SERIES 300 EVIDENCE
F 320 Exercise Of Privilege By Witness
TABLE OF CONTENTS
F 320 Inst 1 (a & b) Denial Of Immunity By Prosecution: Explanatory Instruction
F 320 Inst 2 When Witness Seeks To Conceal Falsity Of Prior Testimony
F 320 Inst 3 (a & b) Exercise Of Privilege: No Presumption As To Any Matter At Issue
F 320 Inst 4 Cautionary Instruction When Witness Exercises Privilege Outside Of The Presence Of The Jury
F 320 NOTES
F 320 Note 1 When Witness Refuses To Testify Outside The Presence Of The Jury
F 320 Note 2 Witness Refusal To Testify: Informing The Jury
F 320 Note 3 Privilege Against Self-Incrimination: Applicability To Those Who Claim Innocence
F 320 Note 4 Available Sanction Short Of Striking Testimony
Return to Series 300 Table of Contents.
F 320 Inst 1 (a & b) Denial Of Immunity By Prosecution: Explanatory Instruction
*Add to CC 320:
Alternative a:
You must not assume that it was the defendant’s decision for ________________ <name of witness> not to testify. __________________ <name of witness> lawfully refused to testify unless (he/she) was granted immunity. However, only the government may grant immunity. Because the government did not grant _______________ <name of witness> immunity, the defendant was not able to call [him] [her] to testify.
Alternative b:
Under the law only the prosecution may grant immunity to a witness. If a witness has immunity, the prosecution cannot use what the witness says at a trial to prosecute the witness. Therefore, the witness must testify if called by either party. However, the law does not allow a defendant to grant immunity to witnesses [he] [she] may wish to call to testify on [his] [her] behalf.
Points and Authorities
If the prosecution denies immunity to a potential defense witness, the jury may unfairly conclude that the defense failed to produce the witness because the testimony would have been adverse to the defendant. (Cf. Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 2012) § 18:2.)
When a party fails to call a witness who the jury would logically expect to be called, there is a substantial potential for prejudice if the jury concludes that the testimony would have been adverse to the party who failed to call the witness. (Ibid.)
“[T]he need for an instruction becomes even clearer when the issue is viewed from the perspective of the jurors at trial. A recent article calls attention to the fact that jurors form inferences from the absence of evidence that they had expected to see produced, and suggests that judges should take such ‘negative inferences’ into account when ruling on the admissibility of evidence. This problem is fundamental. Jurors are passive; during the course of a trial they are expected to decide issues based on incomplete evidence, evidence that is in the absolute control of the litigating parties. Naturally, questions will arise in the minds of any people put into such a situation, and jurors are no exception. Their expectations about having their questions answered will not always be fulfilled. Nor are they usually encouraged to ask their questions directly. While this may be understandable and necessary for expeditious trials of cases, it does not seem necessary to ignore the jurors’ frustrations and leave them without guidance in resolving their uncertainties. [¶] Jurors’ uncertainties about missing witnesses should be treated as one part of a larger set of unresolved questions. The court should provide guidance by instructing the jury …” [Footnotes omitted]. (Robert Stier, Revisiting the Missing Witness Inference—Quieting the Loud Voice from the Empty Chair, 44 Md.L.Rev. 137, 169 (1985); see also Yuen v. State (MD 1979) 403 A2d 819, 823 [“even in the absence of an instruction, the jury is not precluded from drawing an adverse inference from missing evidence”].)
Hence, if the rule is that no inference should be drawn, it may be appropriate to instruct that “no inference should be drawn by the failure … to call (that person) as a witness.” (Christensen v. State (MD 1975) 333 A2d 45, 49.)
Hence, when the witness asserts the 5th Amendment and the prosecution refuses to grant the witness immunity, any jury assumption that the defendant was responsible for the absence of the witness would be plainly false and unfair. (Compare People v. Stewart (2004) 33 C4th 425, 476 [no special instruction concerning the prosecution’s exclusive authority to confer immunity was required where even if the jury were to have speculated from witness’s absence that his testimony might have been unfavorable to defendant, the evidence properly before the jury already provided an independent and strong basis for the jurors to reach these same conclusions].)
