SERIES 300 EVIDENCE
F 371(A-4) Suppression of Evidence: Reverse Instructions
TABLE OF CONTENTS
F 371(A-4) Inst 1 Absence Of Suppression Of Evidence
F 371(A-4) Inst 2 (a & c) Suppression Of Evidence By Third Party: Relevance To Third Party Guilt Defense Theory
F 371(A-4) Inst 3 Suppression Of Evidence By The Police Or Prosecution
F 371(A-4) Inst 4 Attempted Suppression Of Evidence Or Witness Intimidation By The Police Or Prosecution
F 371(A-4) Inst 5 Instruction As Sanction For Prosecution’s Loss Or Destruction Of Evidence Generally
F 371(A-4) Inst 6 Instruction As Sanction For Prosecution’s Loss Of Original Line Up Photos
F 371(A-4) Inst 7 Instruction As Sanction For Loss Of Alibi Witness Due To Prosecution’s Unjustified Delay
Return to Series 300 Table of Contents.
F 371(A-4) Inst 1 Absence Of Suppression Of Evidence
See FORECITE F 372.4 Inst 1 (a-d).
F 371(A-4) Inst 2 (a & c) Suppression Of Evidence By Third Party: Relevance To Third Party Guilt Defense Theory
*Add to or replace CC 371 when appropriate:
Alternative a [CALJIC 2.40 Format]:
An attempt by __________ <name of third party> to suppress evidence against [himself] [herself] may show a consciousness of guilt on the part of __________ <name of third party>. Such conduct may be sufficient by itself to leave you with a reasonable doubt as to the defendant’s guilt. However, its weight and significance, if any, are matters for your consideration.
Alternative b:
If you find [it more likely than not] that __________<name of suspected third party> [attempted to] [or] [did] persuade a witness to testify falsely or [attempted to [or] [did] suppress evidence to be produced at the trial, such conduct may show that ____________ [was aware of his guilt] [had a consciousness of guilt]. Such conduct may be sufficient by itself to leave you with a reasonable doubt as to the guilt of the defendant. However, its weight and significance, if any, are matters for your determination.
Points and Authorities
Right To Instruction.—It is well established that the defendant may rely upon the theory that a third party committed the charged offense. (People v. Edelbacher (1989) 47 C3d 983, 1017; People v. Hall (1986) 41 C3d 826, 833.) It is also well settled that the defendant has a right to pinpoint instructions upon his/her theory of the defense and upon the applicability of the burden of proof to that theory. (People v. Saille (1991) 54 C3d 1103, 1120; People v. Wright (1985) 45 C3d 1126, 1136-37; People v. Adrian (1982) 135 CA3d 335, 342; EC 502; FORECITE PG III (A) & PG III(D).) Therefore, when evidence of third-party culpability has been presented, the defense has a right to an instruction upon third-party culpability. (See FORECITE F 4.020.)
These same principles require that, if the evidence of third-party culpability theory includes consciousness of guilt on the part of the third party, then the standard consciousness of guilt instructions should be modified to pinpoint this theory of the defense.
(See also FORECITE F 362.4 Inst 2.)
Sufficient “By Itself” For A Reasonable Doubt.—See FORECITE F 301 Inst 13.
Whether To Add “More Likely Than Not.”—See FORECITE F 362 Inst 1 and CAVEATS.
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 6.5 [Instructions Must Be Balanced Between Defense and Prosecution]
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 2.06d.
F 371(A-4) Inst 3 Suppression Of Evidence By The Police Or Prosecution
*Add to or replace CC 371(A):
Evidence that the police [__________] <insert other appropriate agency, e.g., D.A.’s investigator> willfully suppressed __________ <insert evidence suppressed>, may permit you to draw an inference [that there was something damaging to the prosecution’s case in the suppressed evidence] [adverse to the prosecution].
Such an inference may reflect the prosecution’s recognition of the strength of the defendant’s case generally and/or the weakness of its own case. It may be sufficient, standing alone, to leave you with a reasonable doubt as to the defendant’s guilt.
