SERIES 300 EVIDENCE
F 358 Evidence of Defendant‘s Statements
TABLE OF CONTENTS
F 358 Inst 1 (a-c) Specification Of Burden Of Proof Re: Preliminary Facts
F 358 Inst 2 (a & b) Confessions And Admissions: When Exculpatory Statements Included
F 358 Inst 3 Statements Of The Defendant May Be Disregarded
F 358 Inst 4 (a & b) Statements Of Defendant: Factors To Consider
F 358 Inst 5 (a-d) Defendant‘s Statements: Consideration Of Psychological And/Or Physical Coercion, Etc.
F 358 Inst 6 Jury Need Not Give All Parts Of Defendant‘s Statement Equal Weight
F 358 Inst 7 Inculpatory Statement Of One Defendant In Multi-Defendant Trial
F 358 Inst 8 Defense Theory That Confession Or Admission Was The Result Of Specific Threats From Others
F 358 Inst 9 Statement Of Defendant On Essential Fact: Disregard Unless Knowing And Voluntary Beyond A Reasonable Doubt
F 358 Inst 10 Defense Theory That Mental Impairment Caused Defendant To Make A False Confession
F 358 Inst 11 When Some Statements Are Recorded Or Written And Others Are Not
F 358 Inst 12 Vienna Convention
F 358 Inst 13 Unrecorded Statements To Undercover Police Agent Must Be Viewed With Caution
F 358 Inst 14 Modification When Record Includes Both “Verbal Acts” And “Admissions”
F 358 Inst 15 Consideration Of Intoxication Regarding Voluntariness And Trustworthiness Of Defendant’s Statements
F 358 Inst 16 Defendant’s Statements: Consideration Of Defendant’s Age
Return to Series 300 Table of Contents.
F 358 Inst 1 (a-c) Specification Of Burden Of Proof Re: Preliminary Facts
*TITLE: Modify CC 358, Instruction title as follows [deleted language is stricken]:
Evidence of Defendant’s Alleged Statements
*Replace or modify CC 358, first paragraph, as follows:
Alternative a [Evidence offered by prosecution: CALCRIM 224 and 376 FormatC Essential Fact Must Be Proved Beyond A Reasonable Doubt]:
The prosecution [contends] [has presented evidence alleging] that the defendant made [an] (oral/written) statement[s].
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 defendant made the alleged statement.
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 regarding the defendant’s alleged statement].
If you [all] find the above preliminary fact to exist, then you [may] [must] consider [the testimony of witness ___________ <name of witness>] [any evidence regarding the defendant’s alleged statement] in your deliberations.
However, you must not rely on [______’s <name of witness> testimony] [the defendant’s alleged statement] to find an essential fact or element of the charged offense[s] unless the prosecution has proved [the above preliminary fact beyond a reasonable doubt] [beyond a reasonable doubt that the defendant made the alleged statement].
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.
Alternative b:
You have heard evidence The prosecution contends that the defendant made [an] oral or written statement[s] (before the trial/while the court was not in session). You must decide, if you can, whether or not the defendant made any (such/of these) statement[s], in whole or in part. If you [unanimously] decide find it more likely than not that the defendant made such [a] statement[s] or a part of it, consider the statement[s], along with all the other evidence or such part, in attempting to reach your verdict. It is up to you to decide how much importance to give to such [a] statement[s].
If you do not unanimously find it more likely than not that the defendant made the statement[s] of any part thereof, you must not consider the statement[s] for any purpose.
However, you must not rely on such statement[s] or any part thereof to find any essential fact at issue in this trial or any element of the charge unless you unanimously find beyond a reasonable doubt that the defendant made the statement[s] or part thereof upon which you are relying.
Alternative c:
You have heard evidence The prosecution contends that the defendant made [an] oral or written statement[s] (before the trial/while the court was not in session). Each of you must decide, if you can, whether or not the defendant made any (such/of these) statement[s], in whole or in part. If any of you decide find it more likely than not that the defendant made such [a] statement[s] or a part of it, consider the statement[s], along with all the other evidence or such part, in attempting to reach your verdict. It is up to each of you to decide how much importance to give to such [a] statement[s].
However, you must not rely on such statement[s] or any part thereof to find any essential fact at issue in this trial or any element of the charge unless you unanimously find beyond a reasonable doubt that the defendant made the statement[s] or part thereof upon which you are relying.
Points and Authorities
Title: Improperly Comments On The Evidence.—See FORECITE F 100.1 Inst 5 [Comment On Evidence]; F 200.1.2 Note 2 [Titles].
“You Have Heard” To “The Prosecution Contends.”—The phrase “you have heard evidence” is in effect a comment on the evidence. (See generally FORECITE F 100.1 Inst 5; F 105.1 Inst 6.)
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 a 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.
“If You Can” – See FORECITE F 100.7 Inst 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 5.7 [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.)
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 358 Inst 2 (a & b) Confessions And Admissions: When Exculpatory Statements Included
CC Revision Alert: In 2008 the last paragraph of CC 358 was revised to address FORECITE’S criticism. The cautionary language is now limited to statements “tending to show … guilt….” In cases using the prior instruction there may be an appellate issue on this point especially since the CC committee has recognized that the pre-2008 version was erroneous.
Alternative a:
*Modify CC 358, paragraph 2, as follows [added language is underlined; deleted language is stricken]:
[You must consider with caution evidence of a defendant’s oral statement, which is alleged to incriminate (him/her) unless it was written or otherwise recorded.]
Alternative b:
*Add to end of CC 358:
An exculpatory out-of-court statement made by the defendant is not an [admission] [confession] and should not be viewed with caution.
