Defendant’s Failure to Explain or Deny Evidence: CSC Adopts the Narrower View of When CC 361 Should Be Given
July 14th, 2016

The defendant in People v. Cortez (2016) 63 C4th 101 testified to an exculpatory version of events which conflicted with her recorded statement to the police.

CC 361, stating that a testifying defendant’s failure to explain or deny evidence against her may be considered by the jury, was given over objection.  The CCA majority held that the defendant had adequately explained the evidence against her, so it was error to give the instruction.

In the California Supreme Court, which granted the Attorney General’s petition for review, the defense cited People v. Saddler (1979) 24 C3d 671, for the proposition that the failure-to-explain-or-deny instruction should be given “only where the defendant completely fails to explain a specific, significant piece of evidence,” and is not appropriate merely because “a defendant’s explanation conflicts with other evidence.”  The prosecution cited People v. Belmontes (1988) 45 C3d 744, and People v. Redmond (1981) 29 C3d 904, for the proposition that the instruction should be given anytime “the defendant’s testimony contains logical gaps, creat[es] crucial points of conflict with other trial evidence, or is otherwise bizarre, implausible or nonresponsive.”  [Internal quotation marks omitted.]

The CSC discussed the historical roots of the principle, including the 1934-65 period during which a defendant’s failure to testify at all was a proper subject for comment by the prosecutor and consideration by the jury which was held unconstitutional in Griffin v. California (1965) 380 U.S. 609.) In light of this history the CSC overruled Belmontes and Redmond and held that CC 361 should only when a defendant completely fails to explain or deny incriminating evidence, or claims to lack knowledge and it appears from the evidence that the defendant could reasonably be expected to have that knowledge.” (63 C4th at 117.)

If the defendant offers an explanation of the adverse evidence, the instruction is not warranted, even if the defendant’s testimony is inconsistent with other witnesses or appears improbable. (Ibid.) The general witness credibility instruction, CC 226, adequately covers the situation in which the defendant’s testimony is inconsistent with other evidence and/or intrinsically does not seem credible. (Id. at 117-18.)

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