SERIES 300 EVIDENCE
F 358 NOTES
TABLE OF CONTENTS
F 358 Note 1 Applicability To Admissions Not Offered For The Truth Of The Matter Asserted
F 358 Note 2 Prejudicial Effect Of Failure To Caution About Defendant‘s Statement
F 358 Note 3 Cautionary Instruction Applies To Statements Made Before, During, Or After The Crime
F 358 Note 4 Defense Objection To Preclude Cautionary Instruction As To Defendant‘s Statements
F 358 Note 5 Confession Of Co-Defendant: Inability Of Instruction To Limit Or Cure Prejudice
F 358 Note 6 Confessions And Admissions: Expert Testimony Regarding Defendant‘s Language/Communication Difficulties To Explain Discrepancies Between Statements To Police And Defendant‘s Version
F 358 Note 7 Exclusion Of Inculpatory Statement By Third Party As Hearsay: Due Process Violation
F 358 Note 8 Death Penalty Trial: Statements Of DefendantC Cautionary Instruction Should Only Be Given On Request
F 358 Note 9 Statements Produced By Physical Violence Is Per Se Involuntary
F 358 Note 10 CC 358 Should Not Be Given At Penalty Trial
F 358 Note 11 Confessions: Deliberately Eliciting From Defendant Who Has Been Charged
F 358 Note 12 Cautionary Instruction On Defendant’s Statements Should Not Be Given Where Defendant’s Words Constitute The Crime
F 358 Note 13 Defendant’s Unrecorded Out-Of-Court Statement: Sua Sponte Requirement
F 358 Note 14 Applicability Of Aranda/Bruton To Declarations Against Penal Interest
F 358 Note 15 Age Is Relevant To Determining Whether A Minor Is In Custody For Miranda Purposes
Return to Series 300 Table of Contents.
F 358 Note 1 Applicability To Admissions Not Offered For The Truth Of The Matter Asserted
See FORECITE F 358 Inst 14.
F 358 Note 2 Prejudicial Effect Of Failure To Caution About Defendant’s Statement
The following factors should be considered in evaluating whether the failure to instruct upon admissions was prejudicial. First, whether there is conflicting evidence concerning whether the statements were made. (People v. Bemis (1949) 33 C2d 395, 400-01; compare with People v. Beagle (1972) 6 C3d 441, 456.) Second, whether the oral admissions were reported by witnesses friendly to the accused or biased against him. (People v. Lopez (1975) 47 CA3d 8, 14.) Third, the relative importance of the admissions. (See People v. Ford (1964) 60 C2d 772, 800; Lopez, 47 CA3d at 14.)
[Research Note: See FORECITE BIBLIO 2.70]
CALJIC NOTE: See FORECITE F 2.70 n5.
F 358 Note 3 Cautionary Instruction Applies To Statements Made Before, During, Or After The Crime
“The purpose of the cautionary instruction [as to the defendants statements] is to assist the jury in determining if the statement was in fact made.” People v. Beagle (1972) 6 C3d 441, 456; see also People v. Carpenter (1997) 15 C4th 312. This purpose applies to any oral statement of the defendant, whether made before, during, or after the crime. (Carpenter, 15 C4th at 392-93.)
CALJIC NOTE: See FORECITE F 2.70 n7.
F 358 Note 4 Defense Objection To Preclude Cautionary Instruction As To Defendant’s Statements
In People v. Frye (1998) 18 C4th 894, 958-9 the Supreme Court concluded that CJ 2.71 (now CC 358) is a cautionary instruction, the effect of which is beneficial to the defendant. Hence, should the defense wish to avoid such an instruction for strategic reasons (e.g., the instruction could encourage the jury to conclude that the defendant’s statements admitted or confessed guilt), the defense should be able to resist the instruction under the theory that a beneficial cautionary instruction may be waived at the discretion of the defendant. (See FORECITE F 362 Note 7; F 376 Note 7.)
CALJIC NOTE: See FORECITE F 2.70 n8.
F 358 Note 5 Confession Of Co-Defendant: Inability Of Instruction To Limit Or Cure Prejudice
“The matrix of Aranda is that jurors are unable to comply with an admonition to disregard information revealed through inadmissible evidence even when such admonition comes from the judge and is directed at specific evidence at the moment it comes in.” (People v. Laursen (1968) 264 CA2d 932, 938; see also Gray v. Maryland (1998) 523 US 185 [140 LEd2d 294; 118 SCt 1151] [replacing defendant’s name with an obvious blank may call the jurors’ attention to the removed name and thereby overemphasize the importance of the confession’s accusation once the jurors understand the reference]; see also People v. Song (2004) 124 CA4th 973 [admission of co-defendant’s statements violated Bruton, Aranda and Crawford; limiting instruction did not cure].)
CALJIC NOTE: See FORECITE F 2.70 n9.
F 358 Note 6 Confessions And Admissions: Expert Testimony Regarding Defendant’s Language/Communication Difficulties To Explain Discrepancies Between Statements To Police And Defendant’s Version
(See U.S. v. Vallejo (9th Cir. 2001) 237 F3d 1008, 1019 [abuse of discretion in refusing to admit expert testimony of school psychologist who had reviewed defendant’s special education files, sought to be introduced to explain discrepancies between defendant’s version of the statements he gave to the officer and the officer’s recollection].)
CALJIC NOTE: See FORECITE F 2.70 n10.
