defendant
*Modify to CC 361, paragraph 1 and 2, to provide as follows [added language is underlined; deleted language is stricken]:
If the defendant _________ <insert name of defendant to which instruction applies> failed in (his/her) testimony to explain or deny evidence against (him/her), and if (he/she) could reasonably be expected to have done so based on what (he/she) knew, you may consider (his/her) failure to explain or deny in evaluating that evidence. Any such failure is not enough by itself to prove guilt. The People must still prove each element of the crime beyond a reasonable doubt.
If the defendant _________ <insert name of defendant to which instruction applies> failed to explain or deny, it is up to you to decide the meaning and importance of that failure.
Points and Authorities
In multiple defendant cases where one defendant has testified and another has not, CC 361 must be modified to avoid suggesting to the jury that the non-testifying defendant’s failure to deny or explain evidence may be used against him or her. Such an interpretation of the instruction would implicate the self-incrimination and due process principles of the state and federal constitution. (U.S. Const. 5th and 14th amendments; Calif Const. Article 1, §15; Griffin v. California (1965) 380 US 609 [14 LEd2d 106; 85 SCt 1229]; People v. Cabrellis (1967) 251 CA2d 681; see also EC 930.)
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 5.15 [Failure To Explain Or Deny]
FORECITE CG 6.6 [Balance Between Co-Defendants]
FORECITE CG 7.3 [Consideration Of Matters Not Admitted Into Evidence]
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 2.62b.
F 361 Inst 5 Contradiction Is Not Failure To Explain
*Add to CC 361 as follows:
A contradiction between the testimony of the defendant and a prosecution witness is not a failure to deny or explain evidence.
Points and Authorities
“[A] contradiction does not equate to a failure to explain or deny.” (People v. Kondor (1988) 200 CA3d 52, 57; see also People v. Saddler (1979) 24 C3d 671, 682; People v. Lamer (2003) 110 CA4th 1463, 1469 [a contradiction between the defendant’s testimony and other witnesses’ testimony does not constitute a failure to deny].)
To permit an impermissible inference of guilt from CALCRIM 361 would implicate the defendant’s federal (6th and 14th amendments) constitutional rights to trial by jury and due process. (See FORECITE PG VII.)
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 5.15 [Failure To Explain Or Deny]
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 2.62 n2.
F 361 Inst 6 Failure To Deny Or Explain Applies To “Important” Evidence
Alternative a:
*Modify CC 361, paragraph 1, sentence 1 as follows [added language is underlined]:
If the defendant failed in (his/her) testimony to explain or deny important evidence against (him/her), and if (he/she) could reasonably be expected to have done so based on what (he/she) knew, you may consider (his/her) failure to explain or deny in evaluating that evidence.
Alternative b [Evidence offered by prosecution: CALCRIM 224 and 376 Format—Essential Fact Must Be Proved Beyond A Reasonable Doubt]:
*Add to CC 361:
The prosecution contends that the defendant failed to explain or deny [certain evidence] [_______________ <insert specific evidence>].
You must not consider this evidence for any purpose unless the prosecution has proved the following preliminary fact by a preponderance of the evidence:
That the defendant was aware that the evidence (he/she) allegedly failed to deny or explain was important.
A fact is proved by a preponderance of the evidence if you find that it is more likely than not that the fact is true. This is a lesser burden of proof than proof beyond a reasonable doubt.
Unless [all of you] find that this preliminary fact to exist, you must disregard, for all purposes, the allegation that the defendant failed to deny or explain [certain evidence] [_______________ <insert specific evidence>].
If you [all] find the above preliminary fact to exist, then you may consider the prosecution’s allegation in your deliberations.
However, you must not rely on this allegation to find an essential fact or element of the charged offense[s] unless the prosecution has proved [the above preliminary fact beyond a reasonable doubt] [beyond a reasonable doubt that the defendant was aware that the evidence (he/she) allegedly failed to deny or explain was important.
Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.
Points and Authorities
Propriety Of Instruction That Evidence Not Explained or Denied Must Have Been “Important.”—CALCRIM 361 should be limited to the defendant’s failure to deny or explain “important” evidence. People v. Marks (1988) 45 C3d 1335, 1346, held that CJ 2.62 was improper where the defendant “did not fail to explain or deny any important evidence against him and … testified extensively to a version of the events that contradicted the prosecution’s case in all important respects.”
Propriety Of Preliminary Fact Instruction.—See EC 403; see also FORECITE F 319 Inst 1.
Preliminary Fact Must Be Proven Beyond A Reasonable Doubt Vis a Vis Essential Facts and Elements of the Offense.—The final paragraph of Alternative b, regarding proof of essential facts, is adapted from CALCRIM 224 and 376. (See also FORECITE F 103.2 Inst 1; FORECITE CG 2.2.)
Whether the Jurors “Must” Consider the Evidence After Finding the Preliminary Fact.—See F 105.2 Inst 1.
