SERIES 300 EVIDENCE
F 371(A) NOTES
TABLE OF CONTENTS
F 371(A) Note 1 Suppression of Evidence: Improper Pinpoint Instruction
F 371(A) Note 2 Consideration Of Witness‘s Fear
F 371(A) Note 3 Suppressing Evidence: Change of Appearance
F 371(A) Note 4 Consciousness of Guilt From Defendant‘s Refusal to Submit to Blood Test
F 371(A) Note 5 Suppression of Evidence: Refusal to Participate in Lineup
F 371(A) Note 6 Suppression of Evidence: When Defendant Doesn‘t Contest Identity
F 371(A) Note 7 Lack Of Consciousness Of Guilt Required By Due Process
F 371(A) Note 8 Instruction Regarding Jury‘s Consideration Of Evidence Not Timely Disclosed By The Defense
F 371(A) Note 9 False Statement May Provide Basis For Both Suppression Of Evidence (CC 371) And False Statement (CC 362) Instructions
F 371(A) Note 10 Consciousness Of Guilt As Improper Comment On The Evidence
F 371(A) Note 11 Suppression Of Evidence By Police Or Prosecution: Evidence Undermining The Credibility Of Prosecution Witnesses
F 371(A) Note 12 Instruction On Consciousness Of Guilt Inference Improper Without Supporting Evidence
F 371(A) Note 13 Challenge To Consciousness Of Guilt Instructions As Duplicative Of Circumstantial Evidence Instruction
Return to Series 300 Table of Contents.
F 371(A) Note 1 Suppression of Evidence: Improper Pinpoint Instruction
CALCRIM 371 is subject to objection based on the fact that it improperly pinpoints the prosecution’s evidence. (See FORECITE F 362 Note 6.)
ALERT: See FORECITE F 362 Notes regarding false statements for other issues which may also apply to suppression of evidence.
CALJIC NOTE: See FORECITE F 2.06 n1.
F 371(A) Note 2 Consideration Of Witness’s Fear
Evidence that a defendant has threatened a witness implies a consciousness of guilt and is thus highly prejudicial and admissible only if adequately substantiated. (People v. Valdez (2004) 32 C4th 73, 137; People v. Warren (1988) 45 C3d 471, 481.) However, evidence that a witness is afraid to testify is relevant to the credibility of that witness and, therefore, admissible. (Ibid.; see also Dudley v. Duckworth (7th Cir. 1988) 854 F2d 967, 972 [fundamentally unfair for trial court not to strike extended testimony by prosecution witness that he had received anonymous telephone calls causing him to fear for his family’s safety should he testify]; People v. Williams (1997) 16 C4th 153, 208.)
If evidence of a witness’s fear is admitted, counsel may wish to consider a limiting instruction which precludes the jury from considering that the witness’s fear was the product of intimidation by the defendant or a third person authorized by the defendant. (See Williams, 16 C4th at 212 [distinguishing Dudley v. Duckworth on the basis that the trial court failed there to admonish the jury to disregard testimony about unattributed threats]; see e.g., FORECITE F 2.010a.) Of course, any such limiting instruction would have to be considered in light of the caveat that such an instruction could actually highlight, rather than reduce, the prejudice. (See FORECITE PG X(e)(19); F 355 Inst 4.)
ALERT: See FORECITE F 362 Notes regarding false statements for other issues which may also apply to suppression of evidence.
CALJIC NOTE: See FORECITE F 2.06 n2.
F 371(A) Note 3 Suppressing Evidence: Change of Appearance
Specific reference to the defendant’s “change of appearance” does not create an improper pinpoint instruction. (People v. Randle (1992) 8 CA4th 1023, 1036-37; see also People v. Fitzpatrick (1992) 2 CA4th 1285, 1296-1297.) The Randle court held that such tailoring of the instruction referred only to “the generic type of consciousness of guilt disclosed by the evidence.” (Randle, 8 CA4th at 1037.) The court noted that “[a] contrary conclusion might have been reached if the trial court had specifically directed the jury’s attention to the change of hairstyle or the missing shirt.” (Id. at 1036-37.)
NOTE: Randle‘s distinction between “generic” and “specific” facts could prove useful when attempting to craft defense-oriented pinpoint instructions. So long as the instruction characterizes the evidence in a “generic” form, the instruction should be proper under the reasoning of Randle.
ALERT: See FORECITE F 362 Notes regarding false statements for other issues which may also apply to suppression of evidence.
CALJIC NOTE: See FORECITE F 2.06 n3.
F 371(A) Note 4 Consciousness Of Guilt From Defendant’s Refusal To Submit To Blood Test
A. Fifth Amendment.—In People v. Roberts (1992) 2 C4th 271, 310-311, the court held that it was not Fifth Amendment error to instruct the jury that it could infer consciousness of guilt from the defendant’s refusal to take a blood test. (But see FORECITE F 2130 Note 6 [discussing cases from other jurisdictions].)