Points and Authorities
Right To Instruction.—When the police have succeeded in suppressing evidence, the defense should be entitled to an appropriate instruction. EC 413 authorizes the trier of fact to consider a party’s “willful suppression of evidence.” (See BAJI 2.03.) Furthermore, suppression of evidence is a destruction of evidence which implicates 14th Amendment federal due process principles. (E.g., Banks v. Dretke (2004) 540 US 668 [157 LEd2d 1166; 124 SCt 1256] [prosecution failed to disclose the informant’s status and did not correct the informant’s false testimony]; Arizona v. Youngblood (1988) 488 US 51, 57-58 [102 LEd2d 281; 109 SCt 333]]; Kyles v. Whitley (1995) 514 US 419 [131 LEd2d 490; 115 SCt 1555]; In re Brown (1998) 17 C4th 873 [responsibility for a violation of Brady v. Maryland (1963) 373 US 83 [10 LEd2d 215; 83 SCt 1194] rests exclusively with the prosecution, including the duty to learn of any favorable evidence known to others acting on the government’s behalf, such as law enforcement persons working on the case]; see also U.S. v. LaPage (9th Cir. 2000) 231 F3d 488, 492 [failing to correct known perjured testimony is the same as eliciting it and requires reversal]; see also Commonwealth of the Northern Mariana Islands v. Bowie (9th Cir. 2001) 243 F3d 1109, 1122-24 [prosecutor had duty to investigate possibility that co-defendant testified falsely to receive leniency].)
The United States Supreme court has underscored the ‘special role played by the American prosecutor in the search for truth in criminal trials.’ (Banks v. Dretke (2004) 540 US 668 [157 LEd2d 1166, 1193; 124 SCt 1256] [when police or prosecutors conceal significant exculpatory or impeaching material in the State’s possession, it is ordinarily incumbent on the State to set the record straight; prosecutors are responsible for any favorable evidence known to others acting on the government’s behalf in the case, including the police; prosecution’s deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with rudimentary demands of justice]; Strickler v. Greene (1999) 527 US 263 at 281 [144 LEd2d 286; 119 SCt 1936]; accord, Kyles v. Whitley (1995) 514 US 419 at 439-440 [131 LEd2d 490; 115 SCt 1555]; United States v. Bagley (1985) 473 US 667, 675, n. 6 [87 LEd2d 481; 105 SCt 3375]; Berger v. United States (1935) 295 US 78 at 88 [79 LEd 1314; 55 SCt 629]; see also Olmstead v. United States (1928) 277 US 438, 484 [72 LEd 944; 48 SCt 564] (Brandeis, J., dissenting).) Courts, litigants, and juries properly anticipate that “obligations [to refrain from improper methods to secure a conviction] … plainly resting upon the prosecuting attorney, will be faithfully observed.” (Berger, 295 US 78 at 88 [79 LEd 1314; 55 SCt 629]; see also Banks, 124 SCt at 1274.)
The above instruction is adapted from an instruction in Bihun v. AT&T (1993) 13 CA4th 976, 992, which was held to be a correct statement of the law. (Id. at 994; see also, Donchin v. Guerrero (1995) 34 CA4th 1832 [jury may draw inferences from “consciousness of guilt” evidence in all types of cases against all parties, not just in criminal cases against defendants]; Deerings EC 413 “Suggested Forms.” ) In Bihun, the court observed that “spoliation” of evidence by a party entitles the other party to an instruction that “the adversary’s conduct may be considered as tending to corroborate the proponent’s case generally, and as tending to discredit the adversary’s case generally.” [Internal quote marks and emphasis omitted.] Surely if all civil litigants may obtain instruction upon suppression of evidence (see BAJI 2.03) and if the prosecution may obtain such an instruction when the defendant has suppressed evidence (CJ 2.06), it is only fair that the defendant in a criminal trial should be permitted to obtain such an instruction upon request when the prosecution or its agents have suppressed evidence. “There should be absolute impartiality as between the people and the defendant in the matter of instructions ….” (People v. Moore (1954) 43 C2d 517, 526-27; accord Reagan v. U.S. (1895) 157 US 301, 310 [39 LEd 709; 15 SCt 610]; see also Donchin v. Guerrero (1995) 34 CA4th 1832.) Donchin underscores the fact that a jury may draw inferences from “consciousness of guilt” evidence in all types of cases against all parties, not just in criminal cases against defendants. Hence, a jury should be able to draw inferences from “consciousness of guilt” evidence against police officers or the prosecution when there is evidence that they have lied or destroyed evidence. And in a like manner, a defendant should be entitled to a jury instruction on the issue when there is substantial evidence to support it.
