SERIES 300 EVIDENCE
F 371(A-2) Suppression Of Evidence: Limiting Instructions
TABLE OF CONTENTS
F 371(A-2) Inst 1 Suppression Of Evidence: May Show That Defendant Thought He Or She Had Done Something Wrong Or Had “Feelings Of Guilt“—Not That Defendant Was “Aware Of His Or Her Guilt“
F 371(A-2) Inst 2 Suppression Of Evidence: Inapplicable To Nature Or Degree Of Guilt
F 371(A-2) Inst 3 Suppression Of Evidence: Limitation When Not Applicable To All Charged Offenses
F 371(A-2) Inst 4 Suppression Of Evidence: Limitation To Applicable Co-Defendant
F 371(A-2) Inst 5 Suppression of Evidence: Jury Not To Consider Suppression By Uncharged Accomplice As To Defendant
Return to Series 300 Table of Contents.
F 371(A-2) Inst 1 Suppression Of Evidence: May Show That Defendant Thought He Or She Had Done Something Wrong Or Had “Feelings Of Guilt”—Not That Defendant Was “Aware Of His Or Her Guilt”
*Modify CC 371(A), sentence 1 as follows [added language is underlined; deleted language is stricken]:
[If the defendant tried to hide evidence or discourage someone from testifying against (him/her), that conduct may show that (he/she) was aware of (his/her)guilt [thought (he/she) had done something wrong] [had feelings of guilt].
Points and Authorities
The CALCRIM Deficiencies.—There are two problems with the awareness of guilt language used in CC 371.
First, use of the term “aware” suggests that the defendant’s guilt is not subject to dispute. Thus, it is an improper comment on the evidence. (See FORECITE F 100.1 Inst 5; FORECITE CG 5.4.1.)
Second, even if furtive conduct is relevant, it may show only that the defendant thought he did something wrong or had “feelings of guilt,” not necessarily that he was aware of his guilt as to the charged offense. (See FORECITE F 371(A) Inst 4.) “Moreover, feelings of guilt, which are present in many innocent people, do not necessarily reflect actual guilt.” (Instruction given in U.S. v. Blanco (9th Cir. 2004.) 392 F3d 382, 396-97; see also FORECITE F 372.3 Inst 4.)
“Feelings Of Guilt” Do Not Reflect Actual Guilt.—See FORECITE F 372.3 Inst 4.
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 5.4.1 [Instructions That Suggest An Opinion As To An Essential Fact, An Element Or Guilt]
FORECITE CG 5.16 [Consciousness Of Guilt]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 371(A-2) Inst 2 Suppression Of Evidence: Inapplicable To Nature Or Degree Of Guilt
*Add to CC 371(A):
The defendant’s _______________ <insert alleged act of suppression e.g., destruction of evidence>, if any, is only relevant as to the questions of whether the defendant was afraid of being apprehended and whether the defendant thought [he] [she] had done something wrong. Such evidence may not be considered [in determining the degree of defendant’s guilt] [or] [in determining which of the charged offenses the defendant committed].
Points and Authorities
The essence of consciousness of guilt evidence is that it shows a fear of apprehension and, hence, is probative of whether the defendant committed the crime. Fear of apprehension, however, while relevant to the issue of whether a crime was committed, does not have any logical relevance as to the nature of the crime the defendant committed.
For example, fear of apprehension may be relevant on the question of whether a criminal homicide was committed but it does not establish that the homicide was committed with malice, aforethought, or premeditation and deliberation. (See, People v. Anderson (1968) 70 C2d 15, 32-33; Commonwealth v. Anderson (Mass. 1985) 486 NE2d 19, 23, fn 12; see also, LaFave (1972) Criminal Law, §33 at 565; Solomon v. Commissioner (E.D.N.Y. 1992) 786 F Supp 218, 225 [acts subsequent to victim’s death cannot show killing was committed with “depraved indifference.” ].)
In other words, while consciousness of guilt evidence is “highly probative of whether defendant committed the crime, … it does not bear upon the state of the defendant’s mind at the time of the commission of the crime.” (People v. Anderson, 70 C2d at 33; but see, People v. Anderson (1985) 38 C3d 58, 62 [dicta that post-offense conduct “may be relevant” to state of mind before crime, but not considering whether such evidence can show more than simply a criminal versus a non-criminal state of mind]; see also, U.S. v. Felix-Gutierrez (9th Cir. 1991) 940 F2d 1200, 1207 [probative value of flight depends, inter alia, upon whether consciousness of guilt concerns the crime charged].)
People v. Welch (1999) 20 C4th 701, 757 concluded that the trial court did not err in refusing to add the following to the standard flight instruction: “[w]hile this inference of guilt goes to identity it does not tell us anything about degree.” However, the court did not contest the legal accuracy of the requested modification, but merely concluded that the standard flight instruction “accurately conveys the potential significance of flight.” (20 C4th at 757.) Accordingly, it is still within the discretion of the trial court to give such a requested modification since it is a correct statement of the law and could only serve to further the jury’s understanding of the law.
