SERIES 300 EVIDENCE
F 362.2 False Statements: Limiting Instructions
TABLE OF CONTENTS
F 362.2 Inst 1 Falsehood: May Show That Defendant Thought He Or She Had Done Something Wrong Or Had “Feelings Of Guilt“—Not That Defendant Was “Aware Of His Or Her Guilt“
F 362.2 Inst 2 Falsehood: Inapplicable To Nature Or Degree Of Guilt
F 362.2 Inst 3 False Statements Not Applicable To All Charged Offenses
F 362.2 Inst 4 False Statements: Limitation To Applicable Co-Defendant
F 362.2 Inst 5 False Statements: Jury Not To Consider False Statement Of Uncharged Accomplice As To Defendant
F 362.2 Inst 6 Consciousness of Guilt Only Applicable To False Statements Made Before Trial
Return to Series 300 Table of Contents.
F 362.2 Inst 1 Falsehood: May Show That Defendant Thought He Or She Had Done Something Wrong Or Had “Feelings Of Guilt”—Not That Defendant Was “Aware Of His Or Her Guilt”
*Modify CC 362, paragraph 1, sentence 1 as follows [added language is underlined; deleted language is stricken]:
If [the] defendant [ __________ <insert name of defendant when multiple defendants on trial>] made a false or misleading statement relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show (he/she) was aware of (his/her) guilt of the crime [thought (he/she) did something wrong] [had feelings of guilt] and you may consider it in determining (his/her) guilt.
Points and Authorities
See FORECITE F 371(A-1) Inst 1.
F 362.2 Inst 2 Falsehood: Inapplicable To Nature Or Degree Of Guilt
*Add to CC 362:
The defendant’s alleged false statement[s] [is] [are] only relevant, if at all, on the questions of whether the defendant was afraid of being apprehended and whether the defendant thought [he] [she] had done something wrong. Such statement[s] may not be considered [in determining the degree of defendant’s guilt] [or] [in determining which of the charged offenses, if any, the defendant committed].
Points and Authorities
See FORECITE F 371(A-2) Inst 2.
CALJIC NOTE: See FORECITE F 2.03b.
F 362.2 Inst 3 False Statements Not Applicable To All Charged Offenses
See FORECITE F 372.2 Inst 3.
F 362.2 Inst 4 False Statements: Limitation To Applicable Co-Defendant
See FORECITE F 372.2 Inst 4.
F 362.2 Inst 5 False Statements: Jury Not To Consider False Statement Of Uncharged Accomplice As To Defendant
See FORECITE F 372.2 Inst 5.
F 362.2 Inst 6 Consciousness Of Guilt Only Applicable To False Statements Made Before Trial
*CALCRIM REVISION ALERT: On August 14, 2009 CC 362 was revised to address this issue.
*Modify CC 362, beginning of sentence 1, as follows [added language is underlined]:
If, prior to trial [the] defendant [ _______________ <insert name of defendant when multiple defendants on trial>] willfully and with the intent to avoid being charged with or accused of a crime, made a false or misleading statement relating to the charged crime, . . .
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank #CCM-001.]
False Statement Must Be Made Prior To Trial – Without explanation the CALCRIM Committee fundamentally changed the false statements instruction by eliminating the requirement in CJ 2.03 that the false statement be made “before this trial. . . .” (CJ 2.03; see also People v. Green (1980) 27 C3d 1, 40.) Given the fact that CJ 2.03 was approved by a long line of reviewing courts (see e.g., People v. Green, supra, 27 C3d at 40; People v. Kane (1984) 150 CA3d 523, 533 [2nd Appellate District]; People v. Louis (1984) 159 CA3d 156, 161 [5th Appellate District]; People v. Ryan (1981) 116 CA3d 168, 178-79), CC 362 should be modified to apply only to pretrial statements. (See People v. Beyah (2009) 170 CA4th 1241, 1251 [“we do not endorse the use of CALCRIM No. 362 when the basis for an inference of guilt is false or misleading statements in a defendant’s trial testimony, rather than false or misleading statements made prior to trial”]; cf., People v. Green (1980) 27 C3d 1, 40 [CJ 2.03 should not be given when the defendant testifies in a manner consistent with his pretrial statements; People v. Edwards (1992) 8 CA4th 1092, 1103-04 [CJ 2.03 applies to “a defendant’s pretrial statement” which suggests he “prefabricated a story to explain his conduct”].)
In sum, because CJ 2.03 is “a correct statement of the law” (People v. Edwards, supra, 8 CA4th at 1104) its requirement that the false statement be made prior to trial should also be included in CC 362.
Statement Must Be Made Willfully And With Intent to Avoid Being Charged With Or Accused Of A Crime – See FORECITE F 362.1 Inst 2 and Inst 3.
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 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 5.16 [Consciousness Of Guilt]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
PRACTICE NOTE: Because the proposed modification is an accurate statement of the law, if the request is denied by the trial court, counsel should be permitted to argue the matter to the jury. Such argument may explain that no additional instruction was given on the issue because it is assumed that the jury will understand the standard instruction to prohibit the consideration of flight as to issues other than identity. (See FORECITE F 200.5 Inst 3.)