Points and Authorities
The cautionary instructions regarding out-of-court statements made by the defendant are usually given where evidence of a statement amounting to an admission or confession made by the defendant is presented by the prosecution. The purpose of the instruction in that context is to benefit the defendant because it directs the jury to critically and consciously assess whether the inculpatory statement was actually made and accurately reported. (People v. Beagle (1972) 6 C3d 441, 455.)
However, when the defendant relies on his/her own prior statement, the rationale for the instruction disappears. Because the defendant is no longer in need of the protection afforded by the warning, the giving of the instruction is unnecessary. (Cf. People v. Jackson (1954) 42 C2d 540, 546; see also FORECITE F 3.18a [error to caution the jury regarding the exculpatory testimony of an accomplice called by the defense].)
Hence, CC 358 should not be given when the defendant’s out-of-court statements are entirely exculpatory and should be modified to only apply to allegedly inculpatory statements.
In People v. Vega (1990) 220 CA3d 310, the Court of Appeal considered whether the jury should be cautioned regarding admissions (CJ 2.70 / CJ 2.71) where the defendant’s statements were both exculpatory and incriminating. The court concluded that the trial judge had no sua sponte duty to modify the instructions because “a jury is capable of discerning whether an extrajudicial statement is an admission, which they are instructed to view with caution, or whether the statement is not an admission, to which the cautionary language does not apply.” (Vega at 318; see also People v. Senior (1992) 3 CA4th 765, 776-77.) However, these cases do not settle the question of the right to a clarifying instruction upon request. Because of the potential confusion, such a request should be granted.
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 4.5 [Right To Present Evidence And Fair Opportunity To Defend]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
NOTES
In two decisions originally published and later decertified, it was held that the jury should not be instructed to view the defendant’s out-of-court statements with caution when the defendant has relied upon those statements to support his/her defense. (People v. Allen DEPUBLISHED (1989) 215 CA3d 392; People v. Pacheco DEPUBLISHED (1989) 208 CA3d 415.)
If the request for the above instruction is denied, then counsel should have the right to inform the jury during argument which specific statements must not be viewed with caution.
CALJIC NOTE: See FORECITE F 2.70a.
F 358 Inst 3 Statements Of The Defendant May Be Disregarded
*Add to CC 358:
As with any other part of the prosecutor’s case, a statement of the defendant may be shown to be insufficiently corroborated or otherwise unworthy of belief. You are at liberty to disregard any admissions or confessions that are insufficiently corroborated or which you otherwise deem [unworthy of belief] [unreliable].
Points and Authorities
In Lego v. Twomey (1972) 404 US 477, 486-87 [30 LEd2d 618; 92 SCt 619], the high court observed that juries are “at liberty to disregard confessions that are insufficiently corroborated or otherwise unworthy of belief.” Therefore, if the defense relies upon a theory that the admission or confession should not be believed, an instruction pinpointing this theory should be given upon request. (See e.g., People v. Wright (1988) 45 C3d 1126, 1136-37; see also, FORECITE PG III(A).)
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 2.70b
F 358 Inst 4 (a & b) Statements Of Defendant: Factors To Consider
Alternative a:
*Insert the following after the final & of CC 358:
This kind of evidence is to be considered with caution, first because it may be misapprehended by the person who hears it; secondly, it may not be well remembered; thirdly, it may not be correctly repeated. Therefore, when the prosecution has produced evidence of an allegedly inculpatory statement by the defendant consider whether such a statement was in fact made, and if you find it was made, whether it has been quoted, paraphrased or summarized accurately in this trial.
Alternative b:
*Replace CC 358 with:
You heard testimony that the defendant made a statement to ___________ <describe or specify person to whom the statement was made>. When you consider this testimony, you should ask yourselves these questions:
First, did the defendant say the things the witnesses told you the defendant said? To answer this question, you must decide if the witness is honest, has a good memory and whether [he] [she] accurately understood the defendant.
Second, if the defendant did make the statement, was it correct? Here you must consider all of the circumstances under which the statement was made, including the defendant’s personal characteristics, and ask yourselves whether a statement made under these circumstances is one you can rely on.
After you have answered both these questions in the affirmative, you may rely on the testimony about the statement as much, or as little, as you think proper.
Points and Authorities
The primary purpose of CALCRIM 358 “is to assist the jury in determining if the statement was in fact made.” (People v. Beagle (1972) 6 C3d 441, 456; People v. Stankewitz II (1990) 51 C3d 72, 93-94.) Hence, unless there is an issue as to the voluntariness of the statement (See FORECITE F 358 Inst 5), the dangers associated with such statements normally arise from misapprehension, lack of recollection and inaccurate repetition. (See People v. Gardner (1961) 195 CA2d 829, 832.) CJ 2.70 and CJ 2.71 fail to assure that these factors will be considered by the jury. (People v. Garceau (1993) 6 C4th 140, 193-94 does not hold to the contrary because the instruction rejected therein was argumentative because it referred to specific evidence.)
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.
NOTES
Alternative a above is based on the Gardner language.
Alternative b above, which addresses the factors identified in Gardner, is adapted from the standard form proposed by the Federal Judicial Center (Fed. Jud. Ctr., Pattern Crim. Jury Instructions (1988) Inst. #36.)
Counsel should decide whether or not to offer both alternatives.
CALJIC NOTE: See FORECITE F 2.70c.
F 358 Inst 5 (a-d) Defendant’s Statements: Consideration Of Psychological And/Or Physical Coercion, Etc.
*Add to CC 358:
Alternative a:
In determining the believability of defendant’s alleged statements, consider any evidence of the circumstances surrounding the defendant’s interrogation, together with any psychological factors that may have influenced defendant in making such statements. The weight, if any, to be given by you to any alleged statement, is for your sole determination.
