SERIES 300 EVIDENCE
F 362 NOTES
TABLE OF CONTENTS
F 362 Note 1 False Statements: Arbitrary Inference As Denial Of Due Process
F 362 Note 2 Inapplicable To False Statements Which Violate Miranda
F 362 Note 3 False Statements Must Relate To Defendant‘s Criminal Liability
F 362 Note 4 CC 362 Inappropriate Where Defendant Later Confesses
F 362 Note 5 False Statements Only Applicable To Collateral Facts Or Incredible Statements
F 362 Note 6 False Statement Instruction As Prosecution Pinpoint Instruction
F 362 Note 7 Defense Objection Precludes Instruction Which Benefits Defendant
F 362 Note 8 Applicability Of Falsehood Instruction When Defendant Does Not Contest Identity
F 362 Note 9 Consciousness Of Guilt Not Alone Sufficient To Prove Guilt Or Supply Missing Elements
F 362 Note 10 Constitutionality Of False Statement Instruction Upheld By 9th Circuit
F 362 Note 11 False Statement Instruction Not Permissible Unless Substance Of The Statement Is Presented In Evidence
F 362 Note 12 Name Change As Explanation For Providing False Name To Police
F 362 Note 13 Introduction Of Un-Mirandized Statement For Exculpatory Value
F 362 Note 14 Un-Mirandized Statement: Introduction By Prosecution To Impeach
F 362 Note 15 False Statements: Inference Of Guilt
F 362 Note 16 Challenge To CALCRIM 362 As Duplicative Of Circumstantial Evidence Instruction
F 362 Note 17 Consciousness Of Guilt As Improper Comment On The Evidence
F 362 Note 18 Instruction On Consciousness Of Guilt Inference Improper Without Supporting Evidence
F 362 Note 19 False Statement Must Be Made Prior To Trial
Return to Series 300 Table of Contents.
F 362 Note 1 False Statements: Arbitrary Inference As Denial Of Due Process
In People v. Bacigalupo (1991) 1 C4th 103, 128, the court rejected the argument that the consciousness of guilt instruction violates due process by allowing the jury to draw arbitrary inferences from the defendant’s false statements. (See County Court of Ulster County v. Allen (1979) 442 US 140, 157 [60 LEd2d 777; 99 SCt 2213].) However this issue may be raised on certiorari or federal habeas if preserved in state court. (See generally, FORECITE PG VII.)
CALJIC NOTE: See FORECITE F 2.03 n1.
F 362 Note 2 Inapplicable To False Statements Which Violate Miranda
If statements which violate Miranda are admitted for purposes of impeaching the defendant’s testimony, CJ 2.03 must not be given without either (1) excluding from the scope of that instruction the Miranda-violative statements, or (2) instructing the jury that those statements may be considered only on the issue of defendant’s credibility. (See CJ 2.13.1; People v. Stelling DEPUBLISHED (1991) 234 CA3d 561.)
CALJIC NOTE: See FORECITE F 2.03 n3.
F 362 Note 3 False Statements Must Relate To Defendant’s Criminal Liability
If the defendant makes a false statement which does not relate to the basis for his or her alleged criminal liability, then the consciousness of guilt instruction is inappropriate. (See People v. Rankin (1992) 9 CA4th 430, 435-36.) For example, in Rankin the defendant’s false statement about where he obtained the stolen credit card did not really concern his liability for using the card—he never denied he knew the card was stolen—and, therefore, the false statement did not reflect a consciousness of guilt. (See also FORECITE F 371(B) Inst 5; F 372.1 Inst 3.)
CALJIC NOTE: See FORECITE F 2.03 n4.
F 362 Note 4 CC 362 Inappropriate Where Defendant Later Confesses
In People v. Mattson (1990) 50 C3d 826, 871-72, the defendant made false pretrial statements about an offense with which he was not charged. Since the defendant had later given a full confession to those uncharged crimes, the Supreme Court agreed that “the probative value of, and inference of consciousness of guilt from, the initial denial was tenuous.” (Id. at 872.)
Accordingly, CC 362 should not be given in such circumstances.
CALJIC NOTE: See FORECITE F 2.03 n5.
