SERIES 300 EVIDENCE
F 372 NOTES
TABLE OF CONTENTS
F 372 Note 1 Improper Flight Instruction Violates Federal Constitution
F 372 Note 2 Knowledge Of Accusation As Prerequisite To Flight Instruction
F 372 Note 3 Flight Instruction Improper Where No Intent To Avoid Observation Or Arrest
F 372 Note 4 Improper Factual Basis For Flight Should Be Stricken
F 372 Note 5 Applicability Of Flight Instruction To Escape Charge
F 372 Note 6 Prejudicial Impact Of Erroneous Instruction On Flight
F 372 Note 7 Defendant Should Be Able To Waive Giving Of Flight Instruction Since Its Purpose Is To Protect The Defendant
F 372 Note 8 Flight: Instruction As Impermissible Inference
F 372 Note 9 Challenge To Other Consciousness Of Guilt And Other Permissive Inference Instructions As Duplicative Of Circumstantial Evidence Instruction
F 372 Note 10 Consciousness Of Guilt As Improper Comment On The Evidence
F 372 Note 11 Instruction On Consciousness Of Guilt Inference Improper Without Supporting Evidence
F 372 Note 12 Flight Instruction: Objection By Defendant Precludes Cautionary/Limiting Instruction Which Benefits The Defendant
F 372 Note 13 Merely Leaving A Location Does Not Justify A Flight Instruction
F 372 Note 14 Flight Used For Accessory Charge Does Not Warrant Flight Instruction (E.g., CC 372)
Return to Series 300 Table of Contents.
F 372 Note 1 Improper Flight Instruction Violates Federal Constitution
See FORECITE CG 5.16 [Consciousness Of Guilt].
CALJIC NOTE: See FORECITE F 2.52 n1.
F 372 Note 2 Knowledge Of Accusation As Prerequisite To Flight Instruction
At common law, the jury could not be instructed upon flight unless there was evidence that before the defendant fled, he or she knew that he/she had been accused of the crime. (People v. Hill (1967) 67 CA2d 105, 120-21.) However, PC 1127c eliminated this common law requirement and permits instruction upon flight whenever evidence of flight is relied on to show guilt. (People v. Pensinger (1991) 52 C3d 1210, 1243.)
Despite PC 1127c, it may be argued that unless a defendant has knowledge of both the fact that the crime was committed and that he/she may be accused of that crime, any inference of guilt from flight would be irrational in violation of federal due process. (Fourteenth Amendment; County Court of Ulster County v. Allen (1979) 442 US 140, 157, 165 [60 LEd2d 777; 99 SCt 2213]; see also FORECITE PG VII (C)(9).) Although this argument was rejected in Pensinger, 52 C3d at 1243-44, it may still be viable in federal court.
Moreover, even if due process does not require knowledge when the defendant immediately flees the scene of a crime, at a minimum, knowledge should be required when consciousness of guilt is alleged based upon subsequent flight, such as a failure to make a court appearance. Pensinger specifically acknowledged this distinction and limited its holding to a situation where “a person flees immediately after a crime to avoid detection …” (Pensinger, 52 C3d at 1244; see also U.S. v. Hernandez-Miranda (9th Cir. 1979) 601 F2d 1104, 1106-07 [relevancy of non-immediate flight depends on whether the defendant “knew about the charges against him” ].)
NOTE: Negation Of Knowledge By Intoxication, Mental Impairment, Etc.—To the extent that knowledge is a necessary component of the relevance of flight evidence, it is logical that factors such as intoxication, mental impairment and the like which may negate knowledge should be considered by the jury in determining whether the defendant’s knowledge was sufficient to create an inference of consciousness of guilt from flight. (See FORECITE F 3426 Inst 5.)
CALJIC NOTE: See FORECITE F 2.52 n2.
F 372 Note 3 Flight Instruction Improper Where No Intent To Avoid Observation Or Arrest
The Bench Notes and Authority for CALCRIM 372 states that where evidence of flight is relied upon as tending to show guilt, CC 372 must be given sua sponte as required by PC 1127c. However, in People v. Crandell (1988) 46 C3d 833, 869-70, the Supreme Court concluded that flight “manifestly” requires “a purpose to avoid being observed or arrested.” (Id. at 869.) Hence, it is error to give the instruction if there is no evidence that the purpose (i.e., intent) of the defendant’s flight was to avoid being observed or arrested. (See also People v. Jackson (1996) 13 C4th 1164, 1226 [implying that the mere fact that the defendant drove back home with his sole source of transportation was not evidence of flight, but holding that running from the murder scene was sufficient to justify the instruction].)
Additionally, the defendant should be able to waive the flight instruction. (See FORECITE F 372 Note 7.)
Moreover, even if the jury could conclude from the evidence that the defendant sought to avoid observation or arrest, the defendant still has a right to an instruction informing the jury that they must find this preliminary fact before they may consider the flight evidence. (See FORECITE F 372.1.)
In other words, merely leaving the scene of a crime or some other location does not justify giving a flight instruction. (See FORECITE F 372 Note 13.)
CALJIC NOTE: See FORECITE F 2.52 n3.