[Given in People v. Wimberly, No. 83812, Alameda County Superior Court.]
Alternative b:
If you find from the evidence that a statement was made by the defendant, you must then determine if it was produced by means of coercion. Although coercive methods do not necessarily produce false confessions or admissions, they certainly may have that effect. Therefore, if you determine that coercion did occur, consider this fact in determining the weight, if any, the defendant’s alleged statement should be given.
[Cf., “Suggested Form” in Deerings EC 406 (1986), p. 162.]
Alternative c:
In evaluating whether any statement, or act or omission alleged to have been made by a defendant outside of court and after a crime has been committed was knowingly and voluntarily made or done, consider the age, training, education, occupation, and physical and mental condition of the defendant, and [his] [her] treatment while in custody or under interrogation. Consider all other circumstances in evidence surrounding the making of the statement, confession or admission.
If, after considering the evidence, you decide that a statement, act or omission was made or done knowingly and voluntarily, you may give it such weight as you feel it deserves under the circumstances.
[Cf., Devitt, et al., Fed. Jury Prac. & Inst. (1992) §14.03.]
Alternative d:
In determining the voluntariness of any statement alleged to have been made by the defendant, consider all the circumstances in evidence surrounding the making of the statement, including but not limited to:
1. The defendant’s age;
2. The defendant’s intelligence;
3. Whether or not the defendant was given any advice of his constitutional rights;
4. The length of the detention;
5. Whether the questioning was repeated and/or prolonged;
6. Any physical punishments or hardships, such as deprivation of food or sleep.
If after considering all the evidence you determine that a statement, act or omission was made or done knowingly and voluntarily, you may give it such weight as you feel it deserves under the circumstances.
[Cf., United States v. Haswood (9th Cir. 2003) 350 F3d 1024.]
Alternative e:
You may consider evidence about the manner in which defendant’s statements were secured in determining the probative weight of those admissions. This matter is exclusively for the jury to assess.
Consider the physical and psychological environment that yielded the defendant’s statements in determining whether they are believable.
[Crane v. Kentucky (1986) 476 US 683, 689 [90 LEd2d 636]; Lego v. Twomey (1972) 404 US 477, 486-87 [30 LEd2d 618; 92 SCt 619].]
Points and Authorities
Relevance Of Factors Related To Voluntariness Of Statement.—The primary purpose of CJ 2.70 (now CC 358) “is to assist the jury in determining if the statement was in fact made.” (People v. Beagle (1972) 6 C3d 441, 456; People v. Stankewitz II (1990) 51 C3d 72, 94.) As a corollary to this concern, when there is an issue as to the truth or accuracy of the defendant’s statement as a result of the circumstances under which it was given, the jury should be further instructed to consider these circumstances. “[The] physical and psychological environment that yielded the confession can … be of substantial relevance to the ultimate factual issue of the defendant’s guilt or innocence.” (Crane v. Kentucky (1986) 476 US 683, 689 [90 LEd2d 636; 106 SCt 2142].) Hence, “juries have been at liberty to disregard confessions that are insufficiently corroborated or otherwise deemed unworthy of belief.” (Lego v. Twomey (1972) 404 US 477, 486-87 [30 LEd2d 618; 92 SCt 619]; see also FORECITE F 358 Note 9 [Statements Produced By Physical Violence Is Per Se Involuntary].) When the record contains evidence upon which the jury may question the credibility of the confession (see EC 406; Jefferson’s Synopsis Of California Evidence §25.4), the jury should be informed about the considerations set forth in the above instructions. (See also U.S. v. Hien Hai Hoac (9th Cir. 1993) 990 F2d 1099, 1107-09 [court is obligated under federal rules to instruct the jury concerning the weight to be accorded a defendant’s statement when the defendant raises a genuine issue concerning the voluntariness of the statement; Hof v. State (Maryland) (1995) 655 A2d 370 [337 Md 581] [requiring jury to consider whether confession was voluntary]; see also In re Cameron (1968) 68 C2d 487, 498 [coercion should be determined by considering the “totality of the circumstances” ].)
“The totality of the circumstances contains no ‘talismanic definition’ of voluntariness. [Citation.] Courts instead often consider the following factors: the youth of the accused, his intelligence, the lack of any advice to the accused of his constitutional rights, the length of detention, the repeated and prolonged nature of the questioning, and the use of physical punishment such as the deprivation of food or sleep. [Citation.]” (United States v. Haswood (9th Cir. 2003) 350 F3d 1024, 1027; see also Mincey v. Arizona (1978) 437 US 385, 398-99 [57 LEd2d 290; 98 SCt 2408] [finding that a statement could not have been voluntary when obtained from a defendant who was in the hospital, in near coma condition, and in great pain, while fastened to tubes, needles, and a breathing apparatus]; Haynes v. Washington (1963) 373 US 503, 510-12 [10 LEd2d 513; 83 SCt 1336] [invalidating a confession where the authorities held the suspect for more than five days and never advised him of his rights]; Ashcraft v. Tennessee (1944) 322 US 143, 149-54 [88 LEd 1192; 64 SCt 921] [invalidating a confession because police officers questioned suspect in relays for 36 hours straight, allowing him only a single 5-minute respite].)
(See also FORECITE F 356 Note 2 / F 105.2 Inst 5; FORECITE 358 Note 9.)
Juvenile Subject To Police Interrogation Cannot Be Compared To An Adult – See [NF] J. D. B. v. North Carolina (6/16/2011, No. 09-11121) ____ US ____ [180 LEd2d 310; 131 SCt 2394]; see also FORECITE F 358 Inst 16.
Right To Instruction On Relevant Factors—See FORECITE F 105.2 Inst 2.