Propriety of Juror Unanimity As To Preliminary Facts.—See F 3500.3.1.
Obligation Of Defendant To Prove Preliminary Fact Does Not Alter Prosecution’s Burden Of Proof.—See CAVEAT 3 below; see also generally FORECITE F 100.1 Inst 1.
Not Alone Sufficient To Convict.—When the preliminary fact relates to evidence which is not alone sufficient to convict the preliminary fact instruction should assure that the jurors understand this. (See e.g., Alternative f, above.) See FORECITE PG XI(D) regarding the types of evidence which are not alone sufficient to convict. (See also, e.g., FORECITE F 362.3 Inst 2.)
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 5.7 [Preliminary Factual Finding As Element]
FORECITE CG 5.15 [Failure To Explain Or Deny]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
Unanimity Use Note.—If unanimity is not required, then the instructions should be directed toward individual jurors. Those finding preliminary fact can consider the evidence, those not finding it cannot. (See generally F 100.7 Inst 2.)
CAVEAT 1: Benefits And Risks Of Preliminary Fact Instruction.—Because they involve different standards of proof, preliminary fact instructions under EC 403 require careful strategic consideration. (See CAVEAT 1 in FORECITE F 319 Inst 1.)
CAVEAT 2: Burden Of Proof In EC 403 Instructions.—See CAVEAT 2 in FORECITE F 319 Inst 1.
CALJIC NOTE: See FORECITE F 2.62 n3.
F 361 Inst 7 Failure To Deny Or Explain: Defendant Must Have Knowledge Of Basis For Denying Or Explaining
Alternative a:
*Add to CC 361 [CALJIC 2.62 Format]:
If a defendant does not have the knowledge that [he] [she] would need to deny or to explain evidence against [him,] [her,] it would be unreasonable to draw an inference unfavorable to [him] [her] because of [his] [her] failure to deny or explain this evidence.
[Source: CALJIC 2.62, paragraph 4 (7th Ed. (2005)).]
Alternative b [Evidence offered by prosecution: CALCRIM 224 and 376 Format—Essential Fact Must Be Proved Beyond A Reasonable Doubt]:
The prosecution contends that the defendant failed to explain or deny [certain evidence] [_______________ <insert specific evidence>].
However, you must not consider this alleged failure to explain or deny for any purpose, unless the prosecution has proved the following preliminary fact by a preponderance of the evidence:
That the defendant had the knowledge needed to deny or explain the evidence.
A fact is proved by a preponderance of the evidence if you find that it is more likely than not that the fact is true. This is a lesser burden of proof than proof beyond a reasonable doubt.
Unless [all of you] find that this preliminary fact to exist, you must disregard, for all purposes, the allegation that the defendant failed to deny or explain [certain evidence] [_______________ <insert specific evidence>].
If you [all] find the above preliminary fact to exist, then you may consider the prosecution’s allegation in your deliberations.
However, you must not rely on this allegation to find an essential fact or element of the charged offense[s] unless the prosecution has proved [the above preliminary fact beyond a reasonable doubt] [beyond a reasonable doubt that] the defendant had the knowledge needed to deny or explain the evidence.
Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.
Points and Authorities
Defendant’s Knowledge As Prerequisite To The Asserted Inference.—“[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 County Court of Ulster County v. Allen (1979) 442 US 140, 187 [60 LEd2d 777; 99 SCt 2213] [“As long as it is clear that the presumption is not the sole and sufficient basis for a finding of guilt, it need only satisfy the [‘more likely than not’ ] test described in Leary.” ]; Hanna v. Riveland (9th Cir. 1996) 87 F3d 1034.) The defendant’s failure to deny or explain evidence without knowledge of the basis for doing so does not provide a rational basis for concluding that the defendant “more likely than not committed the crime.”
Accordingly, the judicially created inference of guilt created by CC 361.—which should be subjected to no less scrutiny than a statutory presumption (see U.S. v. Gainey (1965) 380 US 63, 66-67 [13 LEd2d 658; 85 SCt 754])—is unconstitutional without the above requested addition to CC 361.
Moreover, the defendant’s failure to deny or explain is simply not relevant unless the defendant had knowledge of the basis for making the denial or the explanation. Hence, any inference from such failure to explain or deny should be disregarded unless the predicate knowledge exists. See generally EC 403; cf., People v. Kronemyer (1987) 189 CA3d 314, 351]; People v. Humphries (1986) 185 CA3d 1315, 1334; People v. Simon (1986) 184 CA3d 125, 129-32.
Propriety Of Adding CALJIC Language To CALCRIM 361.—Because CJ 2.62 addresses knowledge, a subject not conveyed by CC 361, the CJ instruction should be considered. (See Calif. Rules of Court Rule 855(e).) The CALCRIM User’s Guide’s prohibition against mixing CALCRIM and CALJIC should not be controlling. (See FORECITE PG XI(C).)
