F 357 Inst 5 Adoptive Admissions: Jurors Are “Exclusive Judges” Of Whether Statement Was Made And Whether It Was True
*Add to CC 357:
You are the exclusive judges as to whether the defendant made an admission, and if so, whether that statement is true in whole, in part, or not at all.
[Evidence of an oral admission of [a] [the] defendant not made in court should be viewed with caution.]
Points and Authorities
When a defendant is deemed to have made an admission by silence, the court should give a special instruction, CC 357 (CJ 2.71.5) on the subject, and must also instruct per CC 359 on corpus delicti. But both instructions lack two very important limiting elements: (a) that the jurors are the “exclusive judges” as to whether the defendant made an admission, and, if so, whether the admission is true in whole or in part; and (b) that out-of-court admissions by silence should be viewed with caution.
Accordingly, because the trial court is obligated to correct defective instructions (see FORECITE PG V(C)), the above elements should be added.
When a generally applicable instruction is specifically made applicable to one aspect of the charge and not repeated with respect to another aspect, the inconsistency may be prejudicial error. (People v. Salas (1976) 58 CA3d 460, 474.) As the Supreme Court reasoned in People v. Dewberry (1959) 51 C2d 548, 557:
The failure of the trial court to instruct on the effect of a reasonable doubt as between any of the included offenses, when it had instructed as to the effect of such doubt as between the two highest offenses, and as between the lowest offense and justifiable homicide, left the instructions with the clearly erroneous implication that the rule requiring a finding of guilt of the lesser offense applied only as between first and second degree murder.
Such reasoning is also consistent with similar reasoning used in statutory interpretation. (See People v. Drake (1977) 19 C3d 749, 755 [in statutory construction, omission of provision from similar statute shows different intent]; United States v. Crane (9th Cir. 1992) 979 F2d 687, 690 [maxim expressio unius est esclusio alterius “is a product of logic and common sense” ].)
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 5.5 [Defendant’s Statements/Adoptive Admissions]
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 2.71.5c.
F 357 Inst 6 (a & b) Adoptive Admissions Must Be Viewed With Caution
*Add at end of CC 357:
Alternative a:
If you find the defendant’s silence to be an admission, you must view it with caution.
Alternative b:
[You must consider with caution evidence of a defendant’s oral statement unless it was written or otherwise recorded.]
[Source: CALCRIM 358, paragraph 2.]
Points and Authorities
The cautionary concerns of CC 358 should apply to adoptive admissions addressed in CALCRIM 357. In California, admissions and adoptive admissions are hearsay exceptions, under EC 1220 and 1221. Those statutes are construed harmoniously because they were enacted in the same act (the 1965 Evidence Code) and concern the same subject matter, and thus are in pari materia. (City of Huntington Beach v. Board of Administration (1992) 4 C4th 462, 468; Estate of Stevens (1945) 27 C2d 108, 118-119; Uhl v. Badaracco (1926) 199 C 270, 282.) That they are contained in statutes on the same subject immediately next to each other in the same code further shows a strong connection, and requirement of harmonious construction, between them. (See, e.g., People v. Godlewski (1943) 22 C2d 677, 680-681; In re Petraeus (1939) 12 C2d 579, 582; see also City of Huntington Beach v. Board of Administration (1992) 4 C4th 462, 468.) (They are also immediately next to each other within the same rule in the Federal Rules of Evidence [Fed. R. Evid. 801, subds. (d)(2)(A) and (B)].)
As the name suggests, an “adoptive admission” is still a form of admission. “The analytical basis for this [hearsay] exception is that the adopting party makes the statement his own by admitting its truth. The statement or conduct of the adopting party thus expresses the same statement made by the declarant.” (People v. Castille (2003) 108 CA4th 469, 479 [underscoring added]; accord, e.g., People v. Hayes (1999) 21 C4th 1211, 1257-1258; Durbin v. K-K-M Corp. (1974) 220 NW2d 110, 117.) “[O]nce the defendant has expressly or impliedly adopted the statements of another, the statements become his own admissions …” (People v. Turner (1994) 8 C4th 137, 190 [italics in original].) An express adoptive admission might be, for example, express agreement with what an accuser or other third party said. (People v. Castille (2003) 108 CA4th 469, 480.) An implied adoptive admission might be, for example, a defendant’s silence in the face of an accusation during a voluntary conversation; the silence-qua-adoptive admission turns the accusations against the defendant into “his statements.” (People v. Trotter (1984) 160 CA3d 1217, 1225 [italics omitted].) All of the above concords with the relevant definition of the word “adopt,” which is “[t]o make that one’s own (property or act) which was not so originally.” (Black’s Law Dictionary (6th ed. 1991), p. 49.)