B. Fourth Amendment.—The Fourth Amendment’s prohibition of unreasonable searches and seizures requires that there be probable cause for arrest before a defendant forfeits his right to refuse a blood test. (Schmerber v. California (1966) 384 US 757 at 768-70 [16 LEd2d 908; 86 SCt 1826]; see also Burnett v. Anchorage (9th Cir. 1986) 806 F2d 1447, 1451 [defendant may challenge evidence of his refusal to submit to a breath test by attacking the validity of the arrest].) Roberts indicated that if the record had established that the defendant refused to take the blood test for reasons within the scope of the 4th Amendment, the propriety of the consciousness of guilt instruction “might require more scrutiny.” Hence, if it can be proven that the blood test would have violated the defendant’s 4th Amendment rights, it would improperly chill the exercise of those rights to instruct the jury upon consciousness of guilt. If the defendant refused to take the blood test for reasons within the scope of the 4th Amendment, this should be put on the record as a basis for objecting to the instruction. (See People v. Wood (2002) 103 CA4th 803 [testimony that defendant refused search without a warrant unconstitutionally punished him for invoking his 4th Amendment rights]; People v. Fiscalini (1991) 228 CA3d 1639 [extraction of blood was unreasonable seizure because defendant had already submitted to urine test which was functional equivalent of blood test]; see also Nelson v. City of Irvine (1998 9th Cir.) 143 F3d 1196 [drunk driving suspect who submits to breath test has 4th Amendment right against forcible taking of blood for blood test]; but see People v. Wilson (2003) 114 CA4th 953 [defendant’s voluntary submission to preliminary alcohol screening (PAS) test did not satisfy requirement that he submit to blood alcohol level test after arrest, distinguishing People v. Williams (2002) 28 C4th 408 and People v. Fiscalini].)
C. Defendant’s Mistaken Reliance On Rights To Negate Consciousness Of Guilt.—“Whatever the merits of this line of reasoning [that refusal to provide non-testimonial evidence does not violate the 5th Amendment], we think it is inapplicable to cases where the defendant refuses to consent to a search which he mistakenly believes to be illegal.” (Elson v. State (AK 1983) 659 P2d 1195, 1199.) Even if no constitutional rights were violated, the defendant’s subjective reliance upon his/her constitutional rights provides a non-culpable explanation for his/her refusal. If this is the case, the jury should be required to make a preliminary finding that the defendant was not relying on his/her constitutional rights. (See e.g., FORECITE F 2.52a; EC 403(a).) This may also be a matter for argument.
ALERT: See FORECITE F 362 Notes regarding false statements for other issues which may also apply to suppression of evidence.
CALJIC NOTE: See FORECITE F 2.06 n4.
F 371(A) Note 5 Suppression of Evidence: Refusal to Participate in Lineup
In People v. Johnson (1992) 3 C4th 1183, 1235-36, the court held that it is not erroneous to instruct the jury that the defendant’s failure to participate in the lineup may be a circumstance tending to show a consciousness of guilt. (See also People v. Sudduth (1966) 65 C2d 543, 546-547 [refusal to give breath sample]; People v. Huston (1989) 210 CA3d 192, 218 [refusal to give urine sample]; but see Goodwin v. Superior Court (2001) 90 CA4th 215 [court may not compel a person to be in a lineup before commencement of criminal proceedings].)
PRACTICE NOTE: If the only evidence of consciousness of guilt is the defendant’s failure to participate in the lineup etc. then, to limit jury speculation as to whether defendant suppressed other evidence, counsel may wish to request modification of the first sentence of CJ 2.06 to provide as follows: “if you find that the defendant refused to participate in the lineup ….” While Johnson rejects the argument that the trial judge must make such a modification sua sponte (Johnson, 3 C4th at 1235-36), it does not preclude the modification upon request. Upon request, the defense should be able to limit the instruction to the specific factors which are applicable.
ALERT: See FORECITE F 362 Notes regarding false statements for other issues which may also apply to suppression of evidence.
CALJIC NOTE: See FORECITE F 2.06 n5.
F 371(A) Note 6 Suppression of Evidence: When Defendant Doesn’t Contest Identity
The defendant’s false statements and/or suppression or refusal to provide evidence warrants the giving of a consciousness of guilt instruction even if the defendant only contests intent to kill at trial. (People v. Clark (1993) 5 C4th 950, 1022.)
However, there remains a federal constitutional issue as to whether the nature or degree of guilt may be rationally inferred from consciousness of guilt evidence. (See FORECITE F 371(A-2) Inst 2 and FORECITE F 376 Inst 2; see also People v. Crandell (1988) 46 C3d 833, 871 [“[a] reasonable juror would understand ‘consciousness of guilt’ to mean ‘conscious of some wrongdoing’ rather than ‘consciousness of having committed the specific offense charged.’ ” ].)
ALERT: See FORECITE F 362 Notes regarding false statements for other issues which may also apply to suppression of evidence.