Propriety Of Preliminary Fact Instruction.—See EC 403; see also FORECITE F 319 Inst 1.
Preliminary Fact Must Be Proven Beyond A Reasonable Doubt Vis a Vis Essential Facts and Elements of the Offense.—The final paragraph of Alternative b, regarding proof of essential facts, is adapted from CALCRIM 224 and 376. (See also FORECITE F 103.2 Inst 1; FORECITE CG 2.2.)
Whether the Jurors “Must” Consider the Evidence After Finding the Preliminary Fact.—See F 105.2 Inst 1.
Propriety of Juror Unanimity As To Preliminary Facts.—See F 3500.3.1.
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 2.3 [Prosecution’s Burden Of Proof: Irrational Permissive Inference]
FORECITE CG 5.7 [Preliminary Factual Finding As Element]
FORECITE CG 5.15 [Failure To Explain Or Deny]
FORECITE CG 7.4 [Juror Consideration Of Evidence For An Improper Purpose]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
Unanimity Use Note.—If unanimity is not required, then the instructions should be directed toward individual jurors. Those finding preliminary fact can consider the evidence, those not finding it cannot. (See generally F 100.7 Inst 2.)
CAVEAT 1: Benefits And Risks Of Preliminary Fact Instruction.—Because they involve different standards of proof, preliminary fact instructions under EC 403 require careful strategic consideration. (See CAVEAT 1 in FORECITE F 319 Inst 1.)
CAVEAT 2: Burden Of Proof In EC 403 Instructions.—See CAVEAT 2 in FORECITE F 319 Inst 1.
RESEARCH NOTE: See CLARAWEB Forum, “Warnings For CALCRIM 361.”
F 361 NOTES
F 361 Note 1 Failure To Explain Or Deny: Implausible Explanation
Some cases have approved of giving CC 361 when defendant’s explanation, though superficially accounting for his/her activities, “‘nevertheless seems bizarre or implausible ….'” (People v. Belmontes (1988) 45 C3d 744, 784, quoting People v. Mask (1986) 188 CA3d 450, 455.) Thus, while an implausible explanation does not warrant the giving of CC 361 in most instances, when the degree of implausibility is extreme or when the explanation itself is bizarre, CC 361 may be proper.
CALJIC NOTE: See FORECITE F 2.62 n1.
F 361 Note 2 Failure To Explain Or Deny: Constitutional Challenge
If justified by the evidence, CC 361 does not violate the defendant’s privilege against self-incrimination, deny him the presumption of innocence, nor violate due process. (People v. Saddler (1979) 24 C3d 671, 678.)
However, the issue may still be raised in federal court.
CALJIC NOTE: See FORECITE F 2.62 n4.
F 361 Note 3 Defendant Testifying: Privilege Against Self-Incrimination Is Not Waived As To Unrelated Pending Criminal Charges
When the defendant takes the stand in his or her own defense, the privilege against self-incrimination is generally waived as to most matters. However, the privilege is not waived as to unrelated, uncharged conduct (as opposed to prior criminal conviction) and, therefore, the prosecution should not be permitted to question the defendant about pending criminal charges (People v. Matz DEPUBLISHED (1998) 68 CA4th 1216) nor does an offer of immunity by the prosecutor protect the defendant in the same way as the constitutional privilege against self-incrimination. (Ibid.)
CALJIC NOTE: See FORECITE F 2.62 n5.
F 361 Note 4 Improbable Explanation Does Not Justify Instruction
(See People v. Kondor (1988) 200 CA3d 52, 57; see also People v. Braxton (2002) 103 CA4th 471.)
(See also FORECITE F 361 Inst 5.)
CALJIC NOTE: See FORECITE F 2.62 n6.
F 361 Note 5 Judge Should Be “Extremely Cautious” Before Giving Failure To Explain Or Deny Instruction
See Levenson & Ricciardulli, California Criminal Jury Instruction Handbook (West 2012-2013), § 6:7, Authors’ Notes, pp. 376.
F 361 Note 6 Failure To Deny Or Explain Evidence Must Relate To A “Specific And Significant Defense Omission”
Case law cautions that an instruction on a defendant’s failure to explain or deny evidence against him “should not even be requested by either side unless there is some specific and significant defense omission that the prosecution wishes to stress or the defense wishes to mitigate.” (People v. Haynes (1983) 148 CA3d 1117, 1120; see also People v. Marks (1988) 45 C3d 1335, 1346 [questioning appropriateness of such an instruction when defendant “did not fail to explain or to deny any important evidence against him and . . . testified extensively to a version of the events that contradicted the prosecution’s case in all important respects”].)
For example, CC 361 should not be given when the prosecution’s theory as to the unexplained evidence is tenuous and speculative. (See, e.g., People v. Stamps UNPUB’D (2011, A126440) 2011 Cal. App. Unpub. LEXIS 3200.)
