SERIES 300 EVIDENCE
F 372.3 Flight: Cautionary Instructions
TABLE OF CONTENTS
F 372.3 Inst 1 Defendant’s Flight: Prosecution Must Prove Every Essential Fact
F 372.3 Inst 2 Multiple Forms Of Consciousness Of Guilt Not Alone Sufficient To Convict
F 372.3 Inst 3 Flight: Probative Value Reduced By Passage Of Time
F 372.3 Inst 4 Flight: AFeelings Of Guilt” Do Not Reflect Actual Guilt
F 372.3 Inst 5 Intent To Avoid Arrest Or Observation Does Not Necessarily Reflect Consciousness Of GuiltC Alternative Explanations
Return to Series 300 Table of Contents.
F 372.3 Inst 1 Defendant‘s Flight: Prosecution Must Prove Every Essential Fact
*Add at end of CC 372:
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.
[Source: CALCRIM 376, paragraph 4.]
Points and Authorities
See FORECITE F 371(A-3) Inst 1.
F 372.3 Inst 2 Multiple Forms Of Consciousness Of Guilt Not Alone Sufficient To Convict
*Modify last sentence of CJ 2.52 as follows [added language is underlined; deleted language is stricken]:
Evidence that the defendant fled [or tried to flee] by itself or in combination with [other alleged consciousness of guilt evidence] [the alleged ________ <insert other specific consciousness of guilt evidence> is insufficient to <<cannot>> prove guilt <<by itself>>.
Points and Authorities
See FORECITE F 371(A-3) Inst 2.
CALJIC NOTE: See FORECITE F 2.52l.
F 372.3 Inst 3 Flight: Probative Value Reduced By Passage Of Time
*Add to CC 372:
The more remote in time the alleged flight is from the commission or accusation of an offense, the greater the likelihood that it resulted from something other than feelings of guilt concerning that offense.
Points and Authorities
Passage Of Time Reduces Probative Value.—“The more remote in time the alleged flight is from the commission or accusation of an offense, the greater the likelihood that it resulted from something other than feelings of guilt concerning that offense.“ (U.S. v. Myers (5th Cir. 1977) 550 F2d 1036, 1051; see also U.S. v. Blanco (9th Cir. 2004) 392 F3d (382, 395-96; U.S. v. Silverman (9th Cir. 1988) 861 F2d 571, 581.)
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 5.16 [Consciousness Of Guilt]
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 2.52m.
F 372.3 Inst 4 Flight: AFeelings Of Guilt“ Do Not Reflect Actual Guilt
*Replace CC 372 with the following:
Alternative a:
At most, flight may provide the basis for an inference that the defendant had feelings of guilt. However, feelings of guilt, which are present in many innocent people, do not necessarily reflect actual guilt.
Alternative b:
Intentional flight by a defendant after he is suspected of the crime [for] which he is now on trial may be considered by you in light of all the other evidence in the case. The burden is upon the government to prove intentional flight. Intentional flight after a defendant is accused of a crime is not alone sufficient to conclude that he is guilty. Flight does not create a presumption of guilt. At most, it may provide the basis for an inference of consciousness of guilt. But flight may not always reflect feelings of guilt. Moreover, feelings of guilt, which are present in many innocent people, do not necessarily reflect actual guilt. In your consideration of the evidence of flight, you should consider that there may be reasons for the defendant‘s actions that are fully consistent with innocence.
It is up to you as members of the jury to determine whether or not evidence of intentional flight shows a consciousness of guilt and the weight or significance to be attached to any such evidence.
Points and Authorities
Feelings Of Guilt.—U.S. v. Blanco (9th Cir. 2004) 392 F3d 382, 396-397 [observing that an instruction discussing flight in the context of A feelings of guilt“ had A significant cautionary language“ ]; U.S. v. Myers (5th Cir. 1977) 550 F2d 1036, 1051; Commonwealth v. Lavalley (MA 1991) 574 NE2d 1000, 1007; see also FORECITE F 372.1 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 5.1 [Highly Prejudicial Or Inflammatory Evidence]
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.
CALJIC NOTE: See FORECITE F 2.52n.