(See also FORECITE [F 2.06c] [Attempted Suppression Of Evidence Or Witness Intimidation By The Police Or Prosecution].)
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 6.5 [Instructions Must Be Balanced Between Defense and Prosecution]
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 2.06b.
F 371(A-4) Inst 4 Attempted Suppression Of Evidence Or Witness Intimidation By The Police Or Prosecution
*Add to or replace CC 371(A):
Evidence that the police [__________] <insert other appropriate agency, e.g., D.A.’s investigator> attempted to suppress __________ <insert evidence suppressed>, may permit you to draw an inference [that there was something damaging to the prosecution’s case in the suppressed evidence] [adverse to the prosecution].
Such an inference may reflect the prosecution’s recognition of the strength of the defendant’s case generally and/or the weakness of its own case. It may be sufficient, standing alone, to leave you with a reasonable doubt as to the defendant’s guilt.
Points and Authorities
Right To Pinpoint Instruction.—See FORECITE F 315.1.2 Inst 2.
Right To Instruction.—When the police have intimidated a witness or otherwise attempted to suppress evidence, the defense should be entitled to an appropriate instruction. EC 413 authorizes the trier of fact to consider a party’s “willful suppression of evidence.” (See also BAJI 2.03.) And, willful suppression clearly includes witness intimidation. (See CJ 2.06.) Furthermore, suppression of evidence or witness intimidation by the police is an attempted destruction of evidence which implicates 14th Amendment federal due process principles. (E.g., Arizona v. Youngblood (1988) 488 US 51, 57-58 [102 LEd2d 281; 109 SCt 333].) Such a willful attempt to destroy evidence should authorize an instruction allowing the jury to draw an inference adverse to the prosecution. (See e.g., People v. Wimberly (1992) 5 CA4th 773, 793; see also Deerings EC 413 “Suggested Forms.” )
Sufficient By Itself For A Reasonable Doubt.—In light of the prosecution’s burden of proof, the adverse inference is sufficient by itself to leave the jury with a reasonable doubt as to guilt. (See People v. Wimberly (1992) 5 CA4th 773, 793.) The “standing alone” language was taken from CJ 2.40. (See also FORECITE F 301 Inst 13.)
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 6.5 [Instructions Must Be Balanced Between Defense and Prosecution]
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 2.06c.
F 371(A-4) Inst 5 Instruction As Sanction For Prosecution’s Loss Or Destruction Of Evidence Generally
See FORECITE F 2.014 n2 and n3.
F 371(A-4) Inst 6 Instruction As Sanction For Prosecution’s Loss Of Original Line Up Photos
See FORECITE F 315.1.1 Inst 6.
F 371(A-4) Inst 7 Instruction As Sanction For Loss Of Alibi Witness Due To Prosecution’s Unjustified Delay
*Add to CC 371 instructions when appropriate:
I instruct you that _______________ <insert alibi, e.g., defendant stayed with his brother between January 10 and 23, 2004>.
Even though there has been no formal testimony on this point, I now instruct you to consider it as a fact. _______________ <name of alibi witness> is not available to testify due to _______________ <insert reason, e.g., unjustified delay by the prosecution in filing a complaint against the defendant>.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
Propriety Of Instruction – See People v. Conrad (2006) 145 CA4th 1175, 1185-87; see also FORECITE F 315.1.1 Inst 6; F 2.014 n2 and n3.
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 4.5 [Right To Present Evidence And Fair Opportunity To Defend]
FORECITE CG 6.8 [Prosecution Misconduct: Lost Or Destroyed Evidence]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