F 362 Note 5 False Statements Only Applicable To Collateral Facts Or Incredible Statements
In United States v. Littlefield (1st Cir. 1988) 840 F2d 143, the falsehood consciousness of guilt instruction was criticized on the grounds that it is superfluous (i.e. the jury must already believe the government’s case in order to disbelieve the defendant). Thus, Littlefield suggests the instruction should be limited to situations where: (1) the defendant’s statement involves “a matter collateral to the facts establishing guilt” or (2) the defendant’s statement is “so incredible that its very implausibility suggests that it was created to conceal guilt.” (Id. at 149.) (See People v. Wimberly (1992) 5 CA4th 773, 795-96, fn 18 [Littlefield argument recognized but not resolved].)
See also FORECITE F 362.2 Inst 6.
CALJIC NOTE: See FORECITE F 2.03 n6.
F 362 Note 6 False Statement Instruction As Prosecution Pinpoint Instruction
People v. Wright (1988) 45 CA3d 1126, 1135 holds that a defense pinpoint instruction is improperly argumentative if it directs the jury’s attention to specific evidence and “impl[ies] the conclusion to be drawn from that evidence.” (People v. Harris (1989) 47 CA3d 1047, 1098, fn 31.) [See also FORECITE PG III(B); F 372 Note 10; F 416.3 Inst 4.]
A functionally equivalent prosecution pinpoint instruction must therefore be held improperly argumentative as well. “There should be absolute impartiality as between the People and the defendant in the matter of instructions ….” (People v. Moore (1954) 43 C2d 517, 526-27; accord, Reagan v. United States (1895) 157 US 301, 310 [39 LEd 709; 15 SCt 610].) For example, it is improper to give an instruction which suggests that certain evidence reasonably supports the conclusion that the defendant harbored the requisite mental state. (People v. Fugatt DEPUBLISHED (1991) 229 CA3d 240.)
CC 362 tells the jurors that they may consider evidence that the defendant made a willfully false pretrial statement as tending to prove consciousness of guilt and, hence, as tending to show that the defendant is in fact guilty. Therefore, CC 362 is subject to objection under the logical application of Wright and the authorities cited above. (See A New Challenge to Prosecution Pinpoint Instructions, Therene Powell, CACJ Forum, Vol. 17 No. 4, pp. 13-19; but see People v. Jackson (1996) 13 C4th 1164, 1224 [CJ 2.03, CJ 2.04, CJ 2.52 and CJ 2.06 are not improper pinpoint instructions because the cautionary nature of the instructions benefits the defense, admonishing the jury to circumspection regarding evidence that might otherwise be considered decisively inculpatory].) (See FORECITE F 200.5 Inst 2 for argument under Jackson [defendant should be able to waive as a benefit].)
The courts of appeal have been willing to hold that overly specific prosecution instructions are improper. (See discussion of People v. Fugatt DEPUBLISHED (1991) 229 CA3d 240 in FORECITE F 8.11 n2; see also People v. Borango UNPUBLISHED PORTION of opinion (F013523), holding that an instruction specifically referring to the defendant’s pretrial statement to the police was an improper pinpoint instruction under Wright.)
However, in People v. Bacigalupo (1991) 1 C4th 103, 127-28, the court held that CJ 2.03 is not objectionable as argumentative or biased. (See also People v. Kelly (1992) 1 C4th 495, 531-32 [CJ 2.03 not an improper pinpoint instruction].)
NOTE: The court’s reasoning in Kelly is unpersuasive.
It concluded that CJ 2.03 is not an improper pinpoint instruction because it also informs the jury that the consciousness of guilt evidence “is not sufficient by itself to prove guilt.” The court argued that this language saved the instruction because the defendant does not quarrel with that language and “[i]f the court tells the jury that certain evidence is not alone sufficient to convict, it must necessarily inform the jury, either expressly or impliedly, that it may at least consider the evidence.” This mischaracterizes the issue. The defendant’s contention was that CJ 2.03 should not have been given at all. The fact that a portion of the instruction may have been acceptable to the defendant does not answer the argument.
Since the Supreme Court’s rejection of this argument in Bacigalupo and Kelly, the court has continued to reject defense pinpoint instructions which are operatively identical to the consciousness of guilt instructions such as CJ 2.03 and CJ 2.52. (See, e.g., People v. Earp (1999) 20 C4th 826, 886 [CSC upheld trial court’s refusal to give defense pinpoint instruction because it invited the jury to “draw inferences favorable to one of the parties from specified items of evidence” and, therefore, was “argumentative” ]; People v. Michaels (2002) 28 C4th 486, 539 [instruction on specific evidence properly rejected as argumentative]; see also People v. Cash (2002) 28 C4th 703 [prosecution permitted to relate CJ 2.06 to specific evidence].) This continued disfavoring of defense pinpoint instructions and favoring of analogous prosecution instructions implicates the due process clause of the federal constitution (5th and 14th Amendments).