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 2.70d.
F 358 Inst 6 Jury Need Not Give All Parts Of Defendant’s Statement Equal Weight
*Add to CC 358:
You are not bound to regard all parts of the defendant’s statement with equal confidence.
Points and Authorities
When evidence has been presented relating to the weight or credibility of certain parts of the defendant’s oral statement, the jury may rightfully give less weight or consideration to those portions of the statement. (See EC 406.) Hence, when appropriate, CC 358 should be supplemented to include the above clarification which is based on Deerings EC 406, “Suggested Form.”
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 2.70e.
F 358 Inst 7 Inculpatory Statement Of One Defendant In Multi-Defendant Trial
*Add to CC 358:
Alternative a:
You may only consider the statement of __________ <name of codefendant> in the case against [him] [her] and not in the case against the other defendants. What that means is that you may consider this statement against __________, and rely on it as much or as little as you think proper, but you may not consider or discuss it in any way when you are deciding whether the prosecution has proved, beyond a reasonable doubt, that the other defendants, __________ <give names>, committed the crime of __________. Please remember that.
[See Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS (1988) 37 [Confession of One Defendant in Multidefendant Trial].
Alternative b:
You may not in any way, however, consider the alleged statement of defendant __________ <name of codefendant> when evaluating the evidence against defendant __________ <name of codefendant> and in determining whether the government has proved the charge[s] against __________ <the co-defendant>.
[Cf., Devitt, et al., Fed. Jury Prac. & Inst. (1992) §1404.]
Alternative c:
Any statement [of one codefendant] should not be considered in any way whatsoever as evidence with respect to any other defendant on trial.
[5TH CIRCUIT PATTERN JURY INSTRUCTIONS – CRIMINAL 1.27 [Confession-Statement-Voluntariness (Multiple Defendants)] ¶ 3 (1997).]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
Propriety Of Instruction – The Bruton [Bruton v. U.S. (1968) 391 US 123, 128-31 [20 LEd2d 476; 88 SCt 1620]] doctrine applies when there is more than one defendant at a single trial. Suppose there are two defendants. Call them A and B. (See also, People v. Aranda (1965) 63 C2d 518, 530.) Suppose also A confesses to the crime after arrest but then decides not to testify at trial. If A’s confession incriminates not just A but also B, then it is Aranda/Bruton error to tell the jury what A said. This evidence would violate B’s Sixth Amendment right of confrontation, because A’s decision to remain silent at trial deprives B of the power to confront and cross-examine A. (See Bruton v. United States, supra, 391 US 123, 127–128; People v. Aranda, supra, 63 C2d 518, 530.)
Moreover, Bruton held that a defendant is deprived of his Sixth Amendment right of confrontation when the facially incriminating confession of a nontestifying codefendant is introduced at their joint trial, even if the jury is instructed to consider the confession only against the codefendant:
“There are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. . . .” (391 US at 135-136 (citations omitted).)
However, since Bruton it has been held that redaction and instruction may be acceptable where the co-defendant’s statement does not “expressly” implicate the defendant. In such cases if the court both gives a limiting instruction and redacts the statement “to eliminate not only [the defendant’s] name, but any reference to his or her existence,” then the prosecution may use the redacted confession in a joint trial. (Richardson v. Marsh (1987) 481 US 200, 211 [95 LEd2d 176; 107 SCt 1702].) This is proper even though the redacted confession may incriminate the defendant when considered in conjunction with other evidence against the defendant. (Id. at p. 208; see also People v. Jefferson (2008) 158 CA4th 830, 844-845; compare, People v. Fletcher (1996) 13 C4th 451, 456 [redaction will be insufficient “if, despite the editing, reasonable jurors could not avoid drawing the inference that the defendant was the coparticipant designated in the confession …”].)
Thus, while counsel may still have doubts about the efficacy of the limiting instruction, and may decide to object to such an instruction on that basis (See Caveat #1, below), there may be situations in which counsel may consider such an instruction to be helpful.
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 1.13.4 [Aranda/Bruton]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CAVEAT # 1: It has been questioned whether the jury can follow an instruction to consider incriminating statements as evidence of guilt only of the one who made the statements. (See People v. Berzups (NY 1980) 402 NE2d 1155, 1158-59; see also Fowler v. Ward (10th Cir. 2000) 200 F3d 1302 [trial court violated petitioner’s right to confront the witnesses against him when it allowed the state to admit a redacted confession against petitioner’s co-defendant, and failed to give an appropriate limiting instruction]; see also Richardson v. Marsh (1987) 481 US 200 [107 SCt 1702; 95 LEd2d 176] [mandating that trial court must both (1) assure that the confession is redacted and (2) give an appropriate limiting instruction that the confession is only to be considered against the confessor]; see also PG X(E)(19)(1) [Inability Of Limiting Instructions To Cure Error].)
CAVEAT # 2: It may constitute ineffective assistance of counsel to fail to move for a severance in a Bruton (Bruton v. U.S. (1968) 391 US 123 [88 SCt 1620, 1623; 20 LEd2d 476]) situation. (See Caplow & Griffin, Multidefendant Criminal Cases: Federal Law & Procedure (West, 1998) § 7:3.)
TIMING NOTE: “The Richardson limiting instruction must be given immediately following the introduction of the co-defendant’s confession to safeguard against inappropriate use of the confession against the non-confessing co-defendant.” (Fowler v. Ward, 200 F3d at 1307.)
NOTE: Applicability Of Aranda/Bruton To Declarations Against Penal Interest – See FORECITE F 358 Note 14.