In other words, as the above shows, both the law and the policy rationale underlying “adoptive admissions” of a defendant is that they are the admissions of the defendant. (See also, e.g., People v. Castille, supra, 108 CA4th at pp. 479-480 [adoptive admissions of the defendant satisfy Confrontation Clause requirements for hearsay exceptions in the same manner as admissions of the defendant, for the reason that adoptive admissions of the defendant are admissions of the defendant].) They are thus as much subject to CJ 2.71 as any other admission.
See Brief Bank # B-970 for briefing on this issue.
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 5.5 [Defendant’s Statements/Adoptive Admissions]
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 2.71.5d.
F 357 Inst 7 (a & b) Non-CALCRIM Preliminary Facts: Personal Knowledge Of Facts
Alternative a:
*Add to CC 357 as required preliminary fact per EC 403:
The statement related to facts about which the defendant had personal knowledge.
Alternative b [Evidence offered by prosecution: CALCRIM 224 and 376 Format—Essential Fact Must Be Proved Beyond A Reasonable Doubt]:
The prosecution has presented evidence regarding an alleged statement made by _______________ <name of witness>.
You must not consider this evidence for any purpose unless the prosecution has proved the following preliminary fact[s] by a preponderance of the evidence:
That the statement related to facts __________.
[CAVEAT: Insert other preliminary facts. (See CALCRIM 357; see also FORECITE F 357 et al.).]
A fact is proved by a preponderance of the evidence if you find that it is more likely than not that the fact is true. This is a lesser burden of proof than proof beyond a reasonable doubt.
Unless [all of you] find that this preliminary fact to exist, you must disregard, for all purposes, [the testimony of witness ___________<name of witness>] [any evidence of the alleged statement by ___________ <name of witness> and the defendant’s alleged response to it].
If you [all] find the above preliminary fact to exist then you [may] [must] consider [the testimony of witness ___________ <name of witness>] [any evidence of the alleged statement by ___________ <name of witness> and the defendant’s alleged response to it] in your deliberations.
However, you must not rely on [______’s <name of witness> testimony] [the alleged statement by ___________ <name of witness> and the defendant’s alleged response to it] to find an essential fact or element of the charged offense[s] unless the prosecution has proved [the above preliminary fact[s] beyond a reasonable doubt] [beyond a reasonable doubt that ________________ <insert specific preliminary fact[s] at issue>.]
Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.
Points and Authorities
Defendant’s Knowledge Of Truth As Preliminary Fact.—Neither the actual statement nor the defendant’s reaction to it are themselves relevant. Rather, it is the defendant’s alleged belief that the statement is true that makes adoptive admissions admissible. (See Ec 1221; see also People v. Riel (2000) 22 C4th 1153, 1189.) Since such a belief is not relevant unless the defendant knows whether or not the statement is true, such knowledge should be a preliminary fact under EC 403.
Propriety Of Preliminary Fact Instruction.—See EC 403; see also FORECITE F 319 Inst 1.
Preliminary Fact Must Be Proven Beyond A Reasonable Doubt Vis a Vis Essential Facts And Elements Of The Offense.—The final paragraph of Alternative b regarding proof of essential facts, is adapted from CALCRIM 224 and 376. (See also FORECITE F 103.2 Inst 1; FORECITE CG 2.2.)
Whether the Jurors “Must” Consider the Evidence After Finding the Preliminary Fact.—See FORECITE F 105.2 Inst 1.
Propriety of Juror Unanimity As To Preliminary Facts.—See F 3500.3.1.
Obligation Of Defendant To Prove Preliminary Fact Does Not Alter Prosecution’s Burden Of Proof.—See F 100.1 Inst 1.
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 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 5.5 [Defendant’s Statements/Adoptive Admissions]
FORECITE CG 5.7 [Preliminary Facts]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
Unanimity Use Note.—If unanimity is not required then the instructions should be directed toward individual jurors. Those finding preliminary fact can consider the evidence, those not finding it cannot. (See generally F 100.7 Inst 2.)
RESEARCH NOTE: See CLARAWEB Forum, “Warning For CALCRIM 357.”