F 372 Note 4 Improper Factual Basis For Flight Should Be Stricken
CALCRIM 372 provides two potential factual bases for a finding of consciousness of guilt:
1. Flight immediately after commission of the crime.
2. Flight after being accused of a crime.
When the evidence supports only one factual basis, reference to the other should be deleted from the instruction. (People v. Carrera (1989) 49 C3d 291, 314.)
Because the inclusion of irrelevant language in an instruction implicates the trial court’s duty to give only correct and pertinent instructions responsive to the evidence, deletion of the irrelevant basis for flight is required sua sponte. (See People v. Lang (1989) 49 C3d 991, 1025.)
[See Brief Bank # B-701for additional briefing.]
CALJIC NOTE: See FORECITE F 2.52 n4.
F 372 Note 5 Applicability Of Flight Instruction To Escape Charge
In a prosecution for escape (PC 4532), limitation of the flight instruction may be necessary because flight is an element of the escape charge. Hence, there is a danger that the jury, by use of the flight instruction, may improperly convict the defendant on the escape charge without finding all necessary elements of that charge.
In other words, the flight instruction invites the jury to presume that the defendant was guilty of escape simply by the fact that he or she fled. Such a presumption would be especially improper in a situation where the defendant was relying upon a defense of duress. [See Brief Bank # B-701 for additional briefing and an unpublished opinion on this issue.]
CALJIC NOTE: See FORECITE F 2.52 n5.
F 372 Note 6 Prejudicial Impact Of Erroneous Instruction On Flight
[See Brief Bank # B-739. for additional briefing regarding prejudicial error based on instructing on flight over defense objection.]
CALJIC NOTE: See FORECITE F 2.52 n6.
F 372 Note 7 Defendant Should Be Able To Waive Giving Of Flight Instruction Since Its Purpose Is To Protect The Defendant
See FORECITE F 372.1 Inst 6; see also FORECITE PG VI(C)(1.1).)
CALJIC NOTE: See FORECITE F 2.52 n7.
F 372 Note 8 Flight: Instruction As Impermissible Inference
(See generally FORECITE PG VII(C)(9); but see People v. Mendoza (2000) 24 C4th 130, 179-80 [rejecting due process/impermissible inference argument].)
CALJIC NOTE: See FORECITE F 2.52 n8.
F 372 Note 9 Challenge To Other Consciousness Of Guilt And Other Permissive Inference Instructions As Duplicative Of Circumstantial Evidence Instruction
For a potential challenge to CC 372 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 2.52 n9.
F 372 Note 10 Consciousness Of Guilt As Improper Comment On The Evidence
“When instructing the jury, a trial judge may not single out and give undue emphasis to particular evidence.” (People v. Carter (2003) 30 CA4th 1166, 1225 [an instruction is “argumentative” if “it invite[s] the jury to draw inferences favorable to only one party from the evidence presented at trial . . .”]; People v. Harris (1989) 47 CA3d 1047, 1098, fn 31; People v. Wright (1988) 45 CA3d 1126, 1135 [pinpoint instruction is improperly argumentative if it directs the jury’s attention to specific evidence and “impl[ies] the conclusion to be drawn from that evidence”]; State v. Cathey (KS 1987) 741 P2d 738, 749.) [See also FORECITE PG III(B); F 362 Note 6; F 416.3 Inst 4.]
Logically this principle should preclude instruction on consciousness of guilt which singles out particular evidence. (See e.g., Renner v. State (GA 1990) 397 SE2d 683, 685 [reversible error to instruct the jury on flight]; see also State v. Cathey, 741 P2d at 749 [“[s]uch an instruction singles out and particularly emphasizes the weight to be given to that evidence by the jury” ]; State v. Menard (SD 1988) 424 NW2d 382, 384 [“… we caution that this instruction, as well as others which appear to be a commentary on the evidence, should be used sparingly and only when the special circumstances and evidence require” ]; State v. Reed (WA 1979) 604 P2d 1330, 1333 [flight: no instruction should be given]; Washington Pattern Jury Instructions—Criminal, WPIC 6.21 [Evidence Of Flight] (West, 2nd ed. 1994).) For example, in the case of flight, “instruction on the subject gives undue weight to a particular piece of evidence which should be avoided.” (7th Circuit Federal Jury Instructions—Criminal 3.20 [Flight] (1999).) For discussion of the dangers of giving a flight instruction, see U.S. v. Williams (7th Cir. 1994) 33 F3d 876, 879; U.S. v. Levine (7th Cir. 1993) 5 F3d 1100, 1107; U.S. v. Jackson (7th Cir. 1978) 572 F2d 636, 639-40; see also 7th Circuit Federal Jury Instructions—Criminal 3.22 [False Exculpatory Statements] Committee comment (1999) [false exculpatory statements may “be viewed by the jury as judge’s comments on the evidence” ].
