F 2.04

F 2.04 n1 Fabrication of Evidence: General Note.

ALERT: See FORECITE Notes at FORECITE F 2.03 regarding false statements for other issues which may also apply to suppression of evidence per CJ 2.04.

F 2.04 n2 Lack Of Consciousness Of Guilt Required By Due Process.

See FORECITE F 2.52h.

F 2.04 n3 Fabrication: Judicial Proceedings Need Not Be Actually In Progress.

People v. Rodrigues (94) 8 C4th 1060, 1139 [36 CR2d 235] held that CJ 2.04 does not require judicial proceedings to be actually in progress when the attempt to procure false testimony or fabricate evidence was made.

F 2.04 n4 Fabrication Instruction Inapplicable To The Manufacture Of An Alibi Before Defendant Is Charged.

CJ 2.04 is limited to situations where a defendant attempts to induce a witness to lie for him or her in a judicial proceeding or otherwise tries to fabricate evidence when a trial or prosecution is pending. (People v. Jackson (96) 13 C4th 1164, 1225 [56 CR2d 49].) Accordingly, the manufacture of an alibi before the defendant is charged with a crime is more appropriately addressed by CJ 2.03 concerning a defendant’s “wilfully false or deliberately misleading statements concerning the charge on which he or she is now being tried.” (Ibid.)

F 2.04 n5 Challenge To CJ 2.04 As Duplicative Of Circumstantial Evidence Instruction.

For a potential challenge to CJ 2.04 on the basis that it is merely a restatement of the general circumstantial evidence instruction, see FORECITE PG VII(C)(9.1).

F 2.04 n6 Consciousness Of Guilt As Improper Comment On The Evidence.

See FORECITE F 2.52 n10.

F 2.04 n7 Instruction On Consciousness Of Guilt Inference Improper Without Supporting Evidence.

(See FORECITE PG VII(C)(7.1).)

F 2.04a

Efforts By Defendant To Fabricate Evidence:

Inapplicable To Nature Or Degree Of Guilt

*To be added at end of CJ 2.04:

The defendant’s consciousness of guilt, if any, is relevant upon the questions of whether the defendant was afraid of being apprehended and whether the defendant thought [he] [she] had committed a crime. Consciousness of guilt 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 2.06a and FORECITE F 2.15a.]

F 2.04b

Fabrication Of Evidence Must Relate To Charged Crime

*Add to CJ 2.04:

You may not consider this evidence for any purpose unless you first determine it demonstrates a consciousness of guilt as to the charged offense.

Points and Authorities

“[E]vidence that the defendant fled the scene of a crime is admissible to demonstrate consciousness of guilt” when the “consciousness of guilt concern[s] the crime charged ….” (People v. Williams (88) 44 C3d 1127, 1143, fn 9 [245 CR 635] quoting U.S. v. Myers (5th Cir. 1977) 550 F2d 1036, 1049.) Accordingly, when there is no basis upon which to determine that the defendant’s consciousness of guilt was directed to the offenses for which he was on trial, as opposed to a different offense, the consciousness of guilt evidence is inadmissible to show the charged crime. (U.S. v. Myers 550 F2d at 1050; see also People v. Rankin (92) 9 CA4th 430, 435-36 [11 CR2d 735].) However, “[a] reasonable juror would understand ‘consciousness of guilt’ to mean ‘consciousness of some wrongdoing’ rather than ‘consciousness of having committed the specific offense charged.’” (People v. Crandell (88) 46 C3d 833, 871 [251 CR 227].) Hence, because the applicability of consciousness of guilt to the charged offense is a preliminary fact that is a prerequisite to the admissibility of the evidence, the jury should be instructed that it may not consider this evidence unless it finds said preliminary fact. (See EC 403; see also FORECITE F 2.001a.; cf., People v. Mendoza (2000) 24 C4th 130, 180 [99 CR2d 485] [“It is for the jury to determine to which offense, if any, the inference of [consciousness of guilt] should apply”]; People v. Navarette (2003) 30 C4th 458 [133 CR2d 89] [same].)

The failure to adequately or correctly instruct the jury upon consciousness of guilt lessens the prosecution’s burden and allows the jury to draw impermissible inferences of guilt in violation of the defendant’s state (Art. I § 14 and § 15) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. (See FORECITE PG VII.)

NOTES

[See Brief Bank # B-570 for additional briefing on this issue.]

F 2.04c

Fabrication of Evidence By Third Party

*Modify CJ 2.04 as follows [added language is capitalized; deleted language is between <<>>]:

If you find 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 be considered by you as a circumstance tending to show a consciousness of guilt. <<However,>> Such <<conduct is not>> CONDUCT MAY BE sufficient by itself to <<prove guilt and>> 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

It is well established that the defendant may rely upon the theory that a third party committed the charged offense. (People v. Edelbacher (89) 47 C3d 983, 1017 [254 CR 586]; People v. Hall (86) 41 C3d 826, 833 [226 CR 112].) 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 (91) 54 C3d 1103, 1120 [2 CR2d 364]; People v. Wright (85) 45 C3d 1126, 1136-37 [248 CR 600]; People v. Adrian (82) 135 CA3d 335, 342 [185 CR 506]; EC 502; FORECITE PG III (A)&(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.

Further, the prosecution’s burden logically permits the jury to rely entirely upon a single defense theory to find a reasonable doubt as to guilt. (See CJ 2.40.) It is not the defendant’s burden to prove that the third party is guilty, but only to leave the jury with a reasonable doubt as to the defendant’s own guilt. (See e.g., People v. Hall (80) 28 C3d 143, 159 [167 CR 844].) Accordingly, the instruction should follow the pattern of CJ 2.40 which states the basic rule that a reasonable doubt as to guilt may be founded entirely upon a single evidentiary inference.

Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]

Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See FORECITE PG VII.]

(See FORECITE F 2.03d.)

NOTES

[Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-590 a,b,c.]

F 2.04d

Fabrication Of Evidence By Police Or Prosecution

*Modify CJ 2.04 to provide as follows [added language is capitalized; deleted language is between <<>>]:

If you find that <<a defendant>> THE POLICE [__________] [insert appropriate person, e.g., D.A. investigator] [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 be considered by you <<as a circumstance tending to show a consciousness of guilt. However, such conduct is not sufficient by itself to prove guilt and its weight and significant, if any, are matters for your determination>> TO DRAW AN INFERENCE ADVERSE TO THE PROSECUTION. SUCH AN INFERENCE MAY BE SUFFICIENT STANDING ALONE TO LEAVE YOU WITH A REASONABLE DOUBT AS TO DEFENDANT’S GUILT.

Points and Authorities

(See U.S. v. LaPage (9th Cir. 2000) 231 F3d 488, 492 [conviction reversed for prosecution’s failure to correct prosecutorial testimony known to be false].)