ALERT # 1: Lilly v. Virginia (1999) 527 US 116, 132-39 [144 LEd2d 117; 119 SCt 1887] (plurality opinion), concluded that a co-defendant’s extrajudicial statements are presumptively suspect and unreliable for use against the defendant even if the statement was against the co-defendant’s penal interest. The plurality opinion pointed out that a long line of Supreme Court cases “consistently either stated or assumed that the mere fact that one accomplice’s confession qualified as a statement against his penal interest did not justify its use as evidence against another person.” (Lilly, 119 SCt at 1896.)
ALERT # 2: An accomplice’s statement is only admissible as a declaration against penal interest (EC 1230) as to portions that are disserving to the accomplice. (People v. Duarte (2000) 24 C4th 603 [101 CR2d 701]; see also Williamson v. U.S. (94) 512 US 594 [129 LEd2d 476; 114 SCt 2431].)
ALERT # 3: Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354] provides a basis for challenging admission of any testimonial hearsay as to which the defendant has been denied confrontation and the declarant is unavailable. (See People v. Pena REMANDED/UNPUB’D (2005) 128 CA4th 1219 [state violated both Bruton and Crawford]; see also FORECITE PG VII(C)(43) [Crawford Update].)
RESEARCH NOTES: Terri Towery, Capital Case Notes For January 2008, CPDA CLARAWEB Forum January 2008, People v. Jefferson (2008) 158 CA4th 830 [Aranda/Bruton error, in the admission in the joint trial of a secretly taped conversation between one of the incarcerated codefendants and his aunt which implicated the other defendant].
Annotation, Right to severance where codefendant has incriminated himself, 54 ALR2d 830, secs. 3-5, and Later Case Service. See Annotation, Antagonistic defenses as ground for separate trials of codefendants in criminal case, 83 ALR3d 245, supp. secs. 5, 9.5, 10, 30, and Later Case Service.
Terri Towery, Capital Case Notes For January 2008, CPDA CLARAWEB Forum January 2008, People v. Reyes (2008) 159 CA4th 214 [defendant’s statement to police that arguably implicated the defendant implicated Aranda/Bruton].
CALJIC NOTE: See FORECITE F 2.70g.
F 358 Inst 8 Defense Theory That Confession Or Admission Was The Result Of Specific Threats From Others
*Add to CC 358:
It is [the] [a] defense theory that the defendant’s statement was due to fear of retaliation by the person who actually committed the crime.
[Consider this defense theory in light of all the evidence in deciding whether the prosecution has proven beyond a reasonable doubt that the accused committed the charged crime.]
[After considering this defense theory, in light of all the evidence, any juror who has a reasonable doubt that the accused committed the charged crime must give (him/her) the benefit of that doubt and vote to acquit.]
Points and Authorities
Where the accused contends that his or her admission/confession was given in response to threats by others, the accused should have a right to a pinpoint instruction on this defense theory. “[A]s a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.” (Mathews v. United States (1988) 485 US 58, 63 [99 LEd2d 54; 108 SCt 883] [citing Stevenson v. United States (1896) 162 US 313, 323 [40 LEd 980; 16 SCt 839] [refusal of voluntary manslaughter instruction in murder case where self defense was primary defense constituted reversible error]; see also Keeble v. U.S. (1973) 412 US 205, 207 [36 LEd2d 844; 93 SCt 1993].) Hence, when the defendant’s statement goes to an essential fact or element of the charge (see FORECITE F 358 Inst 9), the defendant has a right to pinpoint instructions on this theory of the defense and upon the applicability of the burden of proof to that theory. (People v. Saille (1991) 54 C3d 1103, 1120 [defendant has the right to a pinpoint instruction which relates “his [evidentiary theory] to an element of the offense” ].)
People v. Boyette (2002) 29 C4th 381 recognized that a valid defense theory may be predicated upon evidence that the defendant and his family had been threatened, thus persuading the defendant to change his story from blaming another man for the shooting to accepting blame himself for fear of retaliation. This evidence was not barred by the hearsay rule, because it was not offered for its truth (i.e., that others actually intended to retaliate against the defendant or his family), but for a different purpose: to show the effect of the statement on the defendant. (See People v. Jackson (1991) 235 CA3d 1670, 1680-81.)
Identification Of Parties.—See FORECITE F 100.2 Note 1.
CALJIC NOTE: See FORECITE F 2.70h.
F 358 Inst 9 Statement Of Defendant On Essential Fact: Disregard Unless Knowing And Voluntary Beyond A Reasonable Doubt
Alternative a [Evidence offered by prosecution: CALCRIM 224 and 376 Format—Essential Fact Must Be Proved Beyond A Reasonable Doubt]:
The prosecution contends that the defendant knowingly and voluntarily made [a statement about the crime] [__________ <describe statement>].
However, you must not rely on this alleged statement to find an essential fact or element of the charged offense[s] unless the prosecution has proved beyond a reasonable doubt that the defendant made the alleged statement and that (he/she) did so knowingly and voluntarily.
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.
Alternative b:
Evidence relating to any alleged statement, act or omission alleged to have been made or done by a defendant outside of court and after a crime has been committed should always be considered with caution and weighed with great care. All such evidence should be disregarded entirely unless the other evidence in the case convinces you beyond a reasonable doubt that the statement, act or omission was made or done knowingly and voluntarily.
In determining whether any statement, act or omission alleged to have been made by a defendant outside of court and after a crime has been committed was knowingly and voluntarily made or done, consider the age, training, education, occupation, and physical and mental condition of the defendant, and [his] [her] treatment while in custody or under interrogation as shown by the evidence in the case. Also consider all other circumstances in evidence surrounding the making of the statement, confession, or admission.
If, after considering the evidence, you determine that a statement, act or omission was made or done knowingly and voluntarily, you may give it such weight as you feel it deserves under the circumstances.