This view has been expressed by the United States Supreme Court. (See Alberty v. U.S. (1896) 162 US 499, 511 [16 SCt 864; 40 LEd 1051] [murder conviction reversed because the trial court’s jury instruction overly emphasized the significance of the defendant’s flight].) And again, in Wong Sun v. U.S. (1963) 371 US 471 [83 SCt 407; 9 LEd2d 441] the court stated that “[a]lthough the question presented here is only whether the petitioner’s flight justified an inference of guilt sufficient to generate probable cause for his arrest, and not whether his flight would serve to corroborate proof of his guilt at trial, the two questions are inescapably related. Thus it is relevant to the present case that we have consistently doubted the probative value in criminal trials of evidence that the accused fled the scene of an actual or supposed crime.” (Wong Sun v. U.S., 371 US at 484.)
However, while the propriety of consciousness of guilt instructions is subject to debate (see e.g., U.S. v. McQuarry (8th Cir. 1984) 726 F2d 401, 402 (McMillian, J., concurring)), many jurisdictions squarely hold that the instructions may be given when warranted by the evidence. (See U.S. v. Clark (8th Cir. 1995) 45 F3d 1247, 1250 [false exculpatory statement, flight]; U.S. v. Penn (8th Cir. 1992) 974 F2d 1026, 1029 [false exculpatory statement]; U.S. v. Roy (8th Cir. 1988) 843 F2d 305, 310-11 [flight].)
In jurisdictions where such instructions are given, it may still be argued that they are an improper comment on the evidence. This argument is especially forceful if other similar defense-oriented instructions are not allowed. “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 [15 SCt 610; 39 LEd 709].) Hence, if the prosecution is permitted to obtain consciousness of guilt instructions which comment on the evidence and the defense is not, the due process clause of the federal constitution may be implicated. (See Wardius v. Oregon (1973) 412 US 470, 475-76 [93 SCt 2208; 37 LEd2d 82].)
For example, the Wyoming Supreme Court recently held that the giving of a flight instruction is reversible error. This holding was based on the rationale that a flight instruction serves “no real purpose” (see Renner v. State (GA 1990) 397 SE2d 683) and focuses “on a single aspect of circumstantial evidence and may unduly emphasize that aspect.” (Hadden v. State (WY 2002) 42 P3d 495, 508 [citing 1 Josephine R. Potuto, Steven A. Saltzburg, Harvey A. Perlman, Federal Criminal Jury Instructions, Part One, Chapter 3: Closing Instructions §3.51, FLIGHT AND RELATED EVIDENCE (2nd ed. with 1993 Supp.).)
See FORECITE F 362 Note 6.
CALJIC NOTE: See FORECITE F 2.52 n10.
F 372 Note 11 Instruction On Consciousness Of Guilt Inference Improper Without Supporting Evidence
(See FORECITE PG VII(C)(7.1).)
CALJIC NOTE: See FORECITE F 2.52 n11.
F 372 Note 12 Flight Instruction: Objection By Defendant Precludes Cautionary/Limiting Instruction Which Benefits The Defendant
See FORECITE F 372.1 Inst 6.
F 372 Note 13 Merely Leaving A Location Does Not Justify A Flight Instruction
Merely leaving the scene of a crime or some other location is not alone sufficient to warrant a flight instruction. (See People v. Crandell (1988) 46 CA3d 833, 869-70; see also People v. Clem (1980) 104 CA3d 337, 344; People v. Watson (1977) 75 CA3d 384, 402-03; see also Levenson & Ricciardulli, California Criminal Jury Instruction Handbook (West 2012-2013), § 2:3, Authors’ Notes, pp. 60-61.) “Mere return to familiar environs from the scene of an alleged crime does not warrant an inference of consciousness of guilt.” (Emphasis by court.) (People v. Turner (1990) 50 CA3d 668, 695; see also Juan H. v. Allen (9th Cir. 2005) 408 F3d 1262, 1277 [“No reasonable trier of fact could find evidence of criminal culpability in the decision of a teenager to run home from the scene of a shooting, regardless of whether the home was in the same general direction as the car of a fleeing suspect”]; U.S. v. Felix-Gutierrez (9th Cir. 1991) 940 F2d 1200, 1207 [discussing four-step analysis required in determining the probative value of flight evidence]; U.S. v. Blanco (9th Cir. 2004) 392 F3d 382, 395-96 [same].)
Moreover, a flight instruction based solely on leaving the scene is especially unfair when the defendant’s other conduct showed that he did not have a consciousness of guilt. (Cf., FORECITE F 372.4 Inst 1.) As one court explained:
The evidence in the present case did not warrant the instruction on flight nor can it be excused on the ground that the evidence of guilt was overwhelming. Other than leaving the scene of the crime there was no testimony that Brown concealed himself, fled the jurisdiction or evaded arrest. The instruction was especially unfair to the defendant. The State knew, and the trial court was aware from the testimony at pre-trial motions, that Brown continued to live at his home, worked at his regular occupation and voluntarily telephoned the police when he learned he was wanted for questioning. (People v. Brown (Ill. App. Ct. 1972), 3 Ill. App. 3d 1022, 1026.)
F 372 Note 14 Flight Used For Accessory Charge Does Not Warrant Flight Instruction (E.g., CC 372)
The flight that may have aided the principal’s escape, the actus reus of accessory, may not also be an act of flight that “follows the crime” to support the flight instruction. (People v. Moomey (2011) 194 CA4th 850.)