F 358 Note 7 Exclusion Of Inculpatory Statement By Third Party As Hearsay: Due Process Violation
When a hearsay statement bears persuasive assurances of trustworthiness and is critical to the defense, the exclusion of that statement may rise to the level of a constitutional violation of due process. (Chambers v. Mississippi (1973) 410 US 284, 302 [35 LEd2d 297; 93 SCt 1038].)
When deciding whether an evidentiary rule violates the Due Process Clause or the 6th Amendment, the Ninth Circuit applies a 5-part balancing test. (U.S. v. Duran (9th Cir. 1994) 41 F3d 540, 545; Whelchel v. Washington (9th Cir. 2000) 232 F3d 1197, 1211.) The factors considered are: (1) the probative value of the excluded evidence on the central issue; 2) its reliability; 3) whether it is capable of evaluation by the trier of fact; 4) whether it is the sole evidence on the issue or merely cumulative; and 5) whether it constitutes a major part of the attempted defense. (Tinsley v. Borg (9th Cir. 1990) 895 F2d 520, 530.)
Self-inculpatory statements have long been recognized as bearing strong indicia of reliability. (Williamson v. U.S. (1994) 512 US 594, 599 [129 LEd2d 476; 114 SCt 2431] [“[R]easonable people, even reasonable people who are not especially honest, tend not to make self-inculpatory statements unless they believe them to be true” ].)
Accordingly, exclusion of inculpatory statements by a third party which are critical to the defense may implicate the federal constitution. (See Chia v. Cambra (9th Cir. 2002) 281 F3d 1032, 1039 [statements to police were reliable and crucial to defense and it was constitutional error for trial court to exclude them based on “mechanistic application” of state hearsay rules].)
CALJIC NOTE: See FORECITE F 2.70 n11.
F 358 Note 8 Death Penalty Trial: Statements Of Defendant—Cautionary Instruction Should Only Be Given On Request
See FORECITE F 8.84.1 n8.
CALJIC NOTE: See FORECITE F 2.70 n12.
F 358 Note 9 Statements Produced By Physical Violence Is Per Se Involuntary
A confession accompanied by physical violence is per se involuntary, while one accompanied by psychological coercion is not. (United States v. Miller (9th Cir. 1993) 984 F2d 1028, 1030. Thus, in psychological coercion cases, the court looks to the totality of the circumstances surrounding a confession. (Id. at 1031.)
CALJIC NOTE: See FORECITE F 2.70 n13.
F 358 Note 10 CC 358 Should Not Be Given At Penalty Trial
See People v. Slaughter (2002) 27 C4th 1187, 1201; see also People v. Livaditis (1992) 2 C4th 759, 782-84 [2.71 should be given at the penalty phase only upon request by defendant because the demarcation between the aggravating and mitigating effect of a defendant’s statement can be blurred and more open to interpretation than the distinction between inculpatory and exculpatory effect]. (See also People v. Slaughter, 27 C4th at 1201.)
CALJIC NOTE: See FORECITE F 2.71 n10.
F 358 Note 11 Confessions: Deliberately Eliciting From Defendant Who Has Been Charged
A Massiah (Massiah v. United States (1964) 377 US 201 [12 LEd2d 246; 84 SCt 1199] violation occurs when the government deliberately elicits incriminating statements from a defendant after that person has been formally charged with a crime. In Fellers v. United States (2004) 540 US 519 [157 LEd2d 1016; 124 SCt 1019] the police arrested the defendant after he had been indicted and informed him of what he had been indicted for. Fellers then made admissions. In a unanimous decision, the Supreme Court ruled that these facts showed a deliberate eliciting of information, finding a Messiah violation and requiring suppression.
CALJIC NOTE: See FORECITE F 2.71 n13.
F 358 Note 12 Cautionary Instruction On Defendant’s Statements Should Not Be Given Where Defendant’s Words Constitute The Crime
Where the defendant’s words constitute the crime itself, the jury is not to be instructed that those words should be viewed with caution. Such an instruction may mislead the jury concerning the burden of proof. (People v. Zichko (2004) 118 CA4th 1055.)
CALJIC NOTE: See FORECITE F 2.71 n14.
F 358 Note 13 Defendant’s Unrecorded Out-Of-Court Statement: Sua Sponte Requirement
“It is well established that the trial court must instruct the jury on its own motion that evidence of a defendant’s unrecorded, out-of-court oral admissions should be viewed with caution. [Citations.]” (People v. McKinnon (2011) 52 CA4th 610, 679; see also People v. Cartwright UNPUBLISHED (F017611).)
CALJIC NOTE: See FORECITE F 2.71.7 n1.
F 358 Note 14 Applicability Of Aranda/Bruton To Declarations Against Penal Interest – Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354] provides a basis for challenging the admission of declarations against penal interest where the declarant is unavailable and was not confronted by the defendant. (Compare People v. Duarte (2000) 24 C4th 603; People v. Greenberger (1997) 58 CA4th 298; Williamson v. U.S. (1994) 512 US 594 [129 LEd2d 476; 114 SCt 2431].)
ALERT: See FORECITE F 358 Inst 7 [Inculpatory Statement Of One Defendant In Multi-Defendant Trial].
F 358 Note 15 Age Is Relevant To Determining Whether A Minor Is In Custody For Miranda Purposes
So long as the child’s age was known to the officer at the time of police questioning, or would have been objectively apparent to a reasonable officer, the age is a factor that must be considered in determining whether the minor was in custody and thus was required to be advised of his or her Miranda rights. ([NF] J. D. B. v. North Carolina (6/16/2011, No. 09-11121) ____ US ____ [180 LEd2d 310; 131 SCt 2394].)