In jurisdictions where such instructions are given, it may still be argued that they are an improper comment on the evidence. This argument is especially forceful if other similar defense oriented instructions are not allowed. “There should be absolute impartiality as between the People and the defendant in the matter of instructions ….” (People v. Moore (1954) 43 C2d 517, 526-27; accord, Reagan v. U.S. (1895) 157 US 301, 310 [15 SCt 610; 39 LEd 709].) Hence, if the prosecution is permitted to obtain consciousness of guilt instructions which comment on the evidence and the defense is not, the due process clause of the federal constitution may be implicated. (See Wardius v. Oregon (1973) 412 US 470, 475-76 [93 SCt 2208; 37 LEd2d 82]; see also Cool v. United States (1972) 409 US 100, 103 n. 4 [34 LEd2d 335; 93 SCt 354] [reversible error to instruct jury that it may convict solely on the basis of accomplice testimony but not that it may acquit based on the accomplice testimony].)
See also FORECITE F 372 Note 10.
CAVEAT: Counsel should consider whether this issue raises federal constitutional issues which should be preserved in state court. (See generally, FORECITE PG VII.)
CALJIC NOTE: See FORECITE F 2.03 n8.
F 362 Note 7 Defense Objection Precludes Instruction Which Benefits Defendant
See FORECITE F 362.1 Inst 9.
F 362 Note 8 Applicability Of Falsehood Instruction When Defendant Does Not Contest Identity
The defendant’s false statements and/or suppression or refusal to provide evidence warrants the giving of a consciousness of guilt instruction even if the defendant only contests intent to kill at trial. (People v. Clark (1993) 5 C4th 950, 1022.)
However, there remains a federal constitutional issue as to whether the nature or degree of guilt may be rationally inferred from consciousness of guilt evidence. (See FORECITE F 371(A-2) Inst 2 and FORECITE F 376 Inst 2; see also People v. Crandell (1988) 46 C3d 833, 871 [“A reasonable juror would understand ‘consciousness of guilt’ to mean ‘conscious of some wrongdoing’ rather than ‘consciousness of having committed the specific offense charged.’ ” ].)
CALJIC NOTE: See FORECITE F 2.03 n10.
F 362 Note 9 Consciousness Of Guilt Not Alone Sufficient To Prove Guilt Or Supply Missing Elements
The California Supreme Court has repeatedly approved instructions which admonish the jury that specific forms of consciousness of guilt, such as flight, false statements, destruction of evidence, etc., are not alone sufficient to prove guilt. (See e.g., People v. Holloway (2004) 33 C4th 96, 142; see also People v. Jenkins (1979) 91 CA3d 579 [evidence of falsehoods, attempts to fabricate evidence, and efforts to suppress evidence are, in themselves, sufficient to establish guilt].) Similarly, the legislature and CALCRIM instructions provide for such cautionary language. (See e.g., PC 1127c; CALCRIM 362, CC 371, CC 373.)
These California authorities are consistent with a wide range of authorities from other states which have recognized that consciousness of guilt evidence is not alone sufficient to convict. (See e.g., Jackson v. State (FL 1991) 575 So2d 181, 188-89 [flight instruction permissible only “where there is significantly more evidence against the defendant than flight standing alone” ]; State v. Freeney (CT 1994) 637 A2d 1088, 1100 [“[b]asic fairness and due process of law require that the trial court be even handed and instruct the jury that there could be other reasons for the defendant’s flight” ]; Commonwealth v. Robles (MA 1996) 666 NE2d 497, 504 [“the charge properly instructed the jury that consciousness of guilt alone is insufficient evidence of guilt …” ]; Commonwealth v. Lawrence (MA 1989) 536 NE2d 571, 582; Commonwealth v. Toney (MA 1982) 433 NE2d 425, 432; State v. Myers (NC 1983) 305 SE2d 506, 511 [“[P]roof of flight, standing alone, is never sufficient to establish guilt” ]; State v. Voit (OR 1973) 506 P2d 734, 739 [” … even if the jury resolved the credibility issue favorably to the state, the only fact proved thereby would be that defendants were lying. Such proofs cannot serve as a substitute for affirmative proofs that defendants committed the crime charged” ].) This is so because consciousness of guilt evidence such as flight, without any other evidence, “can be as consistent with innocence as it is with guilt.” Therefore, such evidence, by itself, cannot support a conviction. (State v. Giant (MT 2001) 37 P3d 49, 59.)