Moreover, since the prosecution has the power to grant immunity and the defendant doesn’t, there is a lack of balance which may implicate the due process clause of the federal constitution. (See U.S. v. Westerdahl (9th Cir. 1991) 945 F2d 1083, 1087 [government distorted the judicial factfinding process “[b]y granting immunity to one witness,… who is willing to testify in support of the government’s theory, while denying immunity to another witness”]; People v. Samuels (2005) 36 C4th 96, 127 [it is possible to hypothesize cases where judicially conferred use immunity might possibly be necessary to vindicate a criminal defendant’s rights to compulsory process and a fair trial].)
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 6.5 [Instructions Must Be Balanced Between Defense And Prosecution]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 2.20n.
F 320 Inst 2 When Witness Seeks To Conceal Falsity Of Prior Testimony
*Add to CC 320:
Witness __________ <name of witness> refused to testify relying on [his] [her] constitutional privilege against self-incrimination. [He] [She] did so because [his] [her] testimony would have shown [his] [her] prior testimony to be false, thus exposing [him] [her] to a charge of perjury. You may rely on the witness’s failure to testify to draw all appropriate inferences regarding the matters at issue in this trial, including whether the evidence proves defendant guilty beyond a reasonable doubt.
Points and Authorities
CC 320 informs the jury that when a witness refuses to testify based upon assertion of his 5th Amendment privilege against self-incrimination, the jury must not draw any inference from the exercise of the privilege as to the believability of the witness or the guilt or innocence of the defendant.
While this instruction is appropriate in the ordinary circumstances where the witness fears his own potential prosecution and therefore refuses to testify, “it is entirely unwarranted” when the witness refuses to testify because his testimony would show his prior testimony to have been untruthful. (People v. Garner (1989) 207 CA3d 935, 938.)
In Garner, the witness refused to respond to questioning at trial upon the express averment that to do so would reveal the falsity of his earlier testimony at the preliminary hearing—which implicated the defendant—and would thus subject the witness to prosecution for perjury. Under such circumstances, the jury should be allowed to draw an unfavorable inference regarding the witness’s credibility based upon his assertion of the 5th Amendment privilege. (Garner, 204 CA3d at 935.)
Furthermore, “where the witness’s earlier avowedly false testimony provides a basis for determining the accused’s guilt, the jury ought properly to be instructed that it should, rather than it should not, draw all appropriate inferences regarding the defendant’s actual guilt or innocence from the witness’s refusal to speak.” (Id. at 939.)
Accordingly, under such circumstances CC 320 should be modified to allow the jury to draw whatever inferences it deems appropriate from the witness’s exercise of the privilege.
(But see People v. Simmerman DEPUBLISHED (1990) 226 CA3d 106, disagreeing with Garner and—in reliance upon EC 913—concluding that CJ 2.25 (now CC 320) may be properly given under all circumstances.)
Such a modification is necessary to assure that the prosecution’s burden is not unfairly lessened and to protect defendants’ federal (6th and 14th Amendments) constitutional rights to trial by jury and due process.
Identification Of Parties.—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
FORECITE CG 7.1 [Right To Jury Consideration Of The Evidence]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
RESEARCH NOTES
See Annotation, Inferences arising from refusal of witness other than accused to answer question on the ground that answer would tend to incriminate him, 24 ALR2d 895 and Later Case Service.
CALJIC NOTE: See FORECITE F 2.25b.
F 320 Inst 3 (a & b) Exercise Of Privilege: No Presumption As To Any Matter At Issue
*Replace CC 320 with the following:
Alternative a:
When a witness refuses to testify to any matter, relying on the constitutional privilege against self-incrimination, no presumption arises because of the exercise of the privilege. You must not draw from the exercise of such privilege any inference as to the credibility of the witness or as to any other matter at issue in this trial including whether or not the evidence proves the defendant guilty beyond a reasonable doubt.
Alternative b:
When a witness refuses to testify to any matter, relying upon the exercise of a lawful privilege, no presumption arises because of the exercise of the privilege. You must not draw from the exercise of such privilege any inference as to the credibility of the witness or as to any other matter at issue in this trial, including whether or not the evidence proves the defendant’s guilt beyond a reasonable doubt.
Points and Authorities:
EC 913(b) requires that the jury be instructed, upon request, that “no presumption arises because of the exercise of the privilege and that the jury may not draw any inference therefrom as to the credibility of the witness or as to any matter at issue in the proceeding.” [Emphasis added.]