CALJIC NOTE: See FORECITE F 2.06 n6.
F 371(A) Note 7 Lack Of Consciousness Of Guilt Required By Due Process
See FORECITE F 372.4 Inst 1.
F 371(A) Note 8 Instruction Regarding Jury‘s Consideration Of Evidence Not Timely Disclosed By The Defense
PC 1054.3 requires disclosure of evidence and witnesses by the defense to the prosecution. PC 1054.5 permits various sanctions against the defense including advising the jury of any failure or refusal to disclose, and of any untimely disclosure.
However, such an instruction may abridge the defendant’s federal constitutional rights to due process, compulsory process and trial by jury (6th and 14th Amendments) if it suggests that the evidence should be viewed with caution or disregarded. In Washington v. Texas (1967) 388 US 14 [18 LEd2d 1019; 87 SCt 1920] the court held that the right to compulsory process is applicable to the states. Taylor v. Illinois (1988) 484 US 400 [98 LEd2d 798; 108 SCt 646] held that the 6th Amendment right to compulsory process may be offended by a discovery sanction which entirely excludes the testimony of a material defense witness. (Taylor, 484 US at 409.) In determining what sanction to impose, the court must consider the prejudice to the truth-determining function of the trial process and whether the failure to comply was “willful and motivated by a desire to obtain a tactical advantage.” (Taylor, 484 US at 415; see also Michigan v. Lucas (1991) 500 US 145 [114 LEd2d 205; 111 SCt 1743] [preclusion sanction may be imposed but is the exception rather than the rule].) Hence, preclusion sanctions “should be reserved to those cases in which the record demonstrates a willful and deliberate violation which was motivated by a desire to obtain a tactical advantage at trial such as the plan to present fabricated testimony in Taylor.” (People v. Edwards (1993) 17 CA4th 1248, 1263; see also McGinty v. Superior Court (1994) 26 CA4th 204, 215; People v. Gonzales (1994) 22 CA4th 1744.) [See Brief Bank # B-707for additional briefing on this issue.]
ALERT: See FORECITE F 362 Notes regarding false statements for other issues which may also apply to suppression of evidence.
CALJIC NOTE: See FORECITE F 2.06 n8.
F 371(A) Note 9 False Statement May Provide Basis For Both Suppression Of Evidence (CC 371) And False Statement (CC 362) Instructions
People v. Jackson (1996) 13 C4th 1164, 1225 held that the defendant’s false statement regarding the presence of evidence in his room justifies the giving of CJ 2.06 regarding an attempt to suppress evidence as well as CJ 2.03 regarding a false or deliberately misleading statement. The court held that CJ 2.03 concerns a broad class of deceptive statements, while CJ 2.06 concerns a narrower but overlapping category of “particularly telling deceptions.” (Jackson, 13 C4th at 1225.) Accordingly, there is no reason why a false statement designed to conceal inculpatory evidence cannot be the basis for the giving of both of these instructions. (Ibid.)
But see FORECITE F 371(A-3) Inst 2.
ALERT: See FORECITE F 362 Notes regarding false statements for other issues which may also apply to suppression of evidence.
CALJIC NOTE: See FORECITE F 2.06 n9.
F 371(A) Note 10 Consciousness Of Guilt As Improper Comment On The Evidence
See FORECITE F 372 Note 10.
F 371(A) Note 11 Suppression Of Evidence By Police Or Prosecution: Evidence Undermining The Credibility Of Prosecution Witnesses
In order to find a violation of Brady v. Maryland [(1963) 373 US 83], the defense must prove three elements: (1) the prosecutor has suppressed or withheld evidence; (2) the evidence is favorable to the defense; and (3) the evidence is material to the defense. (Moore v. Illinois (1972) 408 US 786 [33 LEd2d 706; 92 SCt 2562]; In re Pratt (1999) 69 CA4th 1294, 1312.) Evidence favorable to the defense includes evidence which undermines the credibility of a prosecution witness. (United States v. Bagley (1985) 473 US 667, 676 [87 LEd2d 481; 105 SCt 3375]; United States v. Gordon (9th Cir. 1988) 844 F2d 1397, 1403; In re Pratt (1999) 69 CA4th 1294, 1315-16; People v. Martinez (2002) 103 CA4th 1071, 1078-79.)
ALERT: See FORECITE F 362 Notes regarding false statements for other issues which may also apply to suppression of evidence.
CALJIC NOTE: See FORECITE F 2.06 n11.
F 371(A) Note 12 Instruction On Consciousness Of Guilt Inference Improper Without Supporting Evidence
(See FORECITE PG VII(C)(7.1).)
F 371(A) Note 13 Challenge To Consciousness Of Guilt Instructions As Duplicative Of Circumstantial Evidence Instruction
For a potential challenge to consciousness of guilt instructions on the basis that it is merely a restatement of the general circumstantial evidence instruction, see FORECITE PG VII(C)(9.1).
CALJIC NOTE: See FORECITE F 2.04 n5.
