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F 2.62 n1 Failure To Explain Or Deny: Implausible Explanation.
Some cases have approved of giving CJ 2.62 when defendant’s explanation, though superficially accounting for his/her activities, “‘nevertheless seems bizarre or implausible ….’” (People v. Belmontes (88) 45 C3d 744, 784 [248 CR 126], quoting People v. Mask (86) 188 CA3d 450, 455 [233 CR 181].) Thus, while an implausible explanation does not warrant the giving of CJ 2.62 in most instances, when the degree of implausibility is extreme or when the explanation itself is bizarre, CJ 2.62 may be proper.
F 2.62 n2 Contradiction Is Not Failure To Explain.
The test for determining the propriety of CJ 2.62 — concerning the failure of the defendant to deny or explain the evidence — is not whether the defendant’s testimony is believable. The instruction is unwarranted when a defendant explains or denies matters within his or her knowledge, “no matter how improbable that explanation may appear.” (People v. Kondor (88) 200 CA3d 52, 57 [245 CR 750].)
Nor do contradictions between the defendant’s testimony and his or her prior statements or the testimony of prosecution witnesses justify the instruction. “[A] contradiction does not equate to a failure to explain or deny.” (Kondor at 57; see also People v. Saddler (79) 24 C3d 671, 682 [156 CR 871]; People v. Lamer (2003) 110 CA4th 1463, 1469 [a contradiction between the defendant’s testimony and other witnesses’ testimony does not constitute a failure to deny].)
To permit an impermissible inference of guilt from CJ 2.62 would implicate the defendant’s federal (6th and 14th amendments) constitutional rights to trial by jury and due process. (See FORECITE PG VII.)
F 2.62 n3 Failure To Deny Or Explain Applies To “Important” Evidence.
CJ 2.62 must not be given if the defendant did not fail to deny or explain any “important” evidence. People v. Marks (88) 45 C3d 1335, 1346 [248 CR 874], held that CJ 2.62 was improper where the defendant “did not fail to explain or deny any important evidence against him and … testified extensively to a version of the events that contradicted the prosecution’s case in all important respects.”
To permit an impermissible inference of guilt from CJ 2.62 would implicate the defendant’s federal (6th and 14th amendments) constitutional rights to trial by jury and due process. (See FORECITE PG VII.)
F 2.62 n4 Failure To Explain Or Deny: CJ 2.62 Is Constitutional.
If justified by the evidence, CJ 2.62 does not violate the defendant’s privilege against self-incrimination, deny him the presumption of innocence, nor violate due process. (People v. Saddler (79) 24 C3d 671, 678 [156 CR 871].)
F 2.62 n5 Defendant Testifying: Privilege Against Self-Incrimination Is Not Waived As To Unrelated Pending Criminal Charges.
When the defendant takes the stand in his or her own defense, the privilege against self-incrimination is generally waived as to most matters. However, the privilege is not waived as to unrelated, uncharged conduct (as opposed to prior criminal conviction) and, therefore, the prosecution should not be permitted to question the defendant about pending criminal charges (People v. Matz DEPUBLISHED (98) 68 CA4th 1216 [80 CR2d 872]) nor does an offer of immunity by the prosecutor protect the defendant in the same way as the constitutional privilege against self-incrimination. (Ibid.)
F 2.62 n6 Improbable Explanation Does Not Justify Instruction.
(See People v. Kondor (88) 200 CA3d 52, 57 [245 CR 750]; see also People v. Braxton (2002) 103 CA4th 471 [126 CR2d 699].)
(See also FORECITE F 2.62 n2.)
F 2.62a
Failure To Deny Or Explain: Applicability To All Witnesses
*Modify CJ 2.62 as follows:
[Delete the first sentence. Change all references to “defendant” so that the instruction applies to all “witnesses”.]
Points and Authorities
CJ 2.62, which instructs the jury regarding adverse inferences from the failure of the defendant to deny or explain evidence, relates to witness credibility. Therefore, an instruction on the failure to explain or deny evidence directed to all witnesses, as opposed to just the defendant, should be given when appropriate. (People v. Morris (91) 53 C3d 152, 213 [279 CR 720; see also EC 413].)
Improper or inadequate instruction upon witness credibility implicates 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.]
NOTES: CALJIC recommends that the court consider requiring the prosecution to notify the court and defense of an intention to request CJ 2.62. Therefore, defense counsel should be alert to the imposition of such a requirement as a prerequisite to a defense request that CJ 2.62 be applied to all witnesses.) A request for CJ 2.62 could be an effective bargaining technique in cases, such as child-sex prosecutions, where the prosecution witnesses are particularly susceptible to attack.
F 2.62b
Failure To Deny Or Explain: Limitation To Testifying Defendant
*Modify to CJ 2.62 to provide as follows: [added language is capitalized; deleted language is between <<>>]:
In this case defendant _________ (INSERT NAME OF DEFENDANT TO WHICH INSTRUCTION APPLIES) has testified to certain matters.
If you find that defendant __________ (INSERT NAME OF APPLICABLE DEFENDANT) failed to explain or deny any evidence against [him] [her] introduced by the prosecution which [he] [she] can reasonably be expected to deny or explain because of facts within [his] [her] knowledge, you may take that failure into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may reasonably be drawn therefrom those unfavorable to the defendant are the more probable.
The failure of <<a>> defendant _________ (INSERT NAME OF APPLICABLE DEFENDANT) to deny or explain evidence against [him] [her] does not, by itself, warrant an inference of guilt, nor does it relieve the prosecution of its burden of proving every essential element of the crime and the guilt of <<the>> defendant _________ (INSERT NAME OF APPROPRIATE DEFENDANT) beyond a reasonable doubt.
If <<a>> defendant __________ (INSERT NAME OF APPROPRIATE DEFENDANT):<<does>> DID not have the knowledge that [he] [she] would need to deny or to explain evidence against [him,] [her,] it would be unreasonable to draw an inference unfavorable to [him] [her] because of [his] [her] failure to deny or explain such evidence.
Points and Authorities
In multiple defendant cases where one defendant has testified and another has not, CJ 2.62 must be modified to avoid suggesting to the jury that the nontestifying defendant’s failure to deny or explain evidence may be used against him or her. Such an interpretation of the instruction would implicate the self incrimination and due process principles of the state and federal constitution. (U.S. Const. 5th and 14th amendments; Calif Const. Article 1, § 15;Griffin v. California (65) 380 US 609 [14 LEd2d 106; 85 SCt 1229]; People v. Cabrellis (67) 251 CA2d 681, [59 CR 795]; see also EC 930.)
[Additional briefing on this issue is available to FORECITE Subscribers. Ask for Brief Bank B-640.]