CAVEAT 1: Benefits And Risks Of Preliminary Fact Instruction.—Because they involve different standards of proof, preliminary fact instructions under EC 403 require careful strategic consideration. (See CAVEAT 1 in FORECITE F 319 Inst 1.)
CAVEAT 2: Burden Of Proof In EC 403 Instructions.—See CAVEAT 2 in FORECITE F 319 Inst 1.
F 357 Inst 8 (a & b) Non-CALCRIM Preliminary Fact: Freedom To Speak Spontaneously
Alternative a:
*Add to CC 357 as required preliminary fact per EC 403:
The defendant was free to speak spontaneously at the time _______________ <person who made the statement> stated that ______________ <statement>.
Alternative b [Evidence offered by prosecution: CALCRIM 224 and 376 Format—Essential Fact Must Be Proved Beyond A Reasonable Doubt]:
The prosecution has presented evidence regarding an alleged statement made by _______________ <name of witness>.
You must not consider this evidence for any purpose unless the prosecution has proved the following preliminary fact[s] by a preponderance of the evidence:
That the [defendant] had the ability to speak spontaneously.
[CAVEAT: Insert other preliminary facts. (See CALCRIM 357; see also FORECITE F 357 et al.).]
A fact is proved by a preponderance of the evidence if you find that it is more likely than not that the fact is true. This is a lesser burden of proof than proof beyond a reasonable doubt.
Unless [all of you] find that this preliminary fact to exist, you must disregard, for all purposes, [the testimony of witness ___________<name of witness>] [any evidence of the alleged statement by ___________ <name of witness> and the defendant’s alleged response to it].
If you [all] find the above preliminary fact to exist, then you [may] [must] consider [the testimony of witness ___________<name of witness>] [any evidence of the alleged statement by ___________ <name of witness> and the defendant’s alleged response to it] in your deliberations.
However, you must not rely on [______’s <name of witness> testimony] [the alleged statement by ___________ <name of witness> and the defendant’s alleged response to it] to find an essential fact or element of the charged offense[s] unless the prosecution has proved [the above prelminary fact[s] beyond a reasonable doubt] [beyond a reasonable doubt that ________________ <insert specific preliminary fact[s] at issue>.]
Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.
Points and Authorities
Ability To Speak Spontaneously As Preliminary Fact.—The ability of the defendant o speak spontaneously should be a preliminary fact under EC 430. (See People v. Cooper (1947) 81 CA2d 110, 117 [person must be free to speak spontaneously].)
Propriety Of Preliminary Fact Instruction.—See EC 403; see also FORECITE F 319 Inst 1.
Preliminary Fact Must Be Proven Beyond A Reasonable Doubt Vis a Vis Essential Facts And Elements Of The Offense.—The final paragraph of Alternative b regarding proof of essential facts, is adapted from CALCRIM 224 and 376. (See also FORECITE F 103.2 Inst 1; FORECITE CG 2.2.)
Whether the Jurors “Must” Consider the Evidence After Finding the Preliminary Fact.—See FORECITE F 105.2 Inst 1.
Propriety of Juror Unanimity As To Preliminary Facts.—See F 3500.3.1.
Obligation Of Defendant To Prove Preliminary Fact Does Not Alter Prosecution’s Burden Of Proof.—See F 100.1 Inst 1.
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 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 5.5 [Defendant’s Statements/Adoptive Admissions]
FORECITE CG 5.7 [Preliminary Facts]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
Unanimity Use Note.—If unanimity is not required then the instructions should be directed toward individual jurors. Those finding preliminary fact can consider the evidence, those not finding it cannot. (See generally F 100.7 Inst 2.)
RESEARCH NOTE: See CLARAWEB Forum, “Warning For CALCRIM 357.”
CAVEAT 1: Benefits And Risks Of Preliminary Fact Instruction.—Because they involve different standards of proof, preliminary fact instructions under EC 403 require careful strategic consideration. (See CAVEAT 1 in FORECITE F 319 Inst 1.)
CAVEAT 2: Burden Of Proof In EC 403 Instructions.—See CAVEAT 2 in FORECITE F 319 Inst 1.
F 357 Inst 9 (a & b) Non-CALCRIM Preliminary Fact: Matter In Controversy When The Statement Was Made
Alternative a:
*Add to CC 357 as required preliminary fact per EC 403:
The statement concerned a matter which was in controversy at the time the statement was made.
Alternative b [Evidence Offered By Prosecution: CALCRIM 224 And 376 FormatC Essential Fact Must Be Proved Beyond A Reasonable Doubt]:
The prosecution has presented evidence regarding an alleged statement made by _______________ <name of witness>.