[Cf., Devitt, et al., Fed. Jury Prac. & Inst. (1992) §1404.]
Points and Authorities
When the defendant’s out-of-court statement goes to an essential fact or element of the charge the prosecution should be required to prove beyond a reasonable doubt that the statement was knowing and voluntary. (See In re Winship (1970) 397 US 358 [90 SCt 1068; 25 LEd2d 368]; CC 224; CC 276; FORECITE F 103.2 Inst 2.)
When the defense contends that the defendant did not knowingly and voluntarily make the statement the defendant has the right to an instruction relating that theory to the burden of proof. (See FORECITE F 315.1.2 Inst 2.)
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 4.1 [Right To Instruct The Jurors On Defense Theories]
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.
RESEARCH NOTES
See Annotation, Right to severance where co-defendant has incriminated himself, 54 ALR2d 830, secs. 3-5, and Later Case Service. See Annotation, Antagonistic defenses as ground for separate trials of co-defendants in criminal case, 83 ALR3d 245, supp. secs. 5, 9.5, 10, 30, and Later Case Service.
CALJIC NOTE: See FORECITE F 2.70g.
F 358 Inst 10 Defense Theory That Mental Impairment Caused Defendant To Make A False Confession
*Add to CC 358:
Alternative a [CC 3400 Format]:
The People must prove that the defendant committed the charged offense. The defendant contends that (he/she) has a mental disorder which caused (him/her) to make a false confession and that (he/she) did not commit the offense.
The People must prove that the defendant is guilty beyond a reasonable doubt. The defendant does not need to prove (he/she) falsely confessed.
If you have a reasonable doubt about whether the defendant’s confession was truthful or whether the defendant committed the charged offense[s], you must find (him/her) not guilty.
Alternative b:
Even if you find that the defendant’s statement was voluntary, you must also decide whether it was truthful. In deciding truthfulness, you should consider whether the defendant had a mental disorder which caused [him] [her] to make a false [confession] [admission]. [If you have a reasonable doubt whether the statement was truthful, you must resolve that doubt in favor of the defendant and [find [him] [her] not guilty] [find that the statement was not truthful].]
Points and Authorities
The United States Supreme Court has recognized that “a defendant’s case may stand or fall on his ability to convince the jury that the manner in which the confession was obtained casts doubt on its credibility.” (Crane v. Kentucky (1986) 476 US 683, 689 [90 LEd2d 636; 106 SCt 2142].)
Hence, expert testimony regarding false confessions may be appropriate to “let the jury know that a phenomenon known as false confessions exists, how to recognize it, and how to decide whether it fit the facts of the case being tried.” (U.S. v. Hall (7th Cir. 1996) 93 F3d 1337, 1345.) In other words, the defendant should have the right to present expert testimony regarding a mental disorder which may have caused him to make a false inculpatory statement. (See U.S. v. Shay (1st Cir. 1995) 57 F3d 126, 129-30; see also U.S. v. Hall (7th Cir. 1996) 93 F3d 1337, 1345; State v. Buechler (NE 1998) 572 NW2d 65, 73; Miller v. State (IN 2002) 770 NE2d 763 [defendant was denied an opportunity to present a defense by exclusion of the proposed testimony of social psychologist Dr. Richard Ofshe]; see also Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 2012) § 60:26.)
Moreover, evidence that certain police interrogation techniques have a tendency to produce unreliable acknowledgments of guilt may serve to refute the commonly held notion that people do not confess to crimes they did not commit. (See People v. Ramos (2004) 121 CA4th 1194 [implying that expert testimony may be admissible if there are facts suggesting that the confession was false]; see also People v. Page (1991) 2 CA4th 161, 181-83 [upholding limitation on the scope of expert testimony regarding police interrogation techniques and false confessions but listing matters as to which the expert may testify].)
Hence, the defendant has a right to an instruction pinpointing the defense theory and relating it to the burden of proof. (See FORECITE F 315.1.2 Inst 2.)
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 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge]
FORECITE CG 4.5 [Right To Present Evidence And Fair Opportunity To Defend]
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.
USE NOTE: The second bracketed sentence of the sample instruction would be appropriate when the statement is an “essential fact” which the prosecution must prove beyond a reasonable doubt. (See CJ 2.01 and CJ 2.02.)
RESEARCH NOTES:
“The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation,” Richard A. Leo & Richard J. Ofshe, 88 Journal of Criminal Law and Criminology 429, 1998.
For an excellent discussion of various techniques employed by the police to break down a suspect’s resistance and obtain a confession, see R. Ofshe and R. Leo, “The Social Psychology of Police Interrogation, The Theory and Classification of True and False Confessions,” Studies in Law, Politics and Society, Vol. 16, pp. 189-251; and R. Ofshe and R. Leo, “The Decision to Confess Falsely: Rational Choice and Irrational Action” (1997).
CALJIC NOTE: See FORECITE F 2.70j.
F 358 Inst 11 When Some Statements Are Recorded Or Written And Others Are Not
*Replace CC 358, paragraph 3, when appropriate, with the following:
You must consider the following alleged statements with caution:
[Enumerate unrecorded statements.]
Points and Authorities
The cautionary instructions regarding defendant’s statements do not normally apply to statements which were tape recorded or presented in writing. (See CC 358, paragraph 2.) However, when some statements were recorded or in writing and others were not, there is a danger that the jury will be confused if they are simply told that the cautionary instruction does not apply to oral statements which were presented by a tape recording or in writing. Under such an instruction, the jury might conclude that if the defendant’s tape recorded admissions “proved” the non-tape-recorded admission, then none of the defendant’s oral admissions need be viewed with caution. Accordingly, in such a case, the possibility of confusion may be eliminated by specifically instructing the jury as to which statements should and should not be viewed with caution. (People v. Mayfield (1997) 14 C4th 668, 775-76.)
