F 372.4 Flight: Reverse Instructions

TABLE OF CONTENTS
F 372.4 Inst 1 (a-d) Absence Of Flight
F 372.4 Inst 2 FlightC Application To Third Party

F 372.4 Inst 1 (a-d) Absence Of Flight

*Add the following to CC 318 [Alternative a is patterned after CC 372; Alternative b is patterned after CC 370; Alternative c is patterned after CJ 2.52; Alternative d is patterned after CJ 2.51]:

Alternative a:

If the defendant did not flee [or try to flee] (immediately after the crime was committed/ [or] after (he/she) was accused of committing the crime), that conduct may show that (he/she) was aware of (his/her) guilt. It is up to you to decide the meaning and importance of this evidence.

Alternative b:

The People are not required to prove that the defendant had a motive to commit (any of the crimes/the crime) charged. In reaching your verdict you may, however, consider whether the defendant had a motive.

Having a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending to show the defendant is not guilty.

Alternative c:

The absence of flight of a person immediately after the commission of a crime, or after [he] [she] is accused of a crime, although the person had the opportunity to take flight, is a fact which may be considered by you in light of all other proven facts, in deciding whether or not the defendant’s guilt has been proven beyond a reasonable doubt. The weight to which such circumstances is entitled is a matter for the jury to determine.

Alternative d:

You may consider whether or not a person fled immediately after the commission of a crime, or after [he] [she] was accused of a crime as a circumstance in this case. The presence of flight may tend to establish a consciousness of guilt but this is not sufficient in itself to establish guilt. However, on the other hand, the absence of flight may tend to show that the defendant did not have a consciousness of guilt and this fact alone may be sufficient to create a reasonable doubt as to the defendant’s guilt. The weight and significance of these circumstances, if any, are matters for your determination.

Points and Authorities

Propriety Of Instruction On Absence Of Flight.—It has been recognized that the trial court may, in its discretion, give “an appropriate instruction on the absence of flight when supported by the evidence and of sufficient relevance in the context of the case.” (People v. Williams (1997) 55 CA4th 648, 652; see also People v. Sears (1970) 2 CA3d 180, 189 [jury should be instructed on request that, inter alia, lack of furtiveness may be considered in determining the issue of premeditation/deliberation]; cf. People v. Staten (2000) 24 CA4th 434, 459 [citing Williams re: constitutional argument].) Moreover, such an instruction is also required under due process principles.

It has been held that the defendant has no right to a lack of flight instruction. (See People v. Green (1980) 27 CA3d 1, 38.) However, this holding is based upon PC 352 and did not consider the question of whether the failure to instruct on lack of flight creates an instructional imbalance in violation of the 14th Amendment due process principles discussed below. People v. Staten, supra, 24 CA4th at 459 summarily concluded that Green “forecloses” any due process challenge without consideration of the authorities and analysis discussed below. In light of the constitutional analysis set forth below, Green and Staten do not foreclose a lack of flight instruction. (See People v. Dillon (1983) 34 CA3d 441, 473-74 [cases are not authority for propositions not considered].)

In Wardius v. Oregon (1973) 412 US 470, 473, fn 6 [37 LEd2d 82; 93 SCt 2208], the U.S. Supreme Court warned that, A state trial rules which provide nonreciprocal benefits to the State when the lack of reciprocity interferes with the defendant’s ability to secure a fair trial” violate the defendant’s due process rights under the 14th Amendment. (See also, Washington v. Texas (1967) 388 US 14, 22 [18 LEd2d 1019; 87 SCt 1920]; Gideon v. Wainwright (1963) 372 US 335, 344 [9 LEd2d 799; 83 SCt 792]; Izazaga v. Superior Court (1991) 54 C3d 356, 372-77; Cf. Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69 Yale L.J. 1149, 1180-92 (1960).) Noting that the Due Process Clause A does speak to the balance of forces between the accused and his accuser,” Wardius held that Ain the absence of a strong showing of state interests to the contrary” there A must be a two-way street” as between the prosecution and the defense. (Wardius 412 US at 474.)

The need for such evidentiary fairness was also summarized in the following commentary in Wigmore: A [l]et the accused’s whole conduct come in; and whether it tells for consciousness of guilt or consciousness of innocence, let us take it for what it is worth, remembering that in either case it is open to varying explanations and not to be emphasized. Let us not deprive an innocent person, falsely accused, of the inference which common sense draws from a consciousness of innocence and its natural manifestations.” (II Wigmore on Evidence, §2, pg. 232 (J. Chadborn, rev. ed., 1979.)

Although Wardius involved reciprocal discovery rights, the same principle should apply to jury instructions. (See People v. Moore (1954) 43 C2d 517, 526-27 [A[t]here should be absolute impartiality as between the People and the defendant in the matter of instructions” ]; accord, Reagan v. United States (1895) 157 US 301, 310 [39 LEd 709; 15 SCt 610].) Therefore, instructions which give an unfair advantage to the prosecution violate the A balance” required by Wardius and implicate the due process clause of the 14th Amendment. (But see People v. Williams (1997) 55 CA4th 648, 652-53 [rejecting Wardius argument because flight and absence of flight A are not on similar logical or legal footings” and therefore instruction is not required sua sponte but may be given in trial court’s discretion].)

