Is Flight Instruction Prejudicial Even Though Defendant Absent by Judge’s Order?
July 23rd, 2019

In People v. Johnson (2018) 6 Cal.5th 541 the judge excluded Johnson from the courtroom for the entire trial after he assaulted his lawyer; the jurors never saw or heard him.  At guilt phase, the judge instructed the jury not to consider his absence, but also gave a standard flight instruction that allowed use, with caution, of evidence that the defendant fled after the crime “or after he’s accused of a crime.”

Johnson argued on appeal that this instruction might have led the jury to infer that he was absent because he fled, and they might have used that fact against him.


The CSC holds that the flight after accusation language probably should have been deleted. However, the error was held to be harmless:

“[T]he flight instruction was justified by evidence that defendant fled the murder scene. … Moreover, the prosecution in this case never argued that defendant’s absence from the trial constituted flight or reflected a consciousness of guilt, and the jury was instructed not to consider defendant’s absence from trial ‘in any way.’ We therefore see no reasonable likelihood that the jury considered defendant’s absence from trial as evidence of his guilt.” (Id. at 590.)

Tags: ,