In sum, the above authority suggests that an instruction may be requested limiting the jury’s consideration to whether the defendant committed a crime and not the degree or nature thereof. (The California Supreme Court, while rejecting arguments that the standard consciousness of guilt violates due process (see People v. Jackson (1996) 13 C4th 1164, 1224 [rejecting due process and IAC claims from failure to give instruction limiting applicability of consciousness of guilt instruction to commission of the act as opposed to mental state]; People v. Breaux (1991) 1 C4th 281, 304; People v. Griffin (1988) 46 C3d 1011, 1027; People v. Nicolaus (1991) 54 C3d 551, 579-80; People v. Crandell (1988) 46 C3d 833, 871), has not specifically addressed the propriety of a limiting instruction on request). (See EC 353.) This instruction would be particularly appropriate when the major issue facing the jury is the degree of the offense.
People v. Welch (1999) 20 C4th 701, 757 held that the trial court did not err in refusing to add to the flight instruction the following: “[w]hile this inference of guilt goes to identity it does not tell us anything about degree.” The court reiterated its belief that the standard flight instruction does not address a defendant’s mental state and does not direct or compel the drawing of an adverse inference in regard thereto.
However, when such an issue is a focus of the defense theory, there should be a right to a specific clarifying instruction on this point. (See FORECITE PG V(B)(1.1); PG V(B)(1.2); F 315.1.2 Inst 2.) Moreover, if such an instruction is refused as in Welch, counsel should be permitted to argue this point to the jury and to specifically inform the jury that this point is not included in the instructions because the California Supreme Court has held that the flight instruction does not and should not be considered by the jury to relate to the defendant’s mental state. (See FORECITE F 200.5 Inst 3.)
People v. Han (2000) 78 CA4th 797, 807 rejected an argument that a consciousness of guilt instruction should have been limited so as not to be considered regarding the degree of guilt or which of the charged offenses the defendant committed.
However, Han addresses neither the rationale nor the authority in support of this argument. Moreover, Han’s suggestion that the limiting instruction is “somewhat illogical because many people would run from a felony but few from an infraction,” is inapposite. When the defendant is charged with two felonies, or a single felony which may either be first degree murder, second degree murder or manslaughter, the fact that the defendant engaged in consciousness of guilt activity is simply not relevant as to which of the two serious felonies was committed or as to the degree of the homicide. It is not rational to assume that people would run from the commission of a first degree murder and not run from the commission of a second degree murder. No rational fact-finder could make such an evidentiary connection. This runs afoul of the constitutionally required burden on the State to prove guilt beyond a reasonable doubt. (See Ulster County Court v. Allen (1979) 442 US 140, 158 [60 LEd2d 777; 99 SCt 2213].) “[A] criminal statutory presumption must be regarded as ‘irrational’ or ‘arbitrary,’ and hence unconstitutional unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact upon which it is made to depend [fn omitted].” (Leary v. U.S. (1969) 395 US 6, 36 [23 LEd2d 57; 89 SCt 1532]; see also, Ulster County at 165-66.)
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 2.3 [Prosecution’s Burden Of Proof: Irrational Permissive Inference]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 5.16 [Consciousness Of Guilt]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
PRACTICE NOTE: Because the proposed modification is an accurate statement of the law, if the request is denied by the trial court, counsel should be permitted to argue the matter to the jury. Such argument may explain that no additional instruction was given on the issue because it is assumed that the jury will understand the standard instruction to prohibit the consideration of flight as to issues other than identity. (See FORECITE 200.5 Inst 3.)
NOTES
Under the appropriate circumstances, the selected use of stipulations (see e.g., People v. Ramos (1982) 30 C3d 553, 577; People v. Hall (1980) 28 C3d 143, 152) may enable counsel to prevent the giving of consciousness of guilt instructions to the jury. (See People v. Robinson UNPUBLISHED PORTION (1990) 221 CA3d 1586, recognizing that where consciousness of guilt applies to only one of two counts the instruction may be avoided by pleading guilty to the count to which it applies; see also People v. Breaux (1991) 1 C4th 281, 304; People v. Griffin (1988) 46 C3d 1011, 1027 [concession short of actual guilty plea does not remove issue from jury’s consideration]; see also FORECITE F 372.2 Inst 3 for proposed instruction limiting consciousness of guilt to the applicable charge.)
See also, FORECITE F 372.2 Inst 2, FORECITE F 372.2 Inst 4, FORECITE F 376 Inst 2, and FORECITE F 371(A-2) Inst 2.
CALJIC NOTE: See FORECITE F 2.06a.
F 371(A-2) Inst 3 Suppression Of Evidence: Limitation When Not Applicable To All Charged Offenses
See FORECITE F 372.2 Inst 3.
F 371(A-2) Inst 4 Suppression Of Evidence: Limitation To Applicable Co-Defendant
Use CC 371, final paragraph; see also FORECITE F 372.2 Inst 4.
F 371(A-2) Inst 5 Suppression of Evidence: Jury Not To Consider Suppression By Uncharged Accomplice As To Defendant
See FORECITE F 372.2 Inst 5.
