Article Bank # A-99
Date of Article: November 2004.
Instructing with CALJIC 2.28 is Federal
Constitutional Error Punishing Defendants for the
Error of Their Counsel
by Charles M. Sevilla
CALJIC 2.28 (quoted in full at the end of this FLASH), tells the jury it may make adverse inferences against a party from the failure of counsel to timely produce discovery. This is done under the authority of the discovery statute, Penal Code section 1054. The problem often arises shortly before or during trial when defense counsel is late providing discovery, and the court finds no good reason for the delay. This triggers the giving of 2.28, an instruction blaming and punishing the defendant for counsel’s delay.
The instruction is harshly worded in telling the jury that: 1. The defendant concealed and or failed to timely disclose the evidence; 2. The disclosure delay or concealment was “without lawful justification,” and 3. The delay may have denied the prosecution “a sufficient opportunity to subpoena necessary witnesses or produce evidence.” The instruction ends by giving the jury carte blanche to do anything they want with the “evidence” meaning that they could use it to find the defendant guilty!
Now that seems a bit much given that the defendant is totally blameless in the matter. Yet, the defendant is being found responsible by the judge of lawless conduct that purportedly might have deprived the prosecution of the chance to produce evidence. Many have litigated this issue and the chickens are finally come home to roost. In three cases this year, the giving of this instruction was found error. In two of them, it was found reversible error:
1. The instruction given did invite the jurors to speculate; it told them to evaluate the weight and significance of a discovery violation without any guidance on how to do so; and it falsely informed them that Bell was responsible for the violation. It did not warn them that the violation, standing alone, was insufficient to support a guilty verdict.” People v. Bell, 118 Cal. App. 4th 249, 257 (2004).
2. [CALJIC] 2.28’s intimation that the opposing party was deprived of the ability to meet the belatedly disclosed evidence, its exhortation to the jury to consider the weight and significance of the late disclosure without guidance in that task, and its suggestion that the discovery violation is to be considered “against” the defendant far exceed the statute’s limited authorization to “advise” the jury of a discovery violation. People v. Saucedo, 121 Cal. App. 4th 937, 943. (2004).
3. Since the jury could have rejected Cabral’s wife’s corroboration of the officer’s testimony as a sanction for the discovery violation CALJIC No. 2.28 imputed to Cabral, he “may well have been substantially injured by the error of which he complains.” (People v. Watts (1926) 198 Cal. 776, 793 [247 P. 884], disapproved on another ground in People v. Thomas (1945) 25 Cal.2d 880, 898-901 [156 P.2d 7].) On the record here, it is reasonably probable that he might have achieved a more favorable result had the court not instructed with CALJIC No. 2.28. (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) People v. Cabral, 121 Cal. App. 4th 748, 753 (2004).
With this arsenal of cases, there is no way judges should be giving the instruction absent a foundational showing that the defendant personally was involved in the delay or concealment. The above cases do not address the issue as one of a denial of federal constitutional due process of law. One would think that a judge telling the jury a falsehood about the defendant (that he/she is responsible for unlawfully concealing evidence), and that it may be used against him/her (i.e., even to find guilt) would be a gross violation of the fundamental fairness that due process guarantees.
“Jurors rely with great confidence on the fairness of judges, and upon the correctness of their view expressed during trials. [Citation.]” People v. Lee, 92 Cal.App.3d 707, 715-716 (1979). “An important element of a fair trial is that a jury consider only relevant and competent evidence bearing on the issues of guilt or innocence.” Bruton v. U.S., 391 U.S. 123, 131, fn. 6 (1968). A judge’s false attribution of misconduct to the defendant is neither relevant nor competent evidence, and informing the jury that such “evidence” can be used adversely against the defendant is extremely unfair and prejudicial.
The instruction interjects Kafkaesque arbitrariness into deliberations – punishing the defendant for something he or she had no part in doing. The instruction is analogous to an unconstitutional permissive inference instruction by falsely telling the jury that the defendant concealed evidence unlawfully and from that fact allowing the jury to make adverse inferences. No rational fact-finder could make such an evidentiary connection. This runs afoul of the constitutionally required burden on the State to prove guilt beyond a reasonable doubt. See Ulster County Court v. Allen, 442 U.S. 140, 158 (1979).
The instruction is also akin to the introduction of false evidence into the trial. In California, that is prohibited under Penal Code section 1473(b)(1), and also generally by due process of law. See Sanders v. Sullivan, 900 F.2d 601, 606-607 (2nd Cir. 1990) (“Few rules are more ‘central to an accurate determination of innocence or guilt’ …[than] … that one should not be convicted on false testimony”); see also U.S. v. Young, 17 F.3d 1201, 1203-04 (9th Cir. 1994) (“A conviction based in part on false evidence, even false evidence presented in good faith, hardly comports with fundamental fairness.”)
California cases have only reviewed this issue under Watson requiring the defendant to show that a more favorable result would have occurred but for the instruction. Even so, two have reversed convictions. The federal standards should be argued at trial to pave the way for reversal per se for “structural error,” or, at the least, requiring the State to prove the error harmless beyond a reasonable doubt under Chapman v. California, 386 U.S. 18 (1967).
CALJIC 2.28 FAILURE TO TIMELY PRODUCE EVIDENCE
(Penal Code § 1054.5, subdivision (b))
The prosecution and the defense are required to disclose to each other before trial the evidence each intends to present at trial so as to promote the ascertainment of the truth, save court time and avoid any surprise which may arise during the course of the trial. [Concealment of evidence] [and] [or] [[D][d]elay in the disclosure of evidence] may deny a party a sufficient opportunity to subpoena necessary witnesses or produce evidence which may exist to rebut the non-complying party’s evidence.
Disclosures of evidence are required to be made at least 30 days in advance of trial. Any new evidence discovered within 30 days of trial must be disclosed immediately. In this case, the [People] [Defendant[s]] ___________ [concealed] [and] [or] [failed to timely disclose] the following evidence:
____________ _________________ _________________
Although the [People’s] [Defendant’s] _________________ [concealment] [and] [or] [failure to timely disclose evidence] was without lawful justification, the Court has, under the law, permitted the production of this evidence during the trial.
The weight and significance of any [concealment] [and] [or] [delayed disclosure] are matters for your consideration. However, you should consider whether the [concealed] [and] [or] [untimely disclosed evidence] pertains to a fact of importance, something trivial or subject matters already established by other credible evidence.
[A defendant’s failure to timely disclose the evidence [he] [she] intends to produce at trial may not be considered against any other defendant[s] [unless you find that the other defendant[s] authorized the failure to timely disclose].]