You must not consider this evidence for any purpose unless the prosecution has proved the following preliminary fact by a preponderance of the evidence:
That the statement related to a matter which was in controversy at the time the statement was made.
[CAVEAT: Insert other preliminary facts. (See CALCRIM 357; see also FORECITE F 357 et al.).]
A fact is proved by a preponderance of the evidence if you find that it is more likely than not that the fact is true. This is a lesser burden of proof than proof beyond a reasonable doubt.
Unless [all of you] find that this preliminary fact to exist, you must disregard, for all purposes, [the testimony of witness ___________<name of witness>] [any evidence of the alleged statement by ___________ <name of witness> and the defendant’s alleged response to it].
If you [all] find the above preliminary fact to exist then you [may] [must] consider [the testimony of witness ___________ <name of witness>] [any evidence of the alleged statement by ___________ <name of witness> and the defendant’s alleged response to it] in your deliberations.
However, you must not rely on [______’s <name of witness> testimony] [the alleged statement by ___________ <name of witness> and the defendant’s alleged response to it] to find an essential fact or element of the charged offense[s] unless the prosecution has proved [the above preliminary fact[s] beyond a reasonable doubt] [beyond a reasonable doubt that ________________ <insert specific preliminary fact[s] at issue>.]
Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.
Points and Authorities
Matter In Controversy As A Preliminary Fact.—Since the relevance of the evidence depends on a finding that the statement concerned a matter which was in controversy at the time the statement was made, that finding is a preliminary fact under EC 403. (See Henshall v. Coburn (1917) 177 C 50, 53.)
Propriety Of Preliminary Fact Instruction.—See EC 403; see also FORECITE F 319 Inst 1.
Preliminary Fact Must Be Proven Beyond A Reasonable Doubt Vis a Vis Essential Facts And Elements Of The Offense.—The final paragraph of Alternative b regarding proof of essential facts, is adapted from CALCRIM 224 and 376. (See also FORECITE F 103.2 Inst 1; FORECITE CG 2.2.)
Whether the Jurors “Must” Consider the Evidence After Finding the Preliminary Fact.—See FORECITE F 105.2 Inst 1.
Propriety of Juror Unanimity As To Preliminary Facts.—See F 3500.3.1.
Obligation Of Defendant To Prove Preliminary Fact Does Not Alter Prosecution’s Burden Of Proof.—See F 100.1 Inst 1.
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 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 5.5 [Defendant’s Statements/Adoptive Admissions]
FORECITE CG 5.7 [Preliminary Facts]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
Unanimity Use Note.—If unanimity is not required, then the instructions should be directed toward individual jurors. Those finding preliminary fact can consider the evidence, those not finding it cannot. (See generally F 100.7 Inst 2.)
RESEARCH NOTE: See CLARAWEB Forum, “Warning For CALCRIM 357.”
CAVEAT 1: Benefits And Risks Of Preliminary Fact Instruction.—Because they involve different standards of proof, preliminary fact instructions under EC 403 require careful strategic consideration. (See CAVEAT 1 in FORECITE F 319 Inst 1.)
CAVEAT 2: Burden Of Proof In EC 403 Instructions—See CAVEAT 2 in FORECITE F 319 Inst 1.
F 357 Inst 10 Adoptive Admission: Requirement That The Conversation Be “Private”
*Add to CC 357:
5. The statement was made to the defendant in private.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Requirement Of Private Conversation—See People v. Davis (2005) 36 C4th 510, 539 [adoptive admission proper where “evidence showed that the defendant participated in a private conversation in which the crime was discussed and the circumstances offered him the opportunity to deny responsibility or otherwise dissociate himself from the crime, but that he did not do so”].)
Propriety Of Instruction On Preliminary Facts—See FORECITE F 319 Inst 1.
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 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 5.5 [Defendant’s Statements/Adoptive Admissions]
FORECITE CG 5.7 [Preliminary Facts]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 357 Inst 11 Adoptive Admissions: Limiting Instruction Re: Statements Of Others
*Add to CC 357:
Statements made by any person other than defendant may not, in and of themselves, be considered for their truth. Such statements may be considered by you only for the purpose of explaining what the defendant meant by any statements made by (him/her) and/or as a possible implied admission by the defendant.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Propriety Of Instruction—Similar instruction approved in People v. Davis (2005) 36 C4th 510, 539.
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 7.4 [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.
