SERIES 300 EVIDENCE
F 371(A-1) Suppression Of Evidence: Preliminary Facts
TABLE OF CONTENTS
F 371(A-1) Inst 1 Title Modification In Light Of Preliminary Facts
F 371(A-1) Inst 2 Suppression Of Evidence: Required Preliminary Facts
F 371(A-1) Inst 3 (a & b) Suppression Of Evidence Must Be Willful Or Deliberate
F 371(A-1) Inst 4 Suppression Of Evidence Must Not Be Intended To Deflect Suspicion From Defendant And Not To Protect Another
F 371(A-1) Inst 5 Suppression Of Evidence Must Relate To Charged Crime
F 371(A-1) Inst 6 Suppression Of Evidence Must Occur After Charged Crime
F 371(A-1) Inst 7 Efforts By Others Than Defendant To Suppress Evidence—Authorization By Defendant As Preliminary Fact
F 371(A-1) Inst 8 Suppression Of Evidence: Defense Objection Precludes Instruction Which Benefits Defendant
Return to Series 300 Table of Contents.
F 371(A-1) Inst 1 Title Modification In Light Of Preliminary Facts
*Modify Title as follows [added language is underlined; deleted language is stricken]:
Consciousness of Guilt: Alleged Suppression and Fabrication of Evidence
Points and Authorities
See FORECITE F 362.1 Inst 1.
F 371(A-1) Inst 2 Suppression Of Evidence: Required Preliminary Facts
*Add to CC 371(A):
Alternative a [Evidence offered by prosecution: CALCRIM 376 & 1400 Format—Not Alone Sufficient To Convict]:
The prosecution alleges that the defendant [suppressed evidence] [_______________ <insert alleged act of suppression e.g., destroyed evidence>].
You must not consider this evidence for any purpose unless the prosecution has first proved the following preliminary facts by a preponderance of the evidence that:
1. The defendant _______________ <insert alleged act of suppression e.g., destroyed evidence>; AND
2. The defendant did so willfully and with the intent to avoid being charged with or accused of the crime; AND
3. The defendant did so because (he/she) [thought (he/she) had done something wrong] [had feelings of guilt]; AND
4. When the defendant [thought that he had done something wrong] [had feelings of guilt] it related to the charged crime.
[Insert other material preliminary facts.]
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 all [four] of the above preliminary facts have been proved, you must disregard, for all purposes, the alleged _______________ <insert alleged act of suppression e.g., destroyed evidence>.
If you [all] find the above preliminary fact to exist then you [may] [must] consider the alleged _______________ <insert alleged act of suppression e.g., destroyed evidence> in your deliberations. However, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of _______________ <insert charged offense>.
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.
Alternative b [No Specification Of Burden]:
Before considering the defendant’s [alleged suppression of evidence] [_______________ <insert alleged act of suppression e.g., destroyed evidence>], you must find that:
1. The defendant _______________ <insert alleged act of suppression e.g., destroyed evidence>; AND
2. The defendant did so willfully and with the intent to avoid being charged with or accused of the crime; AND
3. The defendant did so because (he/she) [thought (he/she) had done something wrong] [had feelings of guilt]; AND
4. If and when the defendant [thought that he had done something wrong] [had feelings of guilt] such [thought] [feelings] related to the charged crime.
Unless you find these preliminary facts to exist, you must disregard the alleged _______________ <insert alleged act of suppression e.g., destroyed evidence>.
Points and Authorities
Willful Intent To Deflect Suspicion From Himself/Herself As Preliminary Fact—Consciousness of guilt is a rational inference from furtive conduct if and only if the defendant intended to deflect suspicion from himself or herself. (See People v. Rankin (1992) 9 CA4th 430, 435-36; see also People v. Louis (1984) 159 CA3d 156, 160 [“The giving of CJ No. 2.03 is justified when there is evidence that a defendant fabricated a story to explain his conduct” ]; see also FORECITE F 362.1 Inst 1; F 362.1 Inst 7; F 371(A-1) Inst 4.)
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 a, 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 FORECITE F 105.2 Inst 1.
Propriety of Juror Unanimity As To Preliminary Facts.—See F 3500.3.1.
Not Alone Sufficient To Convict.—See FORECITE F 370 Inst 8.
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; see also CAVEAT 3 in FORECITE F 319 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 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 5.16 [Consciousness Of Guilt]
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 FORECITE 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.
F 371(A-1) Inst 3 (a & b) Suppression Of Evidence Must Be Willful Or Deliberate
*Modify CC 371(A) as follows [added language is underlined]:
Alternative a [No specification of burden]:
[If the defendant [willfully] [deliberately] tried to hide evidence or discourage someone from testifying against (him/her), that conduct may show that (he/she) was aware of (his/her) guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself.]
Alternative b [Preliminary Fact: CALCRIM 1400 & 376 Format—Not alone sufficient to convict]:
The prosecution contends that the defendant [suppressed] evidence.
You must not consider any such evidence, for any purpose, unless the prosecution has proved the following preliminary fact[s] by a preponderance of the evidence:
That the defendant willfully sought to [hide evidence] [prevent someone from testifying] [_______________ <insert alleged act of suppression e.g., destroyed evidence>].
