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F 4.028 n1 Post Act Conduct Of Defendant To Negate Unlawful Intent.
People v. Pirnia DEPUBLISHED (2003) 113 CA4th 120 held that the defendant, a defrocked plastic surgeon who performed surgery without a license, argued that there was no evidence of the required intent for mayhem which is to vex, injure or annoy. The Court of Appeal held that the defendant’s actions subsequent to the surgery, where he refused to help the victim correct the problem, showed the intent. (But see FORECITE F 2.06a.) From this it follows that the defense should be able to use cooperative conduct to negate criminal intent.
F 4.028a
Consciousness Of Innocence Based On Rejection Of Immunity Offer
The defendant’s rejection of an offer of immunity from the prosecution 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 circumstance is entitled is a matter for you to decide.
Points & Authorities
“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.”] (U.S. v. Biaggi (2nd Cir. 1990) 909 F2d 662, 690.) Accordingly, such evidence is relevant to show 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.) The need for such evidentiary fairness was summarized in the following commentary in Wigmore: “Let 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; see also Commonwealth v. Martin (84) 19 Mass.App.Ct 117, 121-24 [472 NE2d 276]; see also People v. Williams (97) 55 CA4th 648, 652 [64 CR2d 203] [rejecting due process right to instruction on absence of flight but recognizing trial court’s discretion to give such an instruction under appropriate circumstances].)
The Supreme Court has also recognized the need for fairness between the defense and the prosecution. In Wardius v. Oregon (73) 412 US 470, 473, fn 6 [37 LEd2d 82; 93 SCt 2208], the U.S. Supreme Court warned that, “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 Fourteenth Amendment. (See also,Washington v. Texas (67) 388 US 14, 22 [18 LEd2d 1019; 87 SCt 1920]; Gideon v. Wainwright (63) 372 US 335, 344 [9 LEd2d 799; 83 SCt 792]; Izazaga v. Superior Court (91) 54 C3d 356, 372-77 [285 CR 231]; 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 “does speak to the balance of forces between the accused and his accuser,” Wardius held that “in the absence of a strong showing of state interests to the contrary” there “must be a two-way street” as between the prosecution and the defense. (Wardius 412 US at 474.)
Although Wardius involved reciprocal discovery rights, the same principle should apply to jury instructions. (See, People v. Moore (54) 43 C2d 517, 526-27 [275 P2d 485] [“There 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 ‘balance’ required by Wardius and implicate the due process clause of the 14th Amendment. (But see People v. Williams (97) 55 CA4th 648, 652-53 [64 CR2d 203] [rejecting Wardius argument because flight and absence of flight “are not on similar logical or legal footings” and therefore absence of flight instruction is not required sua sponte but may be given in trial court’s discretion].)
NOTES
The application of the above rationale to the defendant’s rejection of a plea bargain has been rejected. (See U.S. v. Greene (8th Cir. 1993) 995 F2d 793, 98-9.)