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 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 2.70 n6.
F 358 Inst 12 Vienna Convention
*Add to CC 358:
To be voluntary, a statement must be freely and willingly given with complete understanding and without coercion, duress, threats, use of violence, fear of injury, or any suggestions or promises of leniency or reward. A statement induced by the slightest hope of benefit or the remotest fear of injury is not voluntary. To be voluntary, a statement must be the product of a free will and not under compulsion or any necessity imposed by others.
You may consider the legality, duration, and conditions of detention as factors relevant to the question of whether or not a statement was freely and voluntarily made. However, under the law, in order for a statement to be excluded because of illegal detention, it must be shown that the statement was, in fact, induced by such illegal detention.
Reference has been made in this case to the Vienna Convention treaty. This is an international treaty to which many countries, including the United States and Mexico, are parties. The Vienna Convention provides in part that a foreign national, upon request, has a right to have his country’s consulate notified that he is arrested or detained in any other manner. The authorities should inform the person concerned without delay of his rights under this treaty. Defendant in this case contends that the police failed to inform him of his rights under the Vienna Convention. As a general rule, however, international treaties do not create individual rights which are privately enforceable in court proceedings. Any failure by the police to inform Defendant of his rights under this treaty would not, by itself, make his statement involuntary. Consider this evidence along with all the other evidence in determining the voluntariness of Defendant’s statements.
[Adapted from instruction given in State of Georgia v. Bautista Ramirez (Superior Court of Dekalb County, No. 00CR3159-4).]
Points and Authorities
Under Article 36 of the 1963 Vienna Convention on Consular Relations (VCCR), local authorities must inform all detained foreigners “without delay” of their right to have their consulate notified of their detention. At the request of the national, the authorities must then notify the consulate without delay, facilitate unfettered consular communication and grant consular access to the detainee. Consuls are empowered to arrange for their nationals’ legal representation and to provide a wide range of humanitarian and other assistance, with the consent of the detainee. Local laws and regulations must give “full effect” to the rights enshrined in Article 36. The USA ratified the VCCR without reservations in 1969. So fundamental is the right to consular notification and access that the U.S. Department of State considers it to be required under customary international law in all cases, even if the detainee’s home country has not signed the VCCR. As of 1 January, 2000, at least 165 countries were parties to the VCCR.
The burden of informing the detainee rests with the state. Vienna Convention, Article 36 confers rights on individuals, not states. (See e.g., United States v. Briscoe (D. V.I. 1999) 69 FSupp2d 738; United States v. Hongla-Yamche (D. Mass. 1999) 55 FSupp2d 74; United States v. Torres-del Muro (C.D. Ill. 1999) 58 FSupp2d 931.
In March of 2004, the International Court of Justice determined in the Avena case (Mexico v. USA) that advisement of consular rights “without delay” means “a duty upon the arresting authorities to give that information to an arrested person as soon as it is realized that the person is a foreign national, or once there are grounds to think that the person is probably a foreign national.”
A violation of Article 36 may provide the basis for instruction to the jury. (See e.g., State of Georgia v. Bautista Ramirez (Superior Court of Dekalb County, No. 00CR3159-4) [court instructed the jury about the provisions of Article 36 of the Vienna Convention, right to consular notification, and that the jury could consider its violation in determining whether a confession was involuntary]; cf. Breard v. Greene (1998) 523 US 371 [140 LEd2d 529; 118 SCt 1352] [Supreme Court considered Breard’s argument on his habeas petition, but the court found that the Vienna Convention issue was procedurally defaulted because Breard did not raise it in the trial court].)
Identification Of Parties—See FORECITE F 100.2 Note 1.
CALJIC NOTE: See FORECITE F 2.70i.
F 358 Inst 13 Unrecorded Statements To Undercover Police Agent Must Be Viewed With Caution
As a matter of common sense, the absence of a tape recording of a person’s alleged out-of-court statement makes that statement less reliable. In fact, some jurisdictions require tape recording of custodial interrogations. (See e.g., Stephan v. State, 711 P2d 1156 (Alaska 1985); State v. Scales, 518 NW2d 587 (Minn. 1994); see also 725 Ill. Comp. Stat. Ann. 5/103-2.1 (2004) [Illinois statute requiring recording in homicide cases]; but see People v. Holt (CA 1997) 15 C4th 619 [63 CR2nd 782] [declining to apply exclusionary rule to unrecorded interrogations].)
In addition, a recent survey (that does not claim to be complete) lists police departments throughout ten additional states, many including the departments of large cities, that audio- or videotape interrogations. (See When the Innocent Speak: False Confessions, Constitutional Safeguards, and the Role of Expert Testimony, Nadia Soree, 32 Am. J. Crim. L. 191, 193 (2005).)
Accordingly, regardless of whether or not unrecorded statements are admissible, such statements should be viewed with caution and the jury should be so instructed. (See People v. Slaughter (2002) 27 C4th 1187, 1200 [120 CR2d 477] [admonition to view non-recorded statements with caution applies to a defendant’s incriminating statements]; see also e.g., CJ 2.70 and 2.71; CC 358.)
In sum, when the prosecution has presented testimony from an undercover police agent about an unrecorded statement allegedly made by the defendant, that testimony should be viewed with caution.
