SERIES 300 EVIDENCE
F 371(B) Fabrication Of Evidence: Preliminary Facts
TABLE OF CONTENTS
F 371(B-1) Inst 1 Fabrication Of Evidence: Modification Of Title In Light Of Preliminary Facts
F 371(B-1) Inst 2 Fabrication Of Evidence: Required Preliminary Fact
F 371(B-1) Inst 3 (a & b) Fabrication Of Evidence Must Be Willful Or Deliberate
F 371(B-1) Inst 4 Fabrication Of Evidence Must Not Be Intended To Deflect Suspicion From Defendant And Not To Protect Another
F 371(B-1) Inst 5 Fabrication Of Evidence Must Relate To Charged Crime
F 371(B-1) Inst 6 Fabrication Of Evidence Must Occur After Charged Crime
F 371(B-1) Inst 7 Efforts By Others Than Defendant To Fabricate Evidence
F 371(B-1) Inst 8 Fabrication Of Evidence: Defense Objection Precludes Instruction Which Benefits Defendant
F 371(B-2) Inst 1 Fabrication Of Evidence: 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 371(B-2) Inst 2 Efforts By Defendant To Fabricate Evidence: Inapplicable To Nature Or Degree Of Guilt
F 371(B-3) Inst 1 Fabrication Of Evidence: Prosecution Must Prove Every Essential Fact
F 371(B-3) Inst 2 Multiple Forms Of Consciousness Of Guilt Not Alone Sufficient To Convict
F 371(B-4) Inst 1 Absence Of Fabrication Of Evidence
F 371(B-4) Inst 2 Fabrication Of Evidence By Third Party: Relevance To Third Party Guilt Defense Theory
F 371(B-4) Inst 3 Fabrication Of Evidence By The Police Or Prosecution
F 371(B-4) Inst 4 Attempted Fabrication Of Evidence Or Witness Intimidation By The Police Or Prosecution
Return to Series 300 Table of Contents.
F 371(B-1) Inst 1 Fabrication Of Evidence: Modification Of Title In Light Of Preliminary Facts
See FORECITE F 371(A-1) Inst 1.
F 371(B-1) Inst 2 Fabrication Of Evidence: Required Preliminary Fact
*Add to CC 371(A):
[Adapt from FORECITE F 371(A-1) Inst 2.]
Points and Authorities
See FORECITE F 371(A-1) Inst 2.
371(B-1) Inst 3 (a & b) Fabrication Of Evidence Must Be Willful Or Deliberate
*Modify CC 371(B) as follows [added language is underlined]:
[If the defendant [willfully] [deliberately] tried to [fabricate evidence] [_______________ <insert alleged act of fabrication>], 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.]
Points and Authorities
See FORECITE F 371(A-1) Inst 1.
F 371(B-1) Inst 4 Fabrication Of Evidence Must Not Be Intended To Deflect Suspicion From Defendant And Not To Protect Another
See FORECITE F 371(A-1) Inst 4.
F 371(B-1) Inst 5 Fabrication Of Evidence Must Relate To Charged Crime
*Add to CC 371(B):
If you find [it more likely than not] that the defendant [fabricated evidence] [_______________ <insert alleged act of fabrication>], you may not consider it for any purpose unless you first determine that it demonstrates a consciousness of guilt as to the charged offense.
Points and Authorities
See FORECITE 362.1 Inst 5.
CALJIC NOTE: See FORECITE F 2.04b.
F 371(B-1) Inst 6 Fabrication Of Evidence Must Occur After Charged Crime
See FORECITE F 371(A-1) Inst 6.
F 371(B-1) Inst 7 Efforts By Others Than Defendant To Fabricate Evidence
*Add to CC 371(B):
If you find [it more likely than not] that an effort to [fabricate evidence] [_______________ <insert alleged act of fabrication>] 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 [fabrication] [_______________ <insert alleged act of fabrication>]. 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
See FORECITE F 371(A-1) Inst 7.
F 371(B-1) Inst 8 Fabrication Of Evidence: Defense Objection Precludes Instruction Which Benefits Defendant
See FORECITE F 362.1 Inst 9.
F 371(B-2) Inst 1 Fabrication Of Evidence: 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 371(B), sentence 1 as follows [added language is underlined; deleted language is stricken]:
[If the defendant tried to create false evidence or obtain false testimony, that
conduct may show that (he/she)was aware of (his/her)guilt [thought (he/she) did something wrong] [had feelings of guilt].
Points and Authorities
See FORECITE F 371(A-2) Inst 1.
F 371(B-2) Inst 2 Efforts By Defendant To Fabricate Evidence: Inapplicable To Nature Or Degree Of Guilt
*Add to end of CC 371(B):
The defendant’s _______________ <insert alleged act of fabrication>, if any, is only relevant as to the questions of whether the defendant was afraid of being apprehended and whether the defendant thought [he] [she] had done something wrong. Such evidence may not be considered [in determining the degree of defendant’s guilt] [or] [in determining which of the charged offenses the defendant committed].
Points and Authorities
See FORECITE F 371(A-2) Inst 2.
CALJIC NOTE: See FORECITE F 2.04.
F 371(B-3) Inst 1 Fabrication Of Evidence: Prosecution Must Prove Every Essential Fact
*Add at end of CC 371(B):
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.
[Source: CALCRIM 376, paragraph 4.]
Points and Authorities
See FORECITE F 371(A-3) Inst 1.
F 371(B-3) Inst 2 Multiple Forms Of Consciousness Of Guilt Not Alone Sufficient To Convict
*Modify CC 371 (B), sentence 3, as follows [added language is underlined; deleted language is stricken]:
However, evidence of such an attempt by itself or in combination with [other alleged consciousness of guilt evidence] [the alleged ________ <insert other specific consciousness of guilt evidence> cannot prove guilt by itself.]
Points and Authorities
See FORECITE F 371(A-3) Inst 2.
CALJIC NOTE: See FORECITE F 2.06i.
F 371(B-4) Inst 1 Absence Of Fabrication Of Evidence
See FORECITE F 372.4 Inst 1 (a-d).
F 371(B-4) Inst 2 Fabrication 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 fabricate 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] fabricate 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
See FORECITE F 371(A-4) Inst 2 (a & c).
F 371(B-4) Inst 3 Fabrication Of Evidence By The Police Or Prosecution
*Add to 371(B) with the following:
[Adapt from FORECITE F 371(A-4) Inst 3.]
Points and Authorities
See FORECITE F 371(A-4) Inst 3.
CALJIC NOTE: See FORECITE F 2.04d.
F 371(B-4) Inst 4 Attempted Fabrication Of Evidence Or Witness Intimidation By The Police Or Prosecution
*Add to or replace CC 371(B) with the following:
[Adapt from FORECITE F 371(A-4) Inst 4.]
Points and Authorities
See FORECITE F 371(A-4) Inst 4.