F 372.3 Inst 5 Intent To Avoid Arrest Or Observation Does Not Necessarily Reflect Consciousness Of Guilt — Alternative Explanations
*Add to CC 372:
Alternative a [CC 3400 Format]:
The people must prove that the defendant committed the charged offense. The defendant contends (he/she) did not commit the offense and that (he/she) [left the scene] [_______________ <e.g., ran from the police>] due to a [fear of the police] [fear of having to testify as a witness] [_______________ <other>]. However, defendant does not need to prove (his/her) reasons for [leaving the scene] [_______________ <other>].
If you have a reasonable doubt about whether the defendant ______________, you must find (him/her) not guilty.
Alternative b [CC 350 Format: Defense Evidence Presented]:
You have heard evidence that the defendant [_______________ <insert e.g., was afraid of being abused by the police; did not want to be a witness due to fear of reprisal; the defendant was stricken with terror; etc.>]. Consider that evidence, along with all the other evidence in attempting to decide whether the prosecution has proved the defendant guilty beyond a reasonable doubt.
Remember that you may not convict the defendant of any crime unless the prosecution has proven each fact essential to the conclusion that the defendant is guilty of that crime.
Points and Authorities
Intent To Avoid Arrest Or Observation Does Not Necessarily Reflect Consciousness Of Guilt — There are many reasons why a person will seek to avoid arrest or contact with the police that are consistent with innocence. These reasons include the following:
Reluctance To Be A Witness — “[I]t is common knowledge that men who are entirely innocent do sometime fly from the scene of a crime through fear of being apprehended as the guilty parties, or from an unwillingness to appear as witnesses.” (Wong Sun v. United States (1963) 371 US 471, 484 [9 LEd2d 441; 83 SCt 407], internal citations and quotation marks omitted.)
Terrorized Innocence — Also, acts allegedly showing a consciousness of guilt can be “explained by terrorized innocence as well as by a sense of guilt. After all, innocent people caught in a web of circumstances frequently become terror-stricken.” (Cooper v. U.S. (DC Cir. 1954) 218 F2d 39, 41.)
Lack Of Confidence In The Legal System — “Moreover, some innocent persons lack confidence that they can successfully endure the slings and arrows of arrest, incarceration, interrogation and prosecution — and accordingly flee.” (Pannell v. State (MS 1984) 455 So2d 785, 790 (Robertson, J., concurring).)
Avoiding Publicity, Humiliation, Or The Expense Of Defending Themselves — “Innocent persons are sometimes hesitant to submit to arrest and trial. Persons can be hesitant to submit to the law because they are not confident that the jury will protect them from wrongful conviction. They may also avoid arrest for other reasons — for example, because they do not wish their names to appear in connection with criminal acts, because they are humiliated by being obliged to incur the popular odium of an arrest and trial, or because they do not wish to be put to the annoyance or expense of defending themselves.” (Alberty v. U.S. (1896) 162 US 499, 511 [16 SCt 864; 40 LEd 1051]; see also U.S. v. Stewart (5th Cir. 1978) 579 F2d 356, 359.)
Fear Of The Police — “Among some citizens, particularly minorities and those residing in high crime areas, there is also the possibility that the fleeing person is entirely innocent, but, with or without justification, believes that contact with the police can itself be dangerous, apart from any criminal activity associated with the officer’s sudden presence. For such a person, unprovoked flight is neither “aberrant” nor “abnormal.” (Illinois v. Wardlow (2000) 528 US 119, 133 [145 LEd2d 570; 120 SCt 673].)
Right To Defense Theory Instruction On Alternative Explanation For Flight — When it is a defense theory that the defendant’s flight was the product of a fear or concern not relevant to guilt there should be the right to a pinpoint instruction on that theory upon request. (See generally FORECITE F 315.1.2 Inst 2.) Denial of such a request would violate the fundamental principle that “[t]here 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]; see also Wardius v. Oregon (1973) 412 US 470, 475 [93 SCt 2208; 37 LEd2d 82].)
Additional Points And Authorities Re: Alternative b —
“Consider” vs. “May Consider” — See FORECITE F 105.2 Inst 1.
“Leave with” vs. “Create” A Reasonable Doubt — See FORECITE F 350 Inst 2.
Sufficient “By Itself” For A Reasonable Doubt — See FORECITE F 301 Inst 13.
“Attempting To Decide“— See FORECITE F 100.7 Inst 1.
“Prosecution Must Prove” vs. “You Must Be Convinced” — See FORECITE F 224 Inst 5.