SAMPLE INSTRUCTION # 1:
Evidence of the defendant’s out of court statements are considered dangerous, first because the statements may be misapprehended by the person who hears it; secondly, they may not be well remembered; thirdly, they may not be correctly repeated. Therefore, when the prosecution has produced testimony of an undercover police agent regarding an alleged out of court statement by the defendant which was not tape recorded, you should carefully consider whether such a statement was in fact made. Also, if you find it was made, you should carefully consider whether it was quoted, paraphrased or summarized accurately by the undercover agent.
SAMPLE INSTRUCTION # 2:
You heard testimony that the defendant made an unrecorded statement to a police agent. In evaluating this testimony, ask yourselves whether the defendant actually said the things the police agent told you the defendant said. To answer this question, you must decide if the witness is honest, has a good memory and whether [he] [she] accurately understood the defendant.
[Cf. Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTION 36 [Defendants Confession] (1988).]
SAMPLE INSTRUCTION # 3:
You must view the defendant’s unrecorded oral statements allegedly made to _____________ <name of undercover officer> with caution because the specific words used and the ability to remember them are important to the correct understanding of any oral communication. The presence, absence, or change of even a single word may substantially change the true meaning of even the shortest sentence.
[Cf. NEW JERSEY MODEL JURY CHARGES – CRIMINAL Chapter 1 (II) Other Non-2C Charges [Statements of Defendant] 1/29/96 (New Jersey ICLE 4th ed. 1997).]
F 358 Inst 14 Modification When Record Includes Both “Verbal Acts” And “Admissions”
*Add to CC 358:
You must consider the following alleged statements with caution:
_______________ <describe or state “admissions” to which cautionary instructions apply>.
Points and Authorities
In People v. LaSalle (1980) 103 CA3d 139, 149-52, the court held that instruction upon the defendant’s admission or confession may be given only if the defendant’s statements tending to show guilt are in the nature of hearsay statements, which are admissible under the admission exception, to prove the truth of the matter asserted in the statements. LaSalle suggested amendatory language limiting the admission and confession instructions to extrajudicial statements by a defendant which are offered to prove the truth of the content of the statement. (Id. at 150-52; see also People v.
Zichko (2004) 118 CA4th 1055, 1057; but see People v. Brackett (1991) 229 CA3d 13, 18-20; People v. Bunyard (1988) 45 C3d 1189, 1224; People v. Ramirez (1974) 40 CA3d 347, 352.) If the jury has heard evidence of both “verbal acts” and “admissions,” the trial judge may choose to modify the instruction to distinguish between the two types of statements.
[RESEARCH NOTE: See FORECITE BIBLIO 2.70.]
CALJIC NOTE: See FORECITE F 2.70 n3.
F 358 Inst 15 Consideration Of Intoxication Regarding Voluntariness And Trustworthiness Of Defendant’s Statements
[When appropriate modify requested instruction on factors relating to voluntariness or truthfulness of defendant’s statements (F 358 Inst 4 and Inst 5) to include consideration of intoxication when the event was perceived and/or at the time of questioning]
Points and Authorities
See FORECITE F 3426 Inst 8.
F 358 Inst 16 Defendant’s Statements: Consideration Of Defendant’s Age
*Add to CC 358:
In evaluating whether any statement, or act or omission alleged to have been made by a defendant outside of court and after a crime has been committed was knowingly and voluntarily made or done, consider the age, training, education, occupation, and physical and mental condition of the defendant, and [his] [her] treatment while in custody or under interrogation. Consider all other circumstances in evidence surrounding the making of the statement, confession or admission.
With respect to the defendant’s age consider that a juvenile, subject to police interrogation, no matter how sophisticated, cannot be compared to an adult. Generally juveniles are more vulnerable or susceptible to outside pressures than adults.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
Basis For Special Instruction On Juvenile Vulnerability – “A child’s age is far ‘more than a chronological fact.’ [Citations.] It is a fact that ‘generates commonsense conclusions about behavior and perception.’ [Citation.] Such conclusions apply broadly to children as a class. And, they are self-evident to anyone who was a child once himself, including any police officer or judge.
Time and again, this Court has drawn these commonsense conclusions for itself. We have observed that children ‘generally are less mature and responsible than adults,’ [citation]; that they ‘often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them,’ [citation]; that they ‘are more vulnerable or susceptible to . . . outside pressures’ than adults, [citation]; and so on. [Citation.] Addressing the specific context of police interrogation, we have observed that events that ‘would leave a man cold and unimpressed can overawe and overwhelm a lad in his early teens.’ [Citation.] Describing no one child in particular, these observations restate what ‘any parent knows’ – indeed, what any person knows — about children generally. [Citation.]” ([NF] J. D. B. v. North Carolina (6/16/2011, No. 09-11121) ____ US ____ [180 LEd2d 310; 131 SCt 2394].)
See also FORECITE F 358 Inst 4 and Inst 5.
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.
F 358 Inst 17 Questions Posed By Police Officers Are Not Evidence
You will be hearing the recorded statements of defendant ________ [insert name of defendant]. You are cautioned that only statements actually made by the defendant are to be considered as evidence. The statements and the questions posed by detectives or police officers are not evidence and should not be considered by you as evidence. Police officers are permitted to use various methods to try to obtain admissions from individuals suspected of committing a crime. Often times these tactics involve using lies, deceit, false assumptions, false statements allegedly made by others, and unproven theories and hypotheticals.
Therefore, do not assume to be true any statement made by, nor any insinuation suggested by a question posed by any detective or officers. Questions may be considered only to the extent they help you understand the answers.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
Necessity For Instruction – Without a limiting instruction the jurors may improperly consider questions posed by the person interviewing the defendant as evidence in violation of the confrontation clause of the federal constitution. (See Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354].)
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 5.3.3 [Hearsay Violation As Confrontation Violation]
In death penalty cases additional federal claims should be added, including, but not limited to, those in FORECITE CG 13.