And, such cautionary limitations on consciousness of guilt are also necessary to comply with the California and United States Constitutions. (See FORECITE CG 5.16 [Consciousness Of Guilt]; see also 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 13 [if death penalty is charged].
CALJIC NOTE: See FORECITE F 2.03 n11.
See also FORECITE F 370 Inst 8
F 362 Note 10 Constitutionality Of False Statement Instruction Upheld By 9th Circuit
In Turner v. Marshall (9th Cir. 1995) 63 F3d 807, 819-20, the court held that CJ 2.03 does not violate any constitutional rights so long as the instruction does not state that inconsistent statements constitute evidence of guilt, but “merely” that the jury may consider the false statements as indicating a consciousness of guilt.
CALJIC NOTE: See FORECITE F 2.03 n13.
F 362 Note 11 False Statement Instruction Not Permissible Unless Substance Of The Statement Is Presented In Evidence
People v. Merkley (A072142, 11/31/96) [unpublished portion] held that is it improper to give CJ 2.03 regarding false statements made prior to trial unless the actual substance of the pre-trial statement was presented into evidence. The mere fact that the defendant acknowledged the existence of such a statement was held to be insufficient to support the instruction.
CALJIC NOTE: See FORECITE F 2.03 n14.
F 362 Note 12 Name Change As Explanation For Providing False Name To Police
A person may change his or her name at any time, lawfully, by the “usage method.” (CCP 1279.5.) This is done by discontinuing one name and assuming another. (Ibid.; see also Lee v. Superior Court (1992) 9 CA4th 510, 519; In re Ritchie (1984) 159 CA3d 1070, 1072.) Hence, if there is evidence that the defendant had used the name on a prior occasion, an instruction on the “usage method” of changing one’s name may be appropriate. Such an instruction could be applicable to a charge under PC 148.9 or to the prosecution’s claim that the defendant used a false name and thus revealed a consciousness of guilt.
CALJIC NOTE: See FORECITE F 2.03 n15.
F 362 Note 13 Introduction Of Un-Mirandized Statement For Exculpatory Value
(See People v. Williams (2000) 79 CA4th 1157, 1167 [if defendant introduces un-Mirandized statement for its exculpatory value, court may give CJ 2.03].)
CALJIC NOTE: See FORECITE F 2.03 n17.
F 362 Note 14 Un-Mirandized Statement: Introduction By Prosecution To Impeach
If the prosecution introduces the statement to impeach, CALJIC 2.03 may not be given (People v. Williams (2000) 79 CA4th 1157, 1169; Hinman v. McCarthy (9th Cir. 1982) 676 F2d 343)].)
CALJIC NOTE: See FORECITE F 2.03 n18.
F 362 Note 15 False Statements: Inference Of Guilt
People v. Williams (2000) 79 CA4th 1157, 1168 [jury may infer guilt from false or misleading statements made to police without Miranda warnings].
CALJIC NOTE: See FORECITE F 2.03 n19.
F 362 Note 16 Challenge To CALCRIM 362 As Duplicative Of Circumstantial Evidence Instruction
For a potential challenge to CALCRIM 362 on the basis that it is merely a restatement of the general circumstantial evidence instruction, see FORECITE PG VII(C)(9.1).
CALJIC NOTE: See FORECITE F 2.03 n20.
F 362 Note 17 Consciousness Of Guilt As Improper Comment On The Evidence
See FORECITE F 372 Note 10.
F 362 Note 18 Instruction On Consciousness Of Guilt Inference Improper Without Supporting Evidence
(See FORECITE PG VII(C)(7.1).)
F 362 Note 19 False Statement Must Be Made Prior To Trial
The Advisory Committee on Jury Instructions Report (July 10, 2009, pp. 3-4 [http://www.courtinfo.ca.gov/jc/documents/reports/081409item2.pdf]) stated:
In People v. Beyah (2009) 170 CA4th 1241, 1247-49, review denied (Apr. 29, 2009) the Court of Appeal invited the committee to clarify that CALCRIM No. 362, Consciousness of Guilt: False Statements refers to a defendant’s statements made before trial. Otherwise the jury might conclude the admonition was directed at a defendant’s trial testimony. The committee clarified that point.
The clarification amended the instruction to inform the jurors that the jury can consider “a false or misleading statement before this trial relating to the charged crime.” (CC 362.)