[Insert other material preliminary facts.]
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 [all of the above] [this] preliminary fact[s] to exist, you must [disregard the defendant’s alleged [suppression] [fabrication] of evidence, for all purposes] [not consider the alleged [suppression] [fabrication] of evidence against the defendant].
If you [all] find the [all of] the above preliminary fact[s] to exist, then you may consider the alleged [suppression] [fabrication] of evidence [for the limited purpose of __________________] in your deliberations. However, such evidence is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of _________ <insert charged offense[s]>.
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
Willfulness As Preliminary Fact.—CALCRIM 371 is based on EC 413, which states that the trier of fact may consider a “willful” suppression of evidence in determining what inferences to draw from the evidence or facts of the case. Therefore, CC 371 should be modified to reflect the language contained in EC 413. (See also CJ 2.03 which requires that false statements be made “willfully” to raise a consciousness of guilt.) (See also CC 362.1 Inst 2.)
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 FORECITE F 105.2 Inst 1.
Propriety of Juror Unanimity As To Preliminary Facts.—See F 3500.3.1.
Not Alone Sufficient To Convict.—See FORECITE F 370 Inst 8.
Obligation Of Defendant To Prove Preliminary Fact Does Not Alter Prosecution’s Burden Of Proof.—See FORECITE F 100.1 Inst 1; see also CAVEAT 3 in FORECITE F 319 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 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 5.16 [Consciousness Of Guilt]
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 FORECITE 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.
See also FORECITE F 371(A-1) Inst 1; F 362.1 Inst 4.
CALJIC NOTE: See FORECITE F 2.06h.
F 371(A-1) Inst 4 Suppression Of Evidence Must Not Be Intended To Deflect Suspicion From Defendant And Not To Protect Another
See FORECITE F 362.1 Inst 4.
F 371(A-1) Inst 5 Suppression Of Evidence Must Relate To Charged Crime
See FORECITE F 362.1 Inst 5.
F 371(A-1) Inst 6 Suppression Of Evidence Must Occur After Charged Crime
See FORECITE F 362.1 Inst 6.
F 371(A-1) Inst 7 Efforts By Others Than Defendant To Suppress Evidence—Authorization By Defendant As Preliminary Fact
*Add to CC 371(A):
Alternative a [Preliminary Fact: CALCRIM 1400 & 376 Format—Not alone sufficient to convict]:
The prosecution contends that _______________ <name of other person> [suppressed] [fabricated] evidence for the defendant’s benefit.
You must not consider any such evidence, for any purpose, unless the prosecution has proved the following preliminary fact[s] by a preponderance of the evidence:
That the defendant authorized _______________ <name of other person> to [suppress] [fabricate] the evidence.
[Insert other material preliminary facts.]
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 [all of the above] [this] preliminary fact[s] to exist, you must [disregard the defendant’s alleged [suppression] [fabrication] of evidence, for all purposes] [not consider the alleged [suppression] [fabrication] of evidence against the defendant].
If you [all] find the [all of] the above preliminary fact[s] to exist, then you may consider the alleged [suppression] [fabrication] of evidence [for the limited purpose of __________________] in your deliberations. However, such evidence is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of _________ <insert charged offense[s]>.
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.
Alternative b [Optional specification of burden]:
If you find [it more likely than not] that an effort to suppress evidence was made by another person for the defendant’s benefit, you may not consider that evidence [for any purpose] [against the defendant] unless you also find [it more likely than not] that the defendant authorized such effort. If you do make the required findings, the significance, if any, is for you to decide. However, such evidence is not sufficient by itself to prove the defendant guilty.
Points and Authorities
Authorization As Preliminary Fact.—CALCRIM 371 (formerly CJ 2.05) is based on People v. Caruso (1959) 174 CA2d 624, 640-41 and People v. Perez (1959) 169 CA2d 473, 477-78, which caution that efforts by persons other than the defendant to fabricate evidence may not be considered against the defendant unless the defendant authorized the effort. However, both Caruso and Perez also apply to efforts by a third party to suppress evidence (Caruso 174 CA2d at 640; Perez 169 CA2d at 477; see also People v. Williams (1997) 16 C4th 153, 200-201 [defendant must authorize attempt by third person to suppress testimony; “mere opportunity” to authorize a third person to attempt to influence a witness “has no value as circumstantial evidence” that the defendant did so].)
Hence, an instruction requiring authorization as a preliminary fact for consideration of suppression of evidence by a third party is appropriate. (See EC 403 [facts necessary to establish relevance of evidence must be proven].)
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 a, 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 FORECITE F 105.2 Inst 1.
Propriety of Juror Unanimity As To Preliminary Facts.—See F 3500.3.1.
Not Alone Sufficient To Convict.—See FORECITE F 370 Inst 8.
Obligation Of Defendant To Prove Preliminary Fact Does Not Alter Prosecution’s Burden Of Proof.—See FORECITE F 100.1 Inst 1; see also CAVEAT 3 in FORECITE F 319 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 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 5.16 [Consciousness Of Guilt]
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 FORECITE 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 2.06f.
F 371(A-1) Inst 8 Suppression Of Evidence: Defense Objection Precludes Instruction Which Benefits Defendant
See FORECITE F 362.1 Inst 9.