Identification Of Parties.—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.3 [Prosecution’s Burden Of Proof: Irrational Permissive Inference]
FORECITE CG 5.3 [Impairing Jury’s Assessment Of Witness Credibility]
FORECITE CG 7.3 [Consideration Of Matters Not Admitted Into Evidence]
FORECITE CG 7.4 [Juror Consideration Of Evidence For An Improper Purpose]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 2.25d.
F 320 Inst 4 Cautionary Instruction When Witness Exercises Privilege Outside Of The Presence Of The Jury
*To be given in place of CC 320:
__________ <insert name of witness> was unavailable to testify for either the defense or the prosecution. You must not draw from this unavailability any inference as to whether or not the evidence proves the defendant guilty beyond a reasonable doubt.
Points and Authorities
This instruction is analogous to a pinpoint instruction because it relates the absence of certain evidence to the defendant’s theory that no adverse inference should be drawn therefrom. (See People v. Adrian (1982) 135 CA3d 335, 338-39.) A proper pinpoint instruction should be given upon request. (People v. Brady (1987) 190 CA3d 124, 135.) Therefore, the above instruction should be given when requested. (See Bowles v. U.S. (D.C. Cir. 1970) 439 F2d 536, 542, fn 6 [observing that it would be error to refuse a request for such an instruction].)
Moreover, by seeking to assure that the jurors fairly evaluate the credibility of the prosecution witnesses, this proposed instruction protects the defendant’s federal constitutional rights to trial by jury and due process (6th and 14th Amendments). [See generally, FORECITE PG VII “Federalizing the Request.” ]
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 7.3 [Consideration Of Matters Not Admitted Into Evidence]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
NOTES
There may be a tactical reason not to request the above instruction as illustrated by the following passage from Bowles 439 F2d at 542, fn 6:
“Had either counsel requested the court to instruct the jury that they should draw no inference from Smith’s absence because he was unavailable to either side, it would have been error to refuse this instruction. Appellant’s trial counsel did not request such an instruction. There are meaningful tactical reasons why a defense counsel might elect not to seek such an instruction.”
“Defense trial counsel might well conclude that while a jury would readily understand for itself that defendant couldn’t be expected to produce as a witness a man (Smith) who would testify that he had killed the deceased, it might have expected—in terms of inquiring whether there was a reasonable doubt of guilt,—that the Government would have called Smith to testify that he had not killed the deceased. The possibility for arousal of a reasonable doubt in the minds of the jurors would have been removed by a neutralizing instruction from the court.” (Bowles, 439 F2d at 542, fn 6.)
CALJIC NOTE: See FORECITE F 2.25a.
F 320 NOTES
F 320 Note 1 When Witness Refuses To Testify Outside The Presence Of The Jury
See FORECITE F 320 Inst 4.
F 320 Note 2 Witness Refusal To Testify: Informing The Jury
It is improper to place a witness who has a valid 5th Amendment privilege in front of jury to assert it. (People v. Mincey (1992) 2 C4th 408.) However, it is proper to permit the prosecutor to call and question a witness who refuses to testify without valid privilege. (People v. Lopez (1999) 71 CA4th 1550.)
In People v. Cudjo (1993) 6 C4th 585, 619, the court rejected the defendant’s argument that the trial court should have informed the jury of the witness’s refusal to testify or compelled the witness to claim the privilege against self-incrimination in the jury’s presence. (See also People v. Stewart (2004) 33 C4th 425, 473 [EC 913 did not afford defendant right to instruction informing jury that witness exercised 5th Amendment].)
CALJIC NOTE: See FORECITE F 2.26 n2.
F 320 Note 3 Privilege Against Self-Incrimination: Applicability To Those Who Claim Innocence
The privilege against self-incrimination is also available to those who claim innocence when a truthful response may provide the government with incriminating evidence. (Ohio v. Reiner (2001) 532 US 17 [149 LEd2d 158; 121 SCt 1252, 1254].)
CALJIC NOTE: See FORECITE F 2.26 n3.
F 320 Note 4 Available Sanction Short Of Striking Testimony
See People v. Seminoff (2008) 159 CA4th 518 [collecting and discussing case law regarding availability of lesser sanctions when defendant or defense witness refuses to answer material questions on Fifth Amendment self-incrimination grounds].