In the case of flight, a clear imbalance is created by allowing the prosecution to obtain a flight instruction and not allowing the defense to obtain a lack of flight instruction. The Green court holding was based upon the court’s conclusion that there are reasons why a guilty person may not flee. (27 C3d at 37.) However, the courts have long recognized that there are also reasons why an innocent person will flee:

A… [I]t is a matter of common knowledge that men who are entirely innocent do sometimes fly from the scene of a crime through fear of being apprehended as the guilty parties, or from an unwillingness to appear as witnesses. Nor is it true as an accepted axiom of criminal law that ‘the wicked flee when no man pursueth, but the righteous are as bold as a lion.’ Innocent men sometimes hesitate to confront a jury—not necessarily because they fear that the jury will not protect them, but because they do not wish their names to appear in connection with criminal acts, are humiliated at 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 [40 LEd 1051; 16 SCt 864]; see also Hickory v. United States (1896) 160 US 408, 416-17 [40 LEd 474; 16 SCt 327] [innocent people A may resort to deception]; Austin v. United States (D.C. Cir. 1969) 414 F2d 1155, 1157 and cases cited therein; People v. Jenkins (1979) 91 CA3d 579, 586.)

Hence, just as the jury may consider evidence of flight, notwithstanding the fact that innocent people may flee, so, too, should the jury consider evidence of lack of flight, notwithstanding the fact that guilty people may not flee. The logic of this analysis is illustrated by the Ninth Circuit’s decision in Standen v. Witley (9th Cir. 1993) 994 F2d 1417, 1425-26, where the court relied, in part, upon the defendant’s failure to flee or otherwise demonstrate a consciousness of guilt as evidence that the defendant was not guilty.

Similarly, U.S. v. Biaggi (2nd Cir. 1990) 909 F2d 662, 690 recognized the importance of consciousness of innocence evidence. [A When a defendant rejects an offer of immunity on the ground that he is unaware of any wrong doing about which he could testify, his action is probative of a state of mind devoid of guilty knowledge.” ] (Id. at 690.) Accordingly, such evidence is relevant to show a A consciousness of innocence” and its exclusion would be especially unfair when the prosecution is allowed to present evidence of consciousness of guilt. (Id. at 692.)

In sum, there is no rational basis upon which to justify the current imbalance in the consciousness of guilt instructions which decidedly favors the prosecution. [Compare CC 370 which instructs the jury upon the Apresence” and Aabsence” of motive.] The federal constitutional principles discussed above require that if the jury is instructed upon factors which suggest a consciousness of guilt, it must also be instructed upon factors which suggest a consciousness of innocence.

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.

NOTES

The same reasoning set forth above is also applicable to other consciousness of guilt instructions. (See e.g., CC 362 and CC 371.)

CALJIC NOTE: See FORECITE F 2.52h.

F 372.4 Inst 2 Flight—Application To Third Party

*Modify CC 372 as follows:

Alternative a [CC 372 adaption] [added language is underlined; deleted language is stricken]:

If the defendant _______________ <insert name of third party suspect> fled [or tried to flee] (immediately after the crime was committed/ [or] after (he/she) was accused of committing the crime), that conduct may show that (he/she) was aware of (his/her) guilt. If you conclude that the defendant _______________ <insert name of third party suspect> fled [or tried to flee], it is up to you to decide the meaning and importance of that conduct. However, Evidence that the defendant _______________ <insert name of third party suspect> fled [or tried to flee] cannot prove guilt by itself may be sufficient by itself to leave you with a reasonable doubt that the defendant is guilty.

Alternative b [CALCRIM 3400 Format]:

The prosecution must prove that the defendant is the person who _______________ <description of alleged crime e.g., committed the alleged robbery>. The defendant contends (he/she) did not commit the alleged _______________ <description of alleged crime e.g., committed the alleged robbery> and that it was _______________ <name of third party suspect> who committed the crime. The people must prove that the defendant committed the crime. The defendant does not need to prove that _______________ <name of third party suspect> committed the crime. If, after considering all the evidence including the evidence of _______________’s <name of third party suspect> guilt you have a reasonable doubt that the defendant is guilty, you must find him not guilty.

Points and Authorities

This Court Has The Power And Duty To Grant This Instruction Request.—[See CALCRIM Motion Bank # CCM-001.]

Right To Defense Theory Instructions Generally.—See FORECITE F 315.1.2 Inst 2.

Right To Instruction On Flight Of Third Party.—It is well-established that the defendant may rely upon the theory that a third party committed the charged offense. (People v. Edelbacher (1989) 47 CA3d 983, 1017; People v. Hall (1986) 41 CA3d 826, 833.) It is also well-settled that the defendant has a right to pinpoint instructions upon his/her theory of the defense and upon the applicability of the burden of proof to that theory. (People v. Saille (1991) 54 CA3d 1103, 1120; People v. Wright (1985) 45 CA3d 1126, 1136-37; People v. Adrian (1982) 135 CA3d 335, 342; EC 502; FORECITE PG III(A) & PG III(D).)

Therefore, when there is evidence of flight by a third party suspect the defense is entitled to a defense theory instruction on this point. (See People v. Henderson (2003) 110 CA4th 737, 743-44 [“. . . a defendant relying on a third party culpability defense is entitled to have the trial court give an appropriate pinpoint instruction on the issue of the alleged flight of the third party . . .”].)

Alone Sufficient To Leave Jurors With A Reasonable Doubt.—See FORECITE F 301 Inst 13.

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 4.5 [Right To Present Evidence And Fair Opportunity To Defend]
FORECITE CG 6.5 [Instructions Must Be Balanced Between Defense And Prosecution]

In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

NOTES

[See Brief Bank # B-759 for additional briefing on this issue.]

CALJIC NOTE: See FORECITE F 2.03d.