[Update of February 3rd, 2015 post]
People v. Centeno (2014) 60 Cal. 4th 659 provides an important clarification of the presumption of innocence and the prosecution’s burden of proof: “…[D]eficiencies in the defense case [cannot] make up for shortcomings in [the prosecution’s case].” (Id., at 673.)
For example, in People v. Brito (Sep. 19, 2019, B290418) UNPUBLISHED the following remarks by the prosecutor erroneously characterized the absence of defense evidence as prosecution evidence: “[S]ometimes evidence is actually the absence of evidence…. So I’m asking you to think about the absence of evidence as evidence….[P]art of my case is the absence of that evidence [viz., any record of appellant’s purchase of the car or any testimony from a witness who loaned the car to appellant].” These remarks misstated the law because the absence of evidence is not evidence. (See EC 140 [“‘Evidence’ means testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact”]; see also People v. Flores (1992) 3 CA4th 200, 210 [“absence of evidence as to what occurred” during two-minute interval was not evidence, leaving only speculation to support conclusion that fetus/infant breathed during interval]; cf. Roddenberry v. Roddenberry (1996) 44 CA4th 634,655 [“If an absence of evidence could satisfy the burden of proof, the concept of burden of proof would have no meaning”].)
In Centeno the prosecutor urged the jury to “decide which version of the facts was true.” (Ibid.) To that end, the prosecutor argued that defendant’s testimony was unreasonable, and conversely that the People’s burden was met if its theory was “reasonable” in light of the facts supporting it. (Ibid.) This recitation of the jury’s duty “clearly diluted” the prosecutor’s burden of proof. (Ibid.) “…[I]t is error for the prosecutor to suggest that a ‘reasonable’ account of the evidence satisfies the prosecutor’s burden of proof… It is likewise error to state that ‘a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence.’ [Citations.] It is … the prosecutor’s burden to prove the case … [and] even if the jury rejects the defense evidence as unreasonable or unbelievable, that conclusion does not relieve or mitigate the prosecutorial burden.” (Ibid; see also People v. Hill (1998) 17 C4th 800, 831 [there “need not be any “affirmative evidence demonstrating a reasonable doubt …”]; In re Anthony J. (2004) 117 CA4th 718, 733 [trial court’s rejection of defendant’s version of the events did “not matter” because “[t]here still was no positive evidence introduced supplying the necessary elements…”] Nishikawa v. Dulles (1958) 356 U.S. 129, 137 [“disbelief of petitioner’s story . . . [cannot] fill the evidentiary gap in the Government’s case”]; Moore v. Chesapeake & O.R. Co. (1951) 340 U.S. 573, 576 [disbelief of a witness will “not supply a want of proof”].)
See also,
F 100.1 Inst 1 (a-d) Defense Has No Obligation To Prove Anything;
F 103.4 Inst 4 (a & b) Rejection Or Disbelief Of Defense Evidence Does Not Satisfy The Prosecution’s Burden Of Proof
Sample Instructions
Alternative a:
This burden requires the prosecution to present affirmative evidence of guilt. However, rejection or disbelief of the defense evidence does not create such affirmative evidence. Even if you should reject all or part of the defense evidence, you may not convict the defendant unless the prosecution has presented other evidence which you believe to prove guilt beyond a reasonable doubt.
Alternative b:
As I have instructed you, you are the sole judges of the credibility of witnesses and of the weight to be given the testimony of each. If, however, you should disbelieve the testimony of a witness, that circumstance does not warrant your finding that the direct opposite of such testimony is true, for disbelief in testimony, in whole or in part, is not the equivalent of affirmative evidence to the contrary of the disbelieved testimony.
