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F 2.009a
Cautionary Instruction: Defendant’s Absence
SAMPLE INSTRUCTION # 1:
The defendant has voluntarily absented [herself] [himself] from the proceedings. You shall disregard the defendant’s absence and it shall have no bearing on your determination of the case.
SAMPLE INSTRUCTION # 1:
You may have noticed that the defendant is absent. You [must not consider] [are to completely disregard] the defendant’s absence in arriving at your verdict.
Points and Authorities
A trial may proceed in a defendant’s absence if he or she was present on the first day of jury selection. (PC 1043(b)(2); People v. Gutierrez (2003) 29 C4th 1196 [130 CR2d 917]; People v. Granderson (98) 67 CA4th 703 [79 CR2d 268].) In People v. Sully (91) 53 C3d 1195, 1240 [283 CR 144], the court stated that an instruction admonishing the jury to disregard the defendant’s absence at the penalty trial “would have been proper on defendant’s timely request.”
Sample Instruction # 2 is based on People v. Pigage (2003) 112 CA4th 1359, 1367-68, 1370-75 [prosecutor’s reference to defendant’s absence cured because the trial court immediately instructed the jury not to consider defendant’s absence as evidence of guilt].) “There [can be] many explanations for defendant’s absence having nothing whatsoever to do with consciousness of guilt. The court’s decision to preclude speculation on the reasons for defendant’s absence is well within its discretion.” (Pigage, 112 CA4th at 1374, n5.)
Reliance upon the defendant’s absence to convict would implicate the federal constitutional rights against self-incrimination and to trial by jury and due process (5th, 6th and 14th Amendments).
RESEARCH NOTES
See, Annotation, Defendant’s absence from trial: Necessity and content of instructions to jury respecting reasons for or inferences from accused’s absence from state criminal trial, 31 ALR4th 676 and Later Case Service.
CAVEAT: As with most cautionary or limiting instructions, counsel will have to determine whether the benefits of the instruction outweigh the danger that it might unduly emphasize the prejudicial matter. [See FORECITE F 2.